Everhart v. Bryson

• Decision Date: 10 June 1912
• Citation: 149 S.W. 307
• Parties: EVERHART v. BRYSON.
• Court: Missouri Supreme Court

149 S.W. 307

EVERHART v. BRYSON.

Supreme Court of Missouri.

June 10, 1912.

Rehearing Denied July 2, 1912.

1. TRIAL (§ 424#)—WAIVER OF OBJECTION— PEREMPTORY INSTRUCTION.

The rule that objection to the refusal of a peremptory instruction is not waived by securing further instructions to meet those given applies only where the peremptory instruction is requested by the defendant, and not where requested by plaintiff; and where the plaintiff, in a slander case, after offering a peremptory instruction which was refused, secured an instruction inconsistent with the peremptory instruction, he waived his objection to the refusal.

2. APPEAL AND ERROR (§ 882)—INVITED ERROR—INSTRUCTIONS.

A party cannot complain of the giving of an erroneous instruction which he has requested.

3. LIBEL AND SLANDER (§ 105)—CONSTRUCTION OF LANGUAGE USED.

In a slander case, the court properly excluded a witness' testimony as to what he understood defendant to mean by the statement that plaintiff and a negro ran off together once on money obtained by a forged check; the only ambiguity being in the application of defendant's words and not in the words themselves.

4. APPEAL AND ERROR (§ 882)—INVITED ERROR—INSTRUCTIONS.

Where the plaintiff in a slander case requested and secured an erroneous instruction, he could not object to the giving of its converse for the defendant.

Kennish and Woodson, JJ., dissenting.

In Banc. Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge. Action by Ownby Everhart against Henry Bryson. From judgment for defendant, plaintiff appeals. Affirmed.

Action for slander upon the following petition: "Plaintiff for his cause of action states `that the defendant, on or about the 26th day of March, 1907, at the city of Centralia, in the state of Missouri, willfully, wantonly, and maliciously spoke of and concerning the plaintiff certain false, defamatory, and slanderous words, to wit: `Everhart (meaning the plaintiff) and a negro, Snell (meaning one James Snell), a negro man, ran off together once on money obtained by a forged check.' And said words were spoken in the hearing and presence of third parties; and by said words the said defendant did charge and intend to charge that the said Ownby Everhart had made and uttered a forged check upon some duly incorporated bank, and had obtained money upon said forged check, and the said words were so understood by the persons who heard them. Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of $10,000, $5,000 of which he says is actual damage, and $5,000 as punitive damages, for which sum of $10,000 he prays judgment, and costs."

The answer is a general denial, and then this in mitigation: "Defendant, further answering, says that whatever words he may have spoken of and concerning the plaintiff were spoken without any ill will or malice toward him, and were not spoken with the intent to injure him, but, at the time they were spoken, the said defendant did not speak of and concerning the plaintiff as to his own knowledge, and so stated at the time, but defendant did say of and concerning the plaintiff that he (the defendant) had understood that the plaintiff had forged his (plaintiff's) father's name to a cheek, and in that way got some money by which he and the negro man, James Snell, had gone off together, but this defendant in relating said circumstance, in speaking of and concerning the plaintiff and his connection with the said check and the said James Snell, the negro man, stated what was current rumor in the vicinity in which plaintiff and defendant lived, and defendant stated at the time of using said words that the information had come to him from others, and did not undertake to state the same to be a fact, and it was understood by the persons who heard the said speaking that said defendant made said statement not upon' his own knowledge, but upon the information of others. Defendant further denies that the language used by him of and concerning the plaintiff is slanderous, or that it amounted to the imputation of a crime by said defendant against plaintiff."

The case was tried before a jury, the verdict being for the defendant. Plaintiff appeals. There was evidence tending to sustain the allegations of both the petition and answer.

The plaintiff complains: (1) Of the refusal of his peremptory instruction to find in his favor; (2) of adverse ruling on evidence offered to show the sense in which hearers understood the language used; (3) of instruction No. 3 given for defendant. The other points are unworthy of consideration. Further facts necessary to an understanding of the opinion will be found therein.

