Epps v. Duckett

• Decision Date: 16 July 1920
• Parties: W. P. EPPS, Appellant, v. CHARLES H. DUCKETT et al
• Court: Missouri Supreme Court

223 S.W. 572

284 Mo. 132

W. P. EPPS, Appellant, v. CHARLES H. DUCKETT et al

Supreme Court of Missouri, Second Division

July 16, 1920

Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

J. C Dyott for appellant.

(1) There was a conspiracy among the defendants to secure the appointment of Duckett as postmaster at Pomona, regardless of the rules and regulations of the civil service laws and regulations. 5 R. C. L. 1061. While the civil law does not recognize the act of the conspiracy within itself as actionable, but rather the damages flowing therefrom, when the parties to such an agreement to do an overt act in furtherance of an illegal combination, resulting in an injury to the third party, the conspiracy becomes actionable and the conspirators liable to the injured party for damages flowing from thier illegal conduct. 5 R. C. L. 1091; 12 C J. 581. The act becomes actionable when done in pursuance of a combination of persons, actuated by malicious motives, and not having the same justification as an individual. An act lawful in an individual can be subject to a civil conspiracy when done in concert, only where there is direct intention that injury shall result from it, or where the object is to benefit the conspirators to the prejudice of the public or the oppression of individuals and when such prejudice or oppression is the natural and necessary consequence. 5 R. C L. sec. 42, p. 1092; 12 C. J. sec. 102, p. 583; sec. 103, p 584, and note 82. (2) The connection between the parties once having been established then whatever was done in pursuance of the conspiracy, by one of the conspirators is to be considered as the act of all, and all are liable there-for, irrespective of the fact that they did not actively participate therein, or of the extent which they benefited thereby. 5 R. C. L. sec. 43, pp. 1093, 1094; 12 C. J. sec. 106, p. 586; Hunt v. Simonds, 19 Mo. 583; State v. Assurance Co., 251 Mo. 291. The defendants were guilty of unlawful acts and conduct in an effort to avoid the civil service for the benefit of the defendant Duckett. (3) There was a confederation or conspiracy or a combination between more than two persons to accomplish the appointment or selection of Duckett. The combination having been made then all persons connected with the matter were parties to the conspiracy and all equally liable for the acts of each other as well as their own acts. 3 Greenleaf on Evidence, sec. 93; State v. Walker, 98 Mo. 105; State ex rel. v. People's Ice Co., 246 Mo. 216. Everything said and done by conspirators with respect to the purpose of the conspiracy during its existence is admissible against all or either of the conspirators, whether in the presence of each other or not, and whether or not all the conspirators are included in the action. State v. Bobbitt, 228 Mo. 266. (4) The court erred in admitting specific evidence of specific offenses over the objection of the plaintiff. Sotham v. Drovers, 239 Mo. 606; Yager v. Bruce, 116 Mo.App. 493.

Green & Green and M. E. Morrow for respondents.

