Garey v. Jackson

• Decision Date: 03 April 1917
• Citation: 193 S.W. 920,197 Mo.App. 217
• Parties: C. E. GAREY, Respondent, v. C. M. JACKSON, Appellant
• Court: Missouri Court of Appeals

193 S.W. 920

197 Mo.App. 217

C. E. GAREY, Respondent, v. C. M. JACKSON, Appellant

Court of Appeals of Missouri, St. Louis

April 3, 1917

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

REVERSED.

Judgment reversed.

E. W Hinton and McBaine & Clark for appellant.

(1) The court should have sustained the defendant's objection to the introduction of any evidence under the petition because it failed to state facts sufficient to constitute a cause of action, in this: (a) The bare words set out in the petition viz., "That about two years ago, etc., Mr. Garey resigned his position and opened up a rival store, taking with him a quantity of second hand books," without other facts by way of inducement or colloquium do not support the innuendo of larceny or any other indictable offense. Bundy v. Hart, 46 Mo. 460; Christal v Craig, 80 Mo. 347; Powell v. Crawford, 107 Mo. 595; Flowers v. Smith, 214 Mo. 134; Diener v. Star Pub. Co., 230 Mo. 613; Diener v. Pub. Co., 232 Mo. 416; Cook v. Pub. Co., 241 Mo. 326-343; Furlong v. German American Press Ass'n (Mo. Sup. Ct.), 189 S.W. 385; Brettun v. Anthony, 103 Mass. 37; Adams v. Stone, 131 Mass. 433. (b) The balance of the words alleged in the complaint imputing to Garey an intention of carrying on commercial war with the co-operative store and driving it out of business, and charging that he was an unscrupulous enemy of the co-operative store, do not support the innuendo that plaintiff was unscrupulous in his trade or business. Cole v. Neustadter, 22 Oregon 191, 29 P. 550; Legg v. Dunleavy, 80 Mo. 558; Van Tassel v. Capron, 1 Denio (N. Y.) 250; Achorn v. Piper, 66 Ia. 694, 24 N.W. 516; Lumby v. Allday, 1 C. & J. (Eng.) 301; Miller v. David, L. R. A. 9 C. P. 118; Willis v. Mfg. Co., 81 A.D. 591, 81 N.Y.S. 359; Walsh v. Pulitzer, 250 Mo. 142; Bank v. Goodwin, 167 Mo.App. 211, l. c. 216. (2) There was a total failure to prove any state of facts or circumstances to enlarge the meaning of the language used, and hence the court should have sustained defendant's demurrers to the evidence, because in that event the construction of the words was exclusively for the court, the same as on demurrer. Rex v. Burdett, 4 B. & Ald., 95-131; Bank v. Henty, L. R. 7 App. Cases, 741; Com. v. Anthes, 5 Gray 185; Diener v. Publishing Co., 230 Mo. 613; Cook v. Publishing Co., 241 Mo. 326. (3) It was error to admit evidence that certain persons in the audience understood the words to impute larceny, because the words were not ambiguous and did not naturally or fairly impute an offence, and the defendant is not responsible for a forced and unnatural meaning which a particular individual might give to the words, but only for the fair and natural meaning, which is to be determined by the court. Branch v. Knapp, 222 Mo. 580; Diener v. Pub. Co., 230 Mo. loc. 628; Everhart v. Bryson, 244 Mo. 507, 519. (4) The first instruction for the plaintiff was erroneous in leaving the jury to find an imputation of larceny in any of the words set out in the petition; when the greater part of the words could not by any possibility even refer to the book transaction on which the supposed charge of larceny is based. Coal Co. v. Davis, 138 Ky. 667; Atterberry v. Pound, 29 Mo. 429; Ogle v. Sidwell, 167 Mo.App. 292; Parsons v. Henry, 177 Mo.App. 329. (5) The fourth instruction for the plaintiff was erroneous in telling the jury that it was actionable to charge a man with being unscrupulous in his trade or business, and leaving them to find such an imputation in any of the words proved. (a) Because it was broader than the innuendo. (b) Because there was a failure to prove the only inducement alleged, viz. that the plaintiff was the owner and proprietor of the Missouri store, since it was admitted that this concern was a corporation, and that the plaintiff was only one of the stockholders. It is elementary that the inducement, being material, must be proved as laid. Harris v. Burley, 8 N.H. 217. (c) Because the jury were thus given a roving commission to find this imputation in any of the words proved, whether they could reasonably bear such a construction or not. Coal Co. v. Davis, 138 Ky. 667, and authorities under Point IV. (6) The court erred in not holding as a matter of law that the occasion was one of qualified privilege, and in overruling defendant's demurrer to the evidence for failure to prove any actual malice so as to destroy such privilege. Finley v. Steele, 159 Mo. 299; Holmes v. Fraternal Ass'n. 222 Mo. 556. (7) The court erred in refusing the defendant's fifth instruction, and in so modifying it as to eliminate the defense of privilege and submit the question to the jury as to how the hearers understood the words. Joannes v. Bennett, 5 Allen, 169; Finley v. Steele, 159 Mo. 299; Holmes v. Fraternal Ass'n, 222 Mo. 556. (8) Plaintiff's Instruction 9 is erroneous. This instruction covered the question of compensatory and punitive damages. It misdirected the jury as to punitive damages as (a) it did not advise them that they might in their discretion award punitive damages if they found the words used were maliciously spoken, and ignored the evidence that the words were spoken in good faith; (b) because said instruction impliedly allowed double damages as it told the jury in determining the amount of exemplary damages they might take into consideration "the extent of the injury done plaintiff." Callahan v. Ingram, 122 Mo. 355; Ickenroth v. Transit Co., 102 Mo.App. 597. (9) It was error to admit evidence on the part of the plaintiff that the plaintiff's reputation for honesty and fair dealing was good, in the absence of any attack on the plaintiff's character or reputation. Cooper v. Phipps, 24 Oregon 357, 33 P. 985; Odgers on Libel and Slander (5 Ed.), p. 391 and 686; Townsend on Slander and Libel (4 Ed.), p. 645; Newell on Slander and Libel (2 Ed.), p. 771; 1 Wigmore on Evidence, sec. 76.

