Davenport v. Armstead

• Decision Date: 08 December 1952
• Docket Number: 21718,Nos. 21717,s. 21717
• Citation: 255 S.W.2d 132
• Parties: DAVENPORT v. ARMSTEAD et al.
• Court: Missouri Court of Appeals

Page 132

255 S.W.2d 132

DAVENPORT v. ARMSTEAD et al.

Nos. 21717, 21718.

Kansas City Court of Appeals, Missouri.

Dec. 8, 1952.

Harry A. Hall, Kansas City, for appellants.

Eugene C. Jeter, Warren S. Earhart, Kansas City, for respondent.

BROADDUS, Presiding Judge.

This is a suit for slander. Plaintiff recovered a verdict and judgment for $1000 actual and $4000 punitive damages and defendants have appealed.

The facts show that plaintiff, a former policeman, on May 4, 1949 was remodeling a residence property at 8204 Holmes Street, Kansas City, Missouri. The defendant, Frank Quinlan Construction Company was constructing the Jewish Home for the Aged located at 78th and Holmes Street and defendant, George W. Armstead, was its superintendent in charge of construction. On May 5, 1949 Armstead arrived on the job around 7:30 a. m. and discovered someone had broken the lock on the tool shed and a Skilsaw was missing. The police were notified and officers Frank Hanna and Joe Hill arrived about 9:30 a. m. to investigate the matter. They inspected the tool house and were advised that Ed Smith, a contractor who had been there earlier that morning to bid on grading work, had reported he had seen a man, who stated he was a plumbing inspector, leave the job driving a dark panel Chevrolet Truck. The police asked Armstead if he knew of a truck answering that description in the neighborhood. Armstead told them that a man, who later proved to be the plaintiff, was remodeling a house several blocks south who owned a truck answering that description and had been there on the job several times to sell lumber, pipe fittings and a skilsaw. The officers had also seen plaintiff's truck and advised Armstead to get the number of the missing skilsaw and they would cruise around the neighborhood. About two hours later they returned and advised Armstead they had located the truck and thought they heard the saw and asked Armstead to get in the police car and go with them to identify the skilsaw. They drove to plaintiff's home and the officers and Armstead got out. Plaintiff permitted the officers to look around and they told him that a skilsaw had been stolen and that a truck answering the description of his truck had been seen at the construction job that morning, and asked him if he had been by the construction job that morning, and was advised by plaintiff that he had. The skilsaw was not found. While the officers and the plaintiff were standing in the yard, Armstead said, 'You know God damn well you stole that saw.' They then got in the police car intending to go to see if Ed Smith could identify the plaintiff as the person he had seen that morning on the job. When Armstead informed the officers that Smith lived in Kansas, the matter was dropped and plaintiff got out of the car. Armstead in a loud voice told Hill 'That is the S. O. B. that took the saw.' The officers acted in a courteous manner in making the investigation. Plaintiff was not threatened with arrest or intimidated in any way by them. Armstead did not ask the officers to search plaintiff's house or truck or to arrest him. The officers took Armstead back to the construction job.

Defendants' first contention is that the court erred in failing to sustain their motions for directed verdicts. This claim is (a) that the alleged slander was absolutely privileged but, if not (b) it was, in any event, qualifiedly privileged.

The class of absolutely privileged communications is narrow. And the rule recognized, generally, is that communications to a law enforcement officer for the purpose of helping to bring a criminal to justice are not absolutely privileged. 33 Am.Jur. pp. 123 and 136, 53 C.J.S., Libel and Slander, Sec. 114, p. 190.

Was the alleged slander qualifiedly privileged? Defendant Armstead testified that he did not tell the police that he 'suspected' plaintiff Davenport of having been the thief; that he 'didn't have any idea who stole the saw'; and that he did not 'make any charge or accusation about Mr. Davenport taking the saw.' Defendants' amended answer stated: 'For further answer defendants allege that any statements made were privileged and made during the course of a police investigation for which these defendants would not be liable.'

