Grimes v. Thorp
| Decision Date | 26 June 1905 |
| Parties | JOSEPH B. GRIMES, Respondent, v. BENJAMIN THORP, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cedar Circuit Court.--Hon. Wm. L. Jarrott, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. C Hastin and Woodruff & Mann for appellant.
(1) The colloquium in the third and fourth counts in the petition shows upon the face thereof, in each count, that the alleged taking in either count was not larceny. Plaintiff was in possession of the corn, and merely failed to deliver to defendant. Such failure is not larceny. R. S. 1899, secs 1898, 1910; Kelley's Crim. Law, sec. 652; Hall v Adkins, 59 Mo. 144; State v. Storts, 138 Mo. 127. (2) Since the petition shows upon its face that under the circumstances alleged in each of said third and fourth counts defendant, by the alleged slanderous words, to the effect that plaintiff had taken his corn, did not intend thereby to charge plaintiff with the crime of larceny as plead in the innuendo in each of said counts, the petition showed upon its face no cause of action on account of either of said counts; the corn in the possession of plaintiff was not the subject of larceny from defendant. Alderson v. Auerswald, 80 Mo.App. 372; Trimble v. Foster, 87 Mo. 49. (3) Defendant's objections to the introduction of any testimony under either of said third or fourth counts should therefore have been sustained. Walter v. Holfner, 51 Mo.App. 51. The court erred in instructions numbered 3 on the first count and numbered 5 on the second count, given on behalf of plaintiff. Because they tell the jury that in making up their verdict they may take into consideration all the facts and circumstances detailed in evidence with reference to the respective counts by plaintiff and defendant. Each of these instructions specifically authorizes the jury to take into consideration the evidence of independent slanderous utterances by defendant in determining the truth of the original charge, and, also, in fixing the amount of compensatory damages, when the evidence was competent only in determining what, if any, punitive damages the jury should award. Jones v. Murray, 167 Mo. 47; Callahan v. Ingram, 122 Mo. 372-373, 374; Krup v. Corley, 95 Mo.App. 647. (4) The court erred in instruction numbered 9 given at the request of plaintiff: (a) Because the constitution provides that in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. The Constitution, therefore, does not provide that in suits or prosecutions for slander the jury should be the judge of the law. Art. 2, sec. 14, Const. of Mo.; R. S. 1899, sec. 2262. (b) The Constitution, art. 2, sec. 14, as written, applies only to suits or prosecutions for libel, and does not apply to slander. Heller v. Pulitzer, 153 Mo. 214.
Thomas L. Nelson and Cole, Burnett & Williams for respondent.
(1) Instruction numbered 3 on the first count and numbered 5 on the second count properly declared the law. Under each of said instructions before the jury could allow penal or exemplary damages, the jury were required to find that the acts complained of, in each count, respectively, were malicious on the part of defendant. Hall v. Jennings, 87 Mo.App. 636; Construction Co. v. Railway, 71 Mo.App. 629; Railway v. Townsite Co. 103 Mo. 468. (2) Plaintiff's instruction numbered 4 properly declared the law. The words uttered as charged in the second count did not explain that when plaintiff gathered the corn grown on the 28-acre bottom field rented from defendant in 1902 that defendant meant that plaintiff delivered less than two-fifths of the rent to defendant and retained for himself more than three-fifths thereof, of which he hauled and sold a part to Teidgen. But whether or not defendant only spoke of and concerning that fact was fairly submitted to the jury by plaintiff's instructions and defendant's instruction numbered 3. Where the words are per se actionable, the plaintiff need not prove anything beyond the speaking of the words, and the burden is upon the defendant to show the facts which deprive the words of their actionable quality, if he relies upon them for a defense. 18 Am. & Eng. Ency. of Law (2 Ed.), sec. 4, p. 1077. (3) Article 2, section 14, Constitution of Missouri in its provisions covers and includes slander. The term libel as used in section 14 refers back to "freedom of speech" and "to say write or publish" and includes what is "said" as well as what is "written or published. A written constitution must be interpreted rather with reference to its special and general intent and the ordinary and usual sense of the phraseology than to the literal, and technical meaning of the words used. People v. Faucher, 50 N.Y. 288. (4) The established canons of construction applicable to statutes, apply as well to constitutions. Nicholson v. Thompson, 5 Rob. (La.) 367; People v. Potter, 47 N.Y. 375; Endlich on Interpretation of Statutes sec. 38, p. 48; sec. 39, p. 50; sec. 40, p. 50. If the instruction was erroneous, the error was favorable to defendant. Heller v. Publishing Co., 153 Mo. 213. Where an additional burden is cast upon respondent, appellant is in no position to complain. Paretti v. Rebenack, 81 Mo.App. 494.
The plaintiff brought his action against defendant charging in four counts that the latter had slandered him. The third and fourth were dismissed by the court and a verdict for plaintiff was had on the first and second, the finding being for both compensatory and exemplary damages on each count, aggregating two thousand dollars. Defendant appealed.
1. The first count states the slander as that plaintiff used this language: "Yes, I did accuse Joe Grimes of stealing my corn, and he did steal it, and by God I can prove it."
The second count sets out that while plaintiff was residing on defendant's farm as his tenant, he spoke of plaintiff to one Charles W. Stevenson, the following false and slanderous words, to-wit: "I know I never got all my rent corn off of the ground that Joe Grimes had rented; the corn that