Barclay, Fountleroy & Cullen and E. A. Shannon, for appellant. Robertson & Robertson, for respondent.

FERRISS, J. (after stating the facts as above).

I. At the close of the evidence plaintiff asked, and the court gave, among others, instructions Nos. 1 and 2, as follows:

"(1) If you believe from the evidence that the defendant spoke of and concerning the plaintiff, in the presence and hearing of J. Kelly Pool, the words mentioned in the petition, to wit, `Everhart and a negro, Snell, ran off together once on money obtained by a forged check,' and if you further believe that by said words the defendant did charge and intend to charge that said Ownby Everhart had made and uttered a forged check, and had obtained money upon such forged check, and the said words were so understood by the persons who heard them, then you are instructed that it is your duty to return a verdict for the plaintiff.

"(2) The court instructs the jury that in this case there is no justification pleaded, and the defendant does not allege that the words he spoke of and concerning plaintiff were true, and if you find and believe the defendant spoke of and concerning plaintiff the words set forth in plaintiff's instructions numbers 1 and 2, and thereby charged and intended to charge that Ownby Everhart had made and uttered a forged check, and the words were so understood by the person who heard them, then the verdict must be for the plaintiff."

Plaintiff also requested the court to give this instruction: "The court instructs the jury that under the law and the evidence in this case you should return a verdict for the plaintiff, and the only matter for your consideration is the amount of damages." This instruction was refused, and plaintiff excepted.

The way to the consideration of plaintiff's objection to the court's ruling on this instruction is blocked by an important question of appellate procedure, namely: Can plaintiff object on appeal to the refusal of this instruction, in view of the fact that the above instructions, 1 and 2, were given at his request? The case was pleaded, tried, and instructed on both sides upon the theory indicated in the above given instructions. The peremptory instruction refused was inconsistent with Nos. 1 and 2, given for plaintiff. Defendant contends that plaintiff waived his objection to the refusal of his peremptory instruction by asking and receiving the instructions which submitted the question of slander or no slander to the jury, and calls attention to the abstract, which fails to show that the peremptory instruction was asked first, but, on the contrary, would seem to indicate that it was an afterthought. We do not regard the order in which instructions are offered as important, and will assume that the peremptory instruction was first offered and refused. Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo., loc. cit. 313, 103 S. W. 957.

It is undoubtedly established law that an appellant cannot complain of an error which he invited. It is also true that, if it was error to refuse the peremptory instruction, it was error to give the inconsistent one submitting the question to the jury; but the latter having been given at appellant's request, he invited the error, if error was committed. It is settled by numerous decisions of this court that a defendant does not waive his objection to the refusal of the court to give his peremptory instruction in the nature of a demurrer to the evidence by asking further instructions to meet those given on behalf of the plaintiff. Should the same rule apply to the plaintiff regarding his peremptory instruction? It may be remarked in passing that this privilege extended to the defendant is not recognized in all jurisdictions. It is in the nature of an exception to the general doctrine of waiver and estoppel. Its recognition in this state is put upon the ground that the defendant does not come into court voluntarily, and cannot retreat therefrom. He is therefore allowed to shift his ground, if need be, to meet the attack of his adversary, which attack he can in no way control. On the other hand, the plaintiff is the moving party. He selects his method of attack. If one theory put forward by him, by his instructions, is denied by the court, he may retreat from the contest with his rights in full force for a new attempt. Not so the defendant. If, tinder these conditions, the plaintiff (his first theory being denied by the court) sees fit to persist and try the case on a different theory, approved by the court, he must be held to have waived his objection to the ruling of the court on his first proposition. That such distinction between the plaintiff and defendant exists is clearly indicated in Cochran v. People's Ry. Co., 113 Mo., loc. cit. 366, 21 S. W. 8, where Gantt, J., says: "It must be remembered that a defendant occupies a different attitude from his adversary, the plaintiff. The plaintiff brings the action. If the ruling is adverse, he may take a nonsuit. Not so with the defendant. He is in court without his consent. The court may make any number of rulings that he may deem erroneous, but he cannot abandon the ease; he is in court, and must remain until the cause is finished. He has a right to tender as many defenses as he has. If the court...