(1) Defamatory words which are themselves actionable are privileged by reason of the social relations of those who uttered them, when uttered to one having a common interest in or duty toward the person speaking. Yager v. Bruce, 116 Mo.App. 473; Holmes v. Fraternal Union, 222 Mo. 556. (2) Plaintiff must allege and prove actual malice when the alleged utterance was made to one having a common social or moral interest or duty in the subject matter toward those uttering the alleged false and slanderous words. Findley v. Steele, 159 Mo. 299; Holmes v. Fraternal Union, 222 Mo. 556; Garey v. Jackson, 193 S.W. 920; Sullivan v. Com. Co., 152 Mo. 268; Kersting v. White, 107 Mo.App. 265; 25 Cyc. 385. (3) When a man becomes a candidate for a public office his character for honesty and integrity and his qualification and fitness for the position are put before the public and are thereby made proper subjects for comment. Smith v. Burris, 106 Mo. 94; Eikchoff v. Gilbert, 124 Mich. 353; Coffin v. Brown, 94 Md. 190; Mattice v. Wilcox, 147 N.Y. 624; Putnam v. Browne, 155 N.W. 910. (4) A charge made in reference to an applicant for a postoffice employment is privileged, when made to a Government official, or one having appointing power, when made in good faith. Posnett v. Marble, 62 Vt. 480, 22 Am. St. 126; Coogler v. Rhodes, 38 Fla. 240. (5) None of the acts, words or utterances of respondents in this case constitute a conspiracy, either under the statute or at common law. Secs. 4705, 4706, R. S. 1909; Darrow v. Briggs, 261 Mo. 244; Com. Co. v. Hunt, 4 Metc. (Mass.) 123, 38 Am. Dec. 346. (6) The truth of the alleged false statement is always a good defense to an action for damages for libel or slander. Sec. 14, Art. 2, Mo. Constitution; McAtee v. Vanlandingham, 75 Mo.App. 45; McCloskey v. Pulitzer, 152 Mo. 339; Ukman v. Daily Record Co., 189 Mo. 378; Wilson v. Sun Pub. Co., 148 P. 774. (7) Bad character once shown in a person, the presumption is that it continues to be bad, until the contrary state is proved. Greenleaf on Evidence (13 Ed.), sec. 41; 2 Chamberlyne on Evidence, sec. 1045; Nelson v. Jones, 245 Mo. 579; People v. Squires, 49 Mich. 487, 13 N.W. 828. (8) Character of a party in civil action may be inquired into if put in issue by nature of the proceeding. Gourley v. Callahan, 176 S.W. 239. (9) It is not reversible error to admit in evidence testimony of specific acts of immorality of a party to the action in a civil case; and especially is this true when his character is a matter of investigation in the case. Sotham v. Tel. Co., 239 Mo. 621. (10) Where mitigation and justification are pleaded, the evidence may take a much wider range than where a general denial alone is made. Sec. 1838, R. S. 1909; Ogle v. Sidwell, 167 Mo.App. 292; Baldwin v. Fries, 46 Mo.App. 288.

OPINION

WALKER, J.

This is an action for damages brought in the Circuit Court of Howell County by appellant Epps against respondents, in which it is charged that they conspired to prevent and did prevent him from obtaining the appointment as postmaster at Pomona, a small village in that county, and thereby secured the appointment of the respondent Duckett. The total amount estimated by Epps as his actual hurt by reason of this alleged conspiracy dire is the modest sum of five thousand dollars, to which he avers should be added a penalty in twice that sum. Moved perhaps by that Persian proverb preserved from oblivion by the poet Saadi, that "one is oftenest best served where least known," Epps removed his cause by change of venue from his home circuit court to that of Texas County, where it was tried in November, 1916, resulting in a verdict and judgment for respondents, from which this appeal is perfected.

A statement of the facts clothed in phraseology befitting the importance of the theme, as Balzac said in one of his Contes, runs thus:

In 1914 appellant Epps and respondent Duckett were applicants, among others, for appointment to the position of postmaster at Pomona. The Postoffice Department subjected the applicants to a civil service examination, the pertinence of which in the determination of their fitness for the duties of a fourth-class postmaster, measured by the inquiries made, may well be the subject of intelligent difference of opinion, but not here. The result of the inquiry showed that the appellant and respondent were among the eligibles according to the arbitrary standard fixed by the Department, the former ranking higher in figures than the latter. In addition other tests were applied, deemed essential to test the fitness of one charged with the sale of stamps and the receipt and distribution of such mail as is wont to find its way to a fourth-class office.

We are not lacking in information on this subject emanating immediately from the then superintendent of the division of post-masters' appointments, who testified at the trial. After volubly descanting generally upon the qualifications necessary to an efficient discharge of the duties of a postmaster in an office of this class, the witness, as definitive of the manner in which the wheat is winnowed from the chaff, or, to mix the figure, how the true prince of efficiency may be separated from the other applicants, said:

"Our first consideration was the service and serving of patrons. We first considered Number One and all things being equal, if there was nothing to create suspicion that he would not render as satisfactory and faithful service as the others, he was selected; but if there was, we sought light from any source, it made no difference from whence it came. It frequently happened that the Congressman in the district gave us a great deal of advice. We took that for what it was worth only. When an old postmaster was an applicant we frequently went into the character of his service. We even went to the auditor to ascertain whether his services had been satisfactory. If it was a case of an old postmaster and other applicants, the record of the former would have a considerable bearing as to whether or not he would be considered as against the other eligibles on the list.

"If the Congressman preferred a particular individual, we would look over the whole case and take No. One on the list; and if the character of the town and the business indicated that a man would be better suited than a woman we would take No. One on the male list. If we preferred a man as postmaster we usually asked for male lists. We considered that out right under the civil service rules. Where there was no business of any considerable size, we preferred a man. We sought light from any source whatever, the candidate's knowledge of business, his age and general fitness, mental and otherwise we chose the...