Fisher v. Myers

• Decision Date: 14 December 1936
• Docket Number: No. 32601.,32601.
• Parties: JOSEPHINE S. FISHER v. JOSEPHINE MYERS ET AL., Appellants.
• Court: Missouri Supreme Court

100 S.W.2d 551

JOSEPHINE S. FISHER v. JOSEPHINE MYERS ET AL., Appellants.

No. 32601.

Supreme Court of Missouri.

Division one, December 14, 1936.

Appeal from Jackson Circuit Court. — Hon. C. Jasper Bell, Judge.

AFFIRMED AS TO DEFENDANTS JOSEPHINE MYERS, OKIE MYERS, JOHN P. AUSTIN, W.W. GROW, C.L. STANGE AND JOHN W. TRUESDALE, AND REVERSED AS TO DEFENDANT JOHN H. McGUIRE.

Clif Langsdale for appellants.

(1) The publication of the complained of pamphlet was qualifiedly privileged. There being no evidence of actual or express malice against any of the defendants the court should have instructed the jury to find verdicts for the defendants. Kersting v. White, 80 S.W. 730; Lee v. Fuetterer, 23 S.W. (2d) 45; Holmes v. Royal Fraternal Union, 222 Mo. 556; McClung v. Pulitzer Publ. Co., 214 S.W. 193. (2) The court committed error in giving plaintiff's Instruction 1, conceding privilege on behalf of the defendant Ambruster and denying that theory to the other defendants similarly situated. (3) The court committed error in giving plaintiff's Instruction 7 defining "malice." State v. Cox, 228 S.W. 837. Authorities cited under (1). (4) The court committed error in giving plaintiff's Instruction 8. (a) Said instruction permitted the jury to find the defendants guilty of the alleged conspiracy without the existence of an agreement or understanding, which is an essential element of conspiracy. Ross v. Mineral Land Co., 162 Mo. 317; Dietrich v. Cape Brewery & Ice Co., 286 S.W. 38. (b) Said instruction was a comment upon the value of circumstantial evidence and contained the unwarranted statement "that evidence in proof of conspiracy will generally be circumstantial." Scanlon v. Kansas City, 28 S.W. (2d) 84; Keppler v. Wells, 238 S.W. 425; Shartzer v. Ry. Co., 250 S.W. 950. (5) The verdict was the result of bias and prejudice. (6) A verdict should have been directed for the defendant John H. McGuire. There was no evidence that he entered into any conspiracy with the other defendants or that he knew anything about the publication of the complained of pamphlet until he was summoned to appear as a defendant in this suit. (7) A verdict should have been directed for the defendant John W. Truesdale. There was no evidence that he entered into any conspiracy with the other defendants or that he knew anything about the publication of the complained of pamphlet until he was summoned to appear as a defendant in this suit.

Burns & White for respondent.

(1) The defendants admit malice and conspiracy as a matter of law. James v. Bailey-Reynolds Chandelier Co., 30 S.W. (2d) 118, 325 Mo. 1054; Sec. 808, R.S. 1929; Atteberry v. Powell, 29 Mo. 429. (2) The verdict was not for the wrong party. (3) The court did not commit error in giving plaintiff's Instruction 7 defining malice. Fraser Libel & Slander (4 Ed.), p. 174; Peak v. Taubman, 158 S.W. 656; Minter v. Bradstreet Co., 174 Mo. 444, 73 S.W. 668. (4) The court did not commit error in giving plaintiff's Instruction 8. Burton v. Maupin, 281 S.W. 90; Mosby v. Comm. Co., 91 Mo. App. 500; Allen v. Forsythe, 142 S.W. 823, 160 Mo. App. 262; Dietrich v. Cape Brewery & Ice Co., 286 S.W. 38; United States v. Kissel, 31 Sup. Ct. 124, 218 U.S. 601; Musser v. State, 61 N.E. 1, 157 Ind. 423; State v. Manning, 128 N.W. 345, 149 Iowa, 205. (5) The publication complained of in plaintiff's petition was not qualifiedly privileged and none of the appealing defendants were entitled to the benefit of privilege. Meriwether v. Knapp & Co., 109 S.W. 750, 211 Mo. 199; Sullivan v. Strahorn-Hutton-Evans Comm. Co., 53 S.W. 912, 152 Mo. 268; Julian v. K.C. Star Co., 107 S.W. 496, 209 Mo. 35; Wagner v. Scott, 63 S.W. 1107, 164 Mo. 289; Cornelius v. Cornelius, 135 S.W. 65, 233 Mo. 1; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100; Minter v. Bradstreet Co., 73 S.W. 679, 174 Mo. 444. (6) The verdict was not the result of bias and prejudice. (7) The verdict should not be reversed as to defendant John H. McGuire. (8) The verdict should not be reversed as to defendant Truesdale.

FERGUSON, C.

