Connell v. A. C. L. Haase & Sons Fish Company
| Decision Date | 31 December 1923 |
| Docket Number | 23470 |
| Citation | 257 S.W. 760,302 Mo. 48 |
| Parties | JOHN J. CONNELL v. A. C. L. HAASE & SONS FISH COMPANY, Appellant |
| Court | Missouri Supreme Court |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court; Hon. Wilson A Taylor, Judge.
Reversed and remanded.
Rassieur Kammerer & Rassieur and Jourdan, Rassieur & Pierce for appellant.
(1) The court erred in refusing to sustain the objection to the introduction of any evidence. (a) No cause of action was stated; the words counted upon are not libelous per se and the petition contains no inducement. Walsh v Pulitzer, 250 Mo. 142, Ann. Cas. 1914C, 985; Cook v. Pub. Co., 241 Mo. 344; McKim v. Moore, 237 S.W. 773. (b) Where the words are not libelous per se, Sec. 1263, R. S. 1919, does not obviate the necessity of an inducement. Cases supra. (c) The want of a proper inducement or colloquium cannot be supplied by the innuendo. 25 Cyc. 438; Authorities supra. (d) The words counted upon are not libelous per se as to the plaintiff: 1st, they do not impute a crime; 2nd, they do not tend to provoke plaintiff (or anyone) to wrath or expose him to public hatred; 3rd, plaintiff in nowise is mentioned or referred to in the words. (e) The crime of borrowing money (R. S. 1919, sec. 3367) upon a false statement is not charged against or necessarily imputed to plaintiff in the words because: 1st, he is not named, described or mentioned therein; 2nd, it does not appear from the words that the false report was respecting the financial condition or means or ability of the borrower to pay; 3rd, the words do not show that the false report was knowingly made; and 4th, the words do not show that the false report was submitted to the bank with intention on the part of plaintiff that it should be relied upon. (f) The words themselves to be libelous per se as imputing a crime must within themselves contain all elements necessary to constitute a crime. Krup v. Corley, 95 Mo.App. 640; Christal v. Craig, 80 Mo. 367; Velikanje v. Millichamp, 120 P. 876; McKim v. Moore, 237 S.W. 773. (g) If the words themselves do not have a libelous meaning, extrinsic facts showing that they do have such a meaning are necessary. Legg v. Dunleavy, 80 Mo. 558; Ukman v. Daily Record, 189 Mo. 393. (h) The petition does not allege that the reader of the letter understood therefrom that plaintiff was being charged with any of the things set forth in the innuendo. Lewis v. Humphries, 64 Mo.App. 466. (2) The court erred in refusing to direct a verdict for the defendant because: (a) The defendant did not publish the letter complained of. There was no evidence showing or tending to show that at the time Haase wrote the letter he was in the actual performance of any duty required of him by defendant as its agent. Fenskey v. Casualty Co., 264 Mo. 154; Washington Gas Light Co. v. Lansden, 172 U.S. 534; So. Exp. Co. v. Fitzner, 59 Miss. 581; Buckeye Cotton Oil Co. v. Sloan, 250 F. 712. (b) The statements set forth in the letter are true. It is the duty of the court to direct a verdict for defendant when the statement alleged to be libelous is true. Phillips v. Pub. Co., 238 S.W. 127. (c) The real meaning of the letter sued upon, in the light of the facts and circumstances, was not libelous per se. (d) There was no evidence that Mattlage or anyone understood that the letter charged the plaintiff with having made the fake charge, inflated the stock, or borrowed money on a false statement, and absent this requisite, a verdict should have been directed for the defendant. Byrne v. News Corp., 195 Mo.App. 272; Lemaster v. Ellis, 173 Mo.App. 343; Caruth v. Richeson, 96 Mo. 190. Evidence of witnesses, who read the alleged defamatory charge, where the same is not slanderous per se, as to their understanding of the meaning thereof, is admissible. 25 Cyc. 493; Smart v. Blanchard, 42 N.H. 137; Jones v. Banner, 172 Mo.App. 132; Sheppard v. Brewer, 248 Mo. 147. (e) Only a portion of the alleged libel was offered in evidence. Defendant had the right to have the whole of the alleged libel read as a part of plaintiff's case. Newell, Slander & Libel (3 Ed.) p. 378, sec. 368; Smith v. Cas. Co., 190 Mo.App. 452; Hagner v. Pulitzer Pub. Co., 158 S.W. 61. (3) Instruction 2 was erroneous because: (a) The excerpt from the letter sued on set forth in this instruction is not libelous per se. (b) This instruction authorized a recovery without a finding of facts which would give the words an actionable meaning. (c) This instruction is broader than the pleadings. Harriman v. Sayman, 193 S.W. 1001, 200 S.W. 296; Callahan v. Ingram, 122 Mo. 367. (d) This instruction authorized a recovery without requiring a finding that the reader of the letter understood that defendant had charged the plaintiff, himself, with having done any of the reprehensible things therein mentioned. Byrne v. News Corp., 195 Mo.App. 265; Lemaster v. Ellis, 173 Mo.App. 332; Caruth v. Richeson, 96 Mo. 186. (e) This instruction was error because it authorized a recovery for damages probably sustained by plaintiff. 