Courtney v. Blackwell

• Decision Date: 28 March 1899
• Citation: 51 S.W. 668,150 Mo. 245
• Parties: COURTNEY v. BLACKWELL.
• Court: Missouri Supreme Court

51 S.W. 668

150 Mo. 245

COURTNEY v. BLACKWELL.

Supreme Court of Missouri.

March 28, 1899.

APPEAL — REVIEW OF EVIDENCE — SLANDER — CANCELLATION OF RELEASE — EVIDENCE — AFFIRMANCE — STATUTE OF LIMITATIONS — HARMLESS ERROR — FORM OF VERDICT — TRIAL — STRIKING TESTIMONY — INSTRUCTIONS.

1. On appeal in an equity case, the supreme court will review the evidence, if it is before it, and reach its own conclusions on the facts, though the trial court has made special findings of fact.

2. After a young woman had commenced an action for slander that was not spoken in her presence, defendant procured a release from her of her cause of action on his agreeing to pay the costs and to give her an exoneration for publication. He falsely represented that he had not spoken the slander, and, having great influence over plaintiff's mother, induced her to threaten plaintiff that she would have to leave her home if she did not settle the matter. He represented to plaintiff that he would take her to a disinterested attorney for advice, and took her to his own attorney, and he also falsely represented that the witness by whom she expected to prove the slander was unreliable. Prior to the commencement of the action, defendant was plaintiff's teacher, to whom she was accustomed to look for advice and counsel. Held, that plaintiff was entitled to a cancellation of the release.

3. Plaintiff's act of accepting the exoneration after her confidence in defendant's disavowal had been shaken by having heard admissions of his utterance of the slander is not an affirmation of the release, where she "didn't have time to think," and was subject to the same influences that enabled defendant to procure the release.

4. Where, in an action for slander, defendant pleaded a release, and plaintiff amended the petition by inserting an additional count in equity for its cancellation after she had sought to avoid the effect of the release by alleging defendant's fraudulent procurement thereof in the replication, the running of limitations against the count for cancellation is terminated by the filing of the replication.

5. In an action containing two counts, the first one being to cancel a release of the cause of action sued on in the second, the defendant is not harmed by error in entering the decree canceling the release immediately after the trial on the first count, instead of postponing the entry until the completion of the trial on the second count.

6. On the subsequent trial on the first count the release is inadmissible.

7. An order overruling a motion to strike out an answer of a witness strikes out all portions of the answer which state what another said to the witness by reciting that what such other had said was incompetent and would be stricken out.

8. Defendant in an action for slander is not harmed by plaintiff's testimony that she failed to procure employment by reason of the slander, where no special damages are allowed by reason thereof.

9. Where, in an action for slander, defendant offers a release in evidence after it has been canceled, it is not error to instruct that the release is no bar to a recovery.

10. A judgment for slander will not be reversed because the jury erroneously assessed the damages in a lump as exemplary damages, instead of assessing separate amounts for the exemplary and the actual damages.

Valliant and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action for slander by Etta Hancock Courtney against James S. Blackwell. Judgment for plaintiff, and defendant appeals. Affirmed.

Turner & Hinton and C. B. Sebastian, for appellant. Odon Guitar, Webster Gordon, and W. M. Williams, for respondent.

BRACE, J.

This is an appeal from a decree and judgment of the circuit court of Boone county, in which the pleadings, finding, decree, and judgment are as follows:

"Petition.

"In the circuit court of Boone county, Missouri, June term, 1897. Etta Courtney (née Hancock), Plaintiff, vs. James S. Blackwell, Defendant. Plaintiff, for her second amended petition, leave of court being first had and obtained, states: That heretofore, to wit, on or about the 12th day of January, 1892, at the county of Boone and state of Missouri, it having been reported to E. C. Clinkscales, then marshal of the city of Columbia, in the state and county aforesaid, that a larceny of $30 or upwards had been committed in the dwelling house of one George D. Purinton, in said city, the said Clinkscales was approached by the defendant, who then and there entered into a conversation with said Clinkscales concerning said larceny; and the defendant did then and there, in the presence and hearing of the said E. C. Clinkscales, maliciously, falsely, and wantonly speak and publish of and concerning plaintiff the following false and slanderous words; that is to say: `Purinton and I have talked that matter all over, and I told him that I knew that girl [meaning the plaintiff] had taken that money the minute I heard of its disappearance; that, everywhere she goes, money disappears. She is an adventuress of the first water, and destined to become a noted crook;' then and there intending to charge and impute, and then and thereby falsely and maliciously charging and imputing, to plaintiff the crime of larceny in a dwelling house as aforesaid, and then and there being so understood by the said E. C. Clinkscales as imputing to and charging the plaintiff with the crime of larceny in a dwelling house as aforesaid, — and that, by reason of said slanderous charge so uttered and published of and concerning plaintiff by the defendant, she sustained damages in the sum of $25,000, and for which amount she instituted suit in the circuit court of Boone county, Missouri. That while said suit was pending and undetermined, and prior to the institution of this action, and on the 5th day of April, 1892, the defendant fraudulently procured and induced the plaintiff to execute and deliver to him a release, in writing, releasing and acquitting him from any and all liability for the damages sustained by plaintiff by reason of the aforesaid slander so uttered and published by him, and which said release is in words and figures as follows, to wit: `In the Circuit Court of Boone County. Etta Hancock, Plaintiff, vs. James S. Blackwell, Defendant. Whereas, the plaintiff instituted in the circuit court of Boone county an action against the defendant for damages, charging him with saying of and concerning her that he knew plaintiff had taken money, that money disappears wherever she goes, and that she was an adventuress, and was destined to become a noted crook; and whereas, defendant denies having uttered said words concerning plaintiff: Now, therefore, in consideration of the written retraxit this day delivered by defendant to plaintiff, and the sum of $10 for payment of court costs incurred up to date in said case, the said Etta Hancock by these presents agrees to withdraw said suit, and to give a written order to the clerk of the court for dismissal of the same from the docket, and she further agrees to quit and discharge said Blackwell from all liability for and on account of the charges made in said suit, and by these presents does acquit, discharge, and release said Blackwell from any and all liability for and on account of the words and charges contained in said suit, and any other words and charges of and concerning the plaintiff up to this date, to the end that all actions and causes of action for words uttered and published heretofore shall be, and the same are hereby, settled, released, and discharged forever, as against said Blackwell, defendant as aforesaid. Witness my hand this 5th day of April, 1892. Etta Hancock. Witness: Mrs. T. J. Hancock.' Plaintiff further states that the defendant induced her to sign said release by his false and fraudulent representations and wrongful conduct; that, several years prior to the date of said release, plaintiff's mother removed from her farm in Chariton county to reside temporarily at Columbia, for the purpose of educating the plaintiff and her sisters at the state university, and to enable the plaintiff to pursue a postgraduate course in said institution, and qualify herself as a teacher; that the plaintiff's father remained upon his farm in Chariton county; that, during part of the time plaintiff was attending the university, defendant was one of the professors thereof, and an instructor of plaintiff; that the family of the plaintiff and that of the defendant, until the time hereinafter indicated, were upon the most friendly and intimate terms; that the defendant professed great friendship for the plaintiff, and that as her teacher she looked to him for advice, and was accustomed to follow his directions, and that he claimed to be a special friend of her family, and plaintiff's mother and sisters, prior to the utterance of the language aforesaid, regarded defendant as a special friend, adviser, and counselor; that the plaintiff's mother, in view of the professed friendship of the defendant for the plaintiff and her family, did not believe that defendant had spoken the slanderous words hereinbefore set out about the plaintiff, and that defendant had great influence over the mother of the plaintiff, to whom he well knew plaintiff looked for advice, and by whom she would be governed in reference to the prosecution of her suit against him for damages for said slander, which was then pending in the circuit court of Boone county; that said defendant, knowing that he was guilty of the utterance of said slander, and intending fraudulently and by means of artifice and undue influence to procure a dismissal of said suit, and a release from the plaintiff of the damages for which he was liable, and well knowing that he had spoken of and concerning the plaintiff the aforesaid false and slanderous words, and had intended to charge, and had been understood as charging, that plaintiff...