This action for libel was commenced and tried in the Circuit Court of Jackson County, at Independence. Josephine Myers, Okie Myers, John W. Truesdale, John P Austin, W.W. Grow, C.L. Stange, John H. McGuire and Edith E. Ambruster, were made defendants. The verdict of the jury was against all the defendants for $50,000 actual and $75,000 punitive damages. The defendants filed separate motions for a new trial; the motion of defendant Ambruster was sustained and the other motions overruled. Whereupon the plaintiff dismissed as to defendant Ambruster and from the judgment entered against them in the aggregate amount of $125,000, in accordance with the verdict, the other defendants have appealed.

Eleven days were consumed in the trial of this case; the record is voluminous and it is with misgiving the writer undertakes to state even in general outline the facts developed by the testimony of the large number of witnesses. However appellant's assignments of error on this appeal necessitate such a statement. The plaintiff, Mrs. Josephine S. Fisher was fifty-six years of age at the time she commenced this action. Plaintiff and R.E. Fisher were married at Kansas City, Missouri, in October, 1903, and since have continuously resided together in that city as husband and wife. In 1905 the Fishers purchased "a little cottage on Montgall" in Kansas City where they made their home until 1910 when they purchased a residence on East Fifty-ninth Street where they have since resided. No children were born of the marriage. About March, 1907, Mrs. Fisher organized classes in vocal music at Sweet Springs, in Saline County, and Aullville, Lafayette County, Missouri. The members of the vocal classes were of both sexes and of various ages, "both men and women, young folks, girls and boys." The class at Sweet Springs had "somewhere between 15 and 20" members; that at Aullville eight or ten. Mrs. Fisher met the Sweet Springs class at the home of Mrs. Willis Smith and the Aullville class at the home of Mode Anson. Each week she would leave Kansas City on Thursday via of the "Lexington Branch" of the Missouri Pacific Railroad and "if the train was on time I would stop at Aullville and give my class at Aullville Thursday night and go up to Sweet Springs the next morning, Friday" (on the Lexington Branch). She would "teach at Sweet Springs all day and Friday evening" and return to Kansas City on the "Saturday morning" train. However, if the train was late on Thursday (as her testimony indicates was a frequent occurrence) she would not stop at Aullville for the Thursday night classes but continue to Sweet Springs meet her class there on Friday and Friday evening and "come back to Aullville on the Saturday morning train and give my classes there" on Saturday. She accepted frequent invitations to remain over and sing on Sunday in the churches at Sweet Springs. When returning to Kansas City on the afternoon or evening train of the Lexington Branch she would, when she leared from the trainmen that a train with which the Lexington Branch made connection at Myrick was late, get off the Lexington Branch train at Higginsville and take a Chicago & Alton train to Kansas City and she frequently made this change at Higginsville. If, on such occasions, she had time she ate dinner at the Arcade Hotel, at Higginsville, which was across the street from the Chicago & Alton depot. It was her custom at such times to wait in the lobby of the Arcade Hotel for the Chicago & Alton train. Mrs. Fisher continued to teach these classes throughout 1907 and in 1908. Both Mr. and Mrs. Fisher testify positively that she made her last trip and met the Sweet Springs and Aullville classes the last time in August, 1908; that on that trip she gave up the classes; that she left Kansas City on Thursday, August 27; that the following day was her thirty-fifth birthday and Mr. Fisher went to the depot with her and as she was getting on the train gave her a "leather dressing case" with her "name on it" and the year 1908 "in gold letters" as a birthday gift; that she decided to quit her classes at Sweet Springs and Aullville because the railroad fare had been greatly increased and she had failed to get a class at Slater, Missouri, which would have made it profitable for her to continue her classes at Sweet Springs and Aullville in conjunction with the proposed Slater class; that it was understood when she left Kansas City on Thursday, August 27, that Mr. Fisher would meet her at Higginsville on Sunday morning August 30 (1908); that Mr. Fisher, who was at that time secretary of the Brotherhood of Railway Mail Clerks left Kansas City for St. Louis Thursday night, in connection with business of the organization; that Mrs. Fisher having completed her work at Sweet Springs and Aullville came to Higginsville "on the evening train" Saturday (August 29), registered at the Arcade Hotel and spent the night there; that Mr. Fisher took a Chicago & Alton train out of St. Louis Saturday night and arrived in Higginsville at "six or seven o'clock" Sunday morning, August 30 (1908); and that he went to his wife's room, awakened her and ate breakfast at the hotel and took the next train for Kansas City. Mrs. Fisher says she never thereafter returned to Sweet Springs or Aullville with the exception that "sometime in November, 1908," Mr. Fisher's father, who resided on a farm "about 4½ miles" from Sweet Springs, being ill she went there with Mr. Fisher to visit his father. Mr. Fisher stated that he was never in Higginsville after August 30, 1908, when he met his wife there as he returned from St. Louis. Mrs. Fisher testified that the only time she ever occupied a room or spent a night at the Arcade Hotel in Higginsville was the night of August 29, 1908, under the circumstances above stated, and that she was never in Higginsville after that time.

Mrs. Fisher had become a member of one of the Kansas City...