25 Cyc. 530; Pauchan v. Godeau, 140 P. 952; Rolleg v. Lofton, 230 S.W. 330; Partello v. Mo. Pac. Ry. Co., 141 Mo.App. 162. (f) This instruction authorized a verdict upon a mere finding that the words quoted "referred" to plaintiff. (4) Instruction 1 was error for the same reasons assigned against Instruction 2. (5) Instruction 4 was error because it contained no requirement that the jury find that defendant intended to charge that plaintiff had "knowingly made or caused to be made, etc., with intent that it be relied upon," any false statement in writing. (6) Instruction 5 was erroneous in not limiting plaintiff's right to recover upon proof and a finding that the words had the meaning which was placed thereon by the innuendo in the petition. Harriman v. Sayman, 193 S.W. 1001, 200 S.W. 296; Callahan v. Ingram, 122 Mo. 367. (7) Instruction 6 was erronous in that it limits the jury to a consideration of whether the letter sued upon was libelous and if libelous the amount of plaintiff's damages. (8) Instruction 8 was erroneous in that it assumed that the defendant published the letter complained of. 25 Cyc. 552. (9) Instruction 10 was erroneous because: (a) It assumed that plaintiff was damaged by the alleged publication. (b) It authorized the jury to bring in a verdict for what plaintiff ought to receive and defendant ought to pay. (c) Matters which are speculative or damages that are remote are not recoverable. 25 Cyc. 530, sec. 2; Thompson v. Powning, 15 Nev. 209; Rowe v. Meyer, 169 N.W. 823; Beeson v. Gossard Co., 167 Ill.App. 561. (d) It singles out and unduly comments upon one portion of the evidence relating to damages, i. e., the wealth of the defendant. Taylor v. Traction Co., 184 Ill.App. 188; Loftus v. Ill. Coal Co., 181 Ill.App. 197. (10) Instruction 18 was erroneous in that it deprived the defendant of the benefit of the truth as a defense unless the words were found to mean a certain thing. The truth was a defense whatever the words meant. (11) Instruction 22 was erroneous in that it authorized a verdict in behalf of plaintiff upon a finding by the jury that the act of Haase was of service or benefit to the defendant, instead of requiring the jury to find that the act of Haase, in writing the letter, was done by him while in the actual performance of some duty required of him by defendant as its agent. Fenskey v. Cas. Co., 264 Mo. 154. (12) Instructions A, B and C should have been given because each of them submitted the issue of justification in specific form as applied to the evidence. (13) Instruction F should have been given because, if from the evidence the jury should find that it was no part of Haase's duty as the agent of the defendant, to write letters to third persons concerning any person connected with the Proctor-Connell Fish Company, there could have been no liability against defendant in this case. (14) Instructions H, I and J were withdrawal instructions relating to separate portions of the letter sued upon and each of them should have been given for the reasons heretofore stated. (15) Instruction L should have been given because, if Haase only intended to charge that the irregularities mentioned in the letter occurred while Connell was in charge of the Proctor-Connell business and such statement was true, then defendant was entitled to a verdict. (16) It was error to have admitted the second sheet only of the letter sued upon. Newell on Slander & Libel (3 Ed.) p. 378, sec. 368. (17) It was error to allow to be read in evidence the unsworn statement of Switzler, it being hearsay, and the defendant being afforded no right of cross-examination. Hesse v. Mo. Pac. Ry. Co., 40 Mo.App. 206; State v. Sutton, 64 Mo. 107; Pritchard v. Hooker, 114 Mo.App. 605; Gordon v. Burris, 141 Mo. 602; Moore v. Railway, 143 Mo.App. 675; Tate v. Railroad, 159 Mo.App. 475; Howell v. Sherwood, 242 Mo. 513. (18) The abandoned pleadings were inadmissible because: (a) There was no statement of fact in any of them which constituted an admission by defendant against its interests. (b) The amended answer did not confess the speaking of the words. Smith Bros. v. Agee, 59 So. 647; Williams v. McKey, 38 S.W. 730. (19) The court erred in allowing plaintiff to cross-examine Ellis as to whether or not he wrongfully took or embezzled funds of the Proctor-Connell Fish Company, because it was improper to allow a cross-examination of this witness on immaterial matters merely for the purpose of impeaching him thereon. (20) The court erred in allowing plaintiff to impeach Ellis upon immaterial matters because plaintiff was bound by Ellis's answers. State v. Brassfield, 81 Mo. 151; Taussig v. Shields, 26 Mo.App. 318; Manget v. O'Neil, 51 Mo.App. 35; Scharf v. Grossman, 59 Mo.App. 199; Carden v. Primm, 60 Mo.App....
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