J. L. Stephens, E. S. Gantt, Fauntleroy, Cullen & Hay for respondent.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.

This is an action for slander, brought by C. E. Garey, plaintiff below, in the circuit court of Boone county, against C. M. Jackson, defendant below. After a trial, resulting in a hung jury, the venue was changed by consent to the circuit court of Audrain county, where, upon a hearing of the case, judgment was rendered in favor of plaintiff and against defendant in the sum of $ 1000 actual damages and $ 1250 punitive damages, from which judgment defendant appeals.

We think it necessary for a proper understanding of the case that we quote the inducement or colloquium, the false and defamatory words alleged to have been spoken, and the innuendo set out in plaintiff's amended petition.

"Plaintiff for his amended petition herein leave of court being first had and obtained to file the same, states that the defendant is now and was at all the times hereinafter mentioned, dean of the medical department of the Missouri state university, and was on the 6th day of December, 1910, chairman of the board of directors of the book, stationery and supply store operated at the said state university, and known as the "university co-operative store;' that plaintiff, on the said 6th day of December, 1910, and for some time prior thereto, owned and operated what is known as the 'Missouri store' situated near the state university campus on South Ninth street in the city of Columbia, Missouri, and was engaged in the book, stationery and student supply business; that on the said 6th day of December, 1910, at a public meeting held in the auditorium of the main building of said university the defendant, in the presence and hearing of a public assembly of persons then and there assembled, gave public utterance to certain wanton, false, defamatory, malicious and slanderous words and language of and concerning plaintiff and his methods of business as proprietor and manager of the Missouri store aforesaid, and as a competitor of the said co-operative store, as follows, to-wit:

"'That about two years ago in the Summer when the students were away, Mr. Garey (meaning this plaintiff), who was then manager of the students' co-operative store (meaning the store run and operated by plaintiff), which was conducted for and owned by the university body, resigned his position and opened up a rival store, (meaning the Missouri store) taking with him (meaning plaintiff) a quantity of second-hand books (meaning then and there and intending to charge, and charging plaintiff with the offense and crime of unlawfully taking stealing and carrying away said books and thus guilty of the charge and offense of theft or larceny) he, Garey (meaning the plaintiff), deserted the cause of the students and expressed a determination to put the co-operative store out of business altogether, but Mr. Maddox after a short time was persuaded to take the management of the cooperative store; that Mr. Maddox with all his faults is human, but he is certainly not the sort of man to desert the students' interest and go over and start an opposing store and attempt to injure the interests of the students in every way possible (meaning and referring to and condemning the action of plaintiff in leaving the co-operative store, in order to infuriate and prejudice the faculty and students against plaintiff and to injure him in his business). That it was made clear to the board that under the plan of issuing stock broadcast some unscrupulous person (meaning this plaintiff and that said plaintiff was unscrupulous in his trade or business in running and operating the Missouri store) might buy enough of the available stock to secure a controlling interest in the business and in that way injure the interest of the students. As a matter of fact, there was in...