Frazier v. Grob

• Citation: 183 S.W. 1083,194 Mo.App. 405
• Parties: JENNIE FRAZIER, Respondent, v. KATIE E. GROB, Appellant
• Decision Date: 07 March 1916
• Court: Court of Appeal of Missouri (US)

183 S.W. 1083

194 Mo.App. 405

JENNIE FRAZIER, Respondent, v. KATIE E. GROB, Appellant

Court of Appeals of Missouri, St. Louis

March 7, 1916

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Geo. W Lubke and Geo. W. Lubke, Jr. for appellant.

(1) The petition contains neither colloquium nor innuendo by which the language charged to be slanderous is explained and shown to charge the plaintiff with the commission of a crime. The petition is therefore insufficient to sustain the verdict and judgment. The language charged to have been used by the defendant in its ordinary sense and without explanation did not charge the plaintiff with the commission of any crime. Christal v. Craig, 80 Mo. 367, 372; Krup v Corley, 95 Mo.App. 640, 650; Boyce v. Aubuchon, 43 Mo.App. 315, 323; Cook v. Pulitzer Publishing Co., 241 Mo. 326. In slander the words charged to have been spoken should be understood and construed in their most innocent sense unless there are averments in the petition giving them other and sinister meaning. Kunz v. Hartwig, 151 Mo.App. 94, 103. (2) Defendant's peremptory instruction, asked at the close of all the evidence, should have been given, because there was a total failure of proof of publication of the alleged slander. Without proof of publication no recovery can be had. Traylor v. White, 185 Mo.App. 325; Sullivan v. Sullivan, 54 Ill.App. 435; Sheffil v. Van Deusen, 13 Gray (Mass) 304. (3) The first instruction given for the plaintiff is erroneous, because it ignores the question of publication and authorizes a finding for the plaintiff in the event the jury find the words charged spoken in the hearing of other persons, irrespective of whether such other persons heard and apprehended them. This instruction also attempted to cover the whole of the plaintiff's case and being erroneous, the judgment must on that account be reversed. Traylor v. White, 185 Mo.App. 325, 331; Wilks v. Railroad, 159 Mo.App. 711; Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260; Ghio v. Schaper Bros. Merc. Co., 180 Mo.App. 286. (4) The failure of the court to rule on the defendant's motion to strike out the portion of the plaintiff's testimony complained of was also error. The testimony was clearly not responsive to the question and indicated a desire on the part of the plaintiff to make sympathy for herself with the jury, and not only should the testimony have been stricken out, but the plaintiff should have been cautioned regarding the matter by the court. The failure of the court to rule no objections to evidence is reversible error. Stone v. Fry, 178 S.W. 289, 290; Asbury v. Nicklin, 181 Mo. 658; Seafield v. Bohne, 169 Mo. 537. (5) The court also erred in permitting the witness, Mrs. Esther Young, to testify, over the objections of defendant, as to bad language used by the defendant toward her daughter, at a time when the plaintiff was not present. This was not a rebuttal of any of the testimony of the defendant and its purpose was only to inflame the jury aaginst the defendant. Kennedy v. Holladay, 25 Mo.App. 503, 513. (6) The verdict was clearly the result of passion and prejudice on the part of the jury against the defendant and should therefore be set aside by this court. Tucker v. Railroad, 66 Mo.App. 141; Ettlinger v. Kahn, 134 Mo. 492; Empey v. Grand Avenue Cable Co., 45 Mo.App. 422.

Rodgers & Koerner for respondent.

