Fritschle v. Kettle River Co.

• Decision Date: 07 May 1940
• Docket Number: No. 36565.,36565.
• Citation: 139 S.W.2d 948
• Parties: JACOB C. FRITSCHLE, Appellant, v. KETTLE RIVER COMPANY, a Corporation, and JALMER E. PETERSON.
• Court: Missouri Supreme Court

139 S.W.2d 948

JACOB C. FRITSCHLE, Appellant, v. KETTLE RIVER COMPANY, a Corporation, and JALMER E. PETERSON.

No. 36565.

Supreme Court of Missouri.

Division One, May 7, 1940.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank C. O'Malley, Judge.

AFFIRMED.

Richard F. Ralph and Cullen, Storckman & Coil for appellant.

The second amended petition of plaintiff states a cause of action against defendants. Stewart Land Co. v. Perkins, 234 S.W. 653, 290 Mo. 194; Holt v. Williams, 210 Mo. App. 470, 240 S.W. 864; Barry v. Legler, 39 Fed. (2d) 297; Howland v. Corn, 232 Fed. 35; Medich v. Stippec, 73 S.W. (2d) 998, 335 Mo. 796; Becker v. Thompson, 76 S.W. (2d) 257, 336 Mo. 27; Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997.

Bryan, Williams, Cave & McPheeters for respondents.

(1) Plaintiff's second amended petition does not state a cause of action on the theory of injury to plaintiff's business. Remmers v. Remmers, 217 Mo. 541, 117 S.W. 1117; Sullivan v. Strathan-Hutton-Evans Comm. Co., 152 Mo. 268, 53 S.W. 912; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997; State ex rel. Barker v. Assur. Co. of Amer., 251 Mo. 278, 158 S.W. 640; Becker v. Thompson, 76 S.W. (2d) 357. (2) The existence of actual malice does not render the telling of the truth tortious. 62 C.J. 1105; Glencoe Lime & Gravel Co. v. Hudson Brothers Comm. Co., 138 Mo. 439; Stroup v. Rauschelbach, 217 Mo. App. 236, 261 S.W. 346; Loewenberg v. De Voigne, 145 Mo. App. 710, 123 S.W. 99. (3) No cause of action for libel or slander is stated by plaintiff's second amended petition. 37 C.J. 26, 27; 17 R.C.L. 390; Watson v. Musick, 22 Mo. 29; Holmes v. Webster, 62 N.J. Law 55, 40 Atl. 778; Kirby v. Martindale, 19 S.D. 394, 103 N.W. 648; American Book Co. v. Kingdom Pub. Co., 71 Minn. 363, 73 N.W. 1089; Gendron v. St. Pierre, 56 Atl. 915, 72 N.H. 400; 37 C.J., p. 33.

HYDE, C.

This is an action for $25,000 actual damages and $25,000 punitive damages for libel or slander. The trial court sustained defendants' separate demurrers on the ground that plaintiff's petition "does not state facts sufficient to constitute a cause of action." Plaintiff has appealed from the judgment of dismissal entered.

The material parts of plaintiff's petition are, as follows:

"Plaintiff further states that prior to October 1, 1934, he had had business dealings from time to time with the defendants and with the Kettle River Treating Company, of which company defendant Peterson was an officer, and the business of which the defendant Kettle River Company succeeded.

"Plaintiff further states that a controversy arose between defendants and plaintiff, the subject of which was the claim of defendants that plaintiff owed defendants the sum of three hundred dollars ($300.00), and which sum plaintiff claimed he did not owe to defendants, or either of them.

"Plaintiff further states that in 1934, and for many years before, he had been a depositor with and a customer of the Mercantile-Commerce Bank & Trust Company, a banking institute in the City of St. Louis; that in the conduct of plaintiff's business it has been, and will be in the future, necessary for him to borrow large sums of money from time to time and for many years prior to October, 1934, he had negotiated loans with the Mercantile-Commerce Bank & Trust Company, and that said company was his sole banking and financial connection; that such loans had been paid agreeably to the parties thereto and the business relationship existing between the said Trust Company and plaintiff at all times had been cordial and satisfactory.

"Plaintiff further states that during the pendency of the controversy aforesaid between plaintiff and the defendants, the defendant Peterson, as the officer, manager, agent, servant and employee of the defendant Kettle River Company, in the due course and scope of his employment by the defendant Kettle River Company, did repeatedly and maliciously in writing threaten plaintiff that unless plaintiff paid defendant Kettle River Company the sum of three hundred dollars ($300.00) that defendants would report to the plaintiff's bank that plaintiff owed defendant Kettle River Company the sum of three hundred dollars ($300.00) and that plaintiff refused to pay defendants said sum.

"Plaintiff further states that defendants did, on or about Nov. 1, 1934, maliciously and without just cause or excuse, and with the sole and malicious intent and purpose of destroying plaintiff's credit with said Trust Company and the good opinion in which plaintiff was held by said Company and to interfere with, injure and destroy the lawful business in which plaintiff was then engaged, advise the Mercantile-Commerce Bank & Trust Company that plaintiff owed defendant Kettle River Company the sum of three hundred dollars ($300.00) and that plaintiff refused to pay said sum to defendants.

"Plaintiff further states that by reason of the act of defendants done as aforesaid, and as a direct result thereof, plaintiff's lawful business was interfered with and was injured; that plaintiff's credit with said Trust Company and plaintiff's good standing with said Trust Company was destroyed; that plaintiff had been caused to suffer great anguish of mind and has suffered and will continue to suffer irreparable financial losses."

[1] Plaintiff says that defendants' "interference with, injury to, and destruction of the lawful business of plaintiff" with malicious intent and purpose, was the gravamen of the action, citing conspiracy cases such as Stewart Land Co. v. Perkins, 290 Mo. 194, 234 S.W. 653. Plaintiff further says that, in such cases, "the gravamen of the complaint is not the unlawful combining, but, rather, the damage done as the result of the wrongful and malicious act of interfering with and destroying the lawful business of another person." However, the interference here charged was alleged to be due to a single statement made concerning plaintiff, so this petition must be considered as based on libel or slander. In no case cited by plaintiff was...