In the case of Perdue v. Montgomery Ward & Co., Mo.App., 100 S.W.2d 341, 343, according to plaintiff's testimony, one Johns, defendant's employee, accused her of stealing a coat. In the testimony of Johns was the following:

'Q. Did you charge her with theft? A. No, sir--certainly not.

'Q. Did you, in any manner insinuate to her that you felt that she had stolen the coat? A. No, sir--in no manner whatever.'

In ruling upon defendant's contention that the trial court should have directed a verdict in its favor, this court said:

'It is the defendant's theory that the defamatory words spoken by Johns were qualifiedly privileged; that the occasion was one of privilege; and that the words were spoken in good faith and without malice.

'In the case of Mock v. American Ry. Exp. Co., Mo.App., 296 S.W. 855, 858, the defendant's agent, Long, was under duty to protect the defendant's shipment of merchandise. While performing that duty, Long said to the plaintiff in the hearing of another employee of the defendant, 'You delivered this shipment and deliberately stole it.' The defense was denial and privilege. In deciding the question of privilege the court said: 'We fail to see how it can be successfully contended that there is any qualified privilege present in this case. Defendant's own testimony shows that Long did not believe to be true the accusation he made against plaintiff.' In speaking of the defense of privilege, the court in the case of Warren v. Pulitzer Publishing Co., 336 Mo. 184, 200, 78 S.W.2d 404, 412, said: 'Likewise, since there is no right to knowingly spread false facts about anyone there can be no question of privilege to do that.'

'In the case of Conrad v. Allis-Chalmers Mfg. Co., 228 Mo.App. 817, 73 S.W.2d 438, 449, one of the defendants, the writer of the alleged libel, testified in effect that at the time he wrote the libel he did not believe that the statements therein were true. In deciding the question of privilege this court, speaking through Judge Reynolds, said: 'There could, then, be no good faith in writing it (libel) or privilege or justification accorded it in any event, whether * * * as a comment or an alleged fact.'

'The defendant's answer alleges that whatever words were in fact spoken by Johns were 'uttered in good faith and without malice toward the plaintiff; * * * that whatever utterance was made by him was made in good faith in the performance of' the duties of his employment. If it were true that Johns spoke the defamatory words, believing as he said he did that plaintiff was not guilty of a theft, then his testimony disproves these essential allegations. It must be borne in mind that the jury by its verdict said that Johns knowingly, falsely, and maliciously spoke the words attributed to him. If in fact, and in so far as this court is concerned it is a fact, Johns, notwithstanding he knew or believed that the plaintiff was not guilty of a theft, nevertheless said in effect, that she was a thief. The accusation in these circumstances was not privileged.

'It may truly be said upon the authority of the decisions in this jurisdiction that, on an occasion such as the one involved in the instant case, a person who knowingly and falsely published that another is a thief cannot when brought into a court of competent jurisdiction to answer for the wrong, escape liability therefor upon the ground that the occasion was a privileged one or that the utterance was privileged or qualifiedly privileged.'

The above case which, in our opinion, is decisive upon this point was transferred to the Supreme Court and there the opinion of this court was sustained. 341 Mo. 252, 107 S.W.2d 12.

Defendants' second contention is that the court erred in giving plaintiff's Instruction I. They says: There is no evidence whatever that Armstead charged plaintiff with a burglary or of breaking into the office, nor is there any evidence whatever that the skilsaw was valued at $165. Plaintiff must plead and prove the slander as alleged.'

The instruction requires the jury to find that Armstead, 'in the presence and hearing of Frank Hanna and Joe A. Hill, spoke of and concerning the plaintiff, the following words, to-wit: 'You know damn well you took that saw' or 'You know God damn well that you stole that saw', or 'That's the son-of-a-bitch that took the saw', and that by the use of...