(1) Neither colloquium nor innuendo is required when the words spoken are slanderous per se and their defamatory meaning is apparent. Callaghan v. Ingram, 122 Mo. 355, 366; Sotham v. Telegram Co., 239 Mo. 606, 620; Crandall v. Greaves, 181 Mo.App. 235, 238. The words here charged per se impute a felony. Laws of Missouri of 1911, page 198. They also charge unchastity of the lowest kind. (2) The court will take judicial notice of the meaning of words that have a well understood meaning, even though the modesty of lexicographers prevents their defining them in the dictionaries. Edgar v. McCutchen, 9 Mo. 768. (3) There was ample proof of publication. The testimony that the words were spoken in the presence of third parties near enough to hear, is sufficient proof of publication to require that issue to be submitted to the jury. Cameron v. Cameron, 162 Mo.App. 110, 114; Miller v. Johnson, 79 Ill. 58, 60; Hammond v. Stewart, 72 Ill.App. 512, 513. Where the words are spoken in the language of the locality, it is presumed that they are understood. Newell on Slander and Libel (3 Ed.), p. 922, sec. 920. Where the words can mean but one thing it is unnecessary to show that the persons hearing them understand them. Crandall v. Greaves, 181 Mo.App. 235, 238; Vanloon v. Vanloon, 159 Mo.App. 255, 267; Hammond v. Stewart, 72 Ill.App. 512, 513. In fact it would have been error to show that the persons hearing these words did or did not understand their meaning. Newell on Slander and Libel (3 Ed.), p. 381, sec. 372; Branch v. Publishers, Etc., 222 Mo. 580, 594 et seq.; Callaghan v. Ingram, 122 Mo. 355, 375; Snell v. Snow, 13 Met. (Mass.) 278. Where the meaning of the words is plain it is a question of law for the court whether they are slanderous. 25 Cyc. p. 542. And where their meaning is ambiguous it is for the jury to determine what is meant. Callaghan v. Ingram, 122 Mo. 355, 375. (4) Plaintiff's first instruction does not ignore the question of publication. It expressly requires the jury to find that defendant used the language charged in the presence and hearing of other persons and it is presumed to have been understood. Crandall v. Greaves, 181 Mo.App. 235, 238; Newell on Slander and Libel, p. 922, sec. 920. (5) The failure to rule on defendant's motion to strike out was not error (a) because it is impossible to tell from the motion what defendant wanted stricken out; (b) because there was no evidence of any weight or consequence to which defendant's motion could be held to be addressed. (6) No error was committed in permitting Mrs. Young to testify in rebuttal, (a) because such testimony was not objected to by defendant; (b) because such testimony properly rebutted the testimony given by defendant testifying in her own behalf. (7) The verdict is not excessive. Williamson v. Eckoff, 185 Mo.App. 234; Cook v. Globe Printing Co., 227 Mo. 471.

OPINION ON REHEARING.

PER CURIAM.

--Action for damages for slander. The count of the petition upon which this case went to the jury charges that the defendant, on October 23, 1912, at the city of St. Louis, "wrongfully, wilfully and maliciously spoke and uttered of and concerning plaintiff, in the presence and hearing of divers persons, false and defamatory words as follows, to-wit: "You (meaning plaintiff) are a cock-sucker." Charging that defendant's wrongful conduct greatly humiliated plaintiff and caused her shame and mortification and so shocked and affected her nervous system as to render her weak, faint, nervous and sick and that as a direct result she has suffered and will suffer in reputation and mind, plaintiff prays judgment for $ 5000 actual and $ 5000 punitive damages. The demand for actual damages was afterwards, by amendment, placed at $ 2500.

Interposing a general demurrer and that being overruled, defendant filed a general denial.

The trial resulted in a verdict in favor of plaintiff for $ 1000 actual and $ 1500 punitive damages. Judgment following, defendant filing her motion for a new trial and in arrest and excepting to the action of the court in overruling these, has duly appealed to our court.

Learned counsel for appellant assign six grounds for a reversal.

First, it is argued that as the petition contains neither colloquium nor innuendo, by which the language charged to be slanderous is explained and shown to charge plaintiff with the commission of a crime, the petition will sustain neither the verdict nor judgment; that the language charged to have been used by the defendant, in its ordinary sense and without explanation, did not charge the plaintiff with the commission of any crime; that in slander the words charged to have been spoken should have been understood and construed in their most innocent sense unless there are averments in the petition giving them other and sinister meaning.

It is to this claimed defect in the petition that the demurrer and motion in arrest were directed.

By Act approved March 30, 1911 (Laws 1911, page 198), section 4726, Revised Statutes 1909, which before then defined and punished "the crime against nature," was repealed and a new section enacted in lieu thereof which reads: "Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years." The words italicized were interpolated by the amendment, the punishment was changed from imprisonment for the term of ten years to imprisonment for two years, still classifying the offense as a felony.

As originally interpreted by the courts, "the crime against nature" was held to embrace sodomy. Then it was extended by construction to embrace bestiality, and later the statute merely denouncing the commission of "the crime against nature," it was also extended by some courts to include what was designated as "fellation." [See Black's Law Dictionary (2 Ed.), p. 1094, title "Sodomy."] The crime against nature "was deemed of a nature so heinous that the delicacy of the common law would not permit it to be named in the indictment." [See Newell on Slander & Libel (3 Ed.), p. 174, secs 154-155.] For illustrations of the peculiar offenses covered, see Wharton Criminal Law (11 Ed.), p. 967 et seq.; Honselman v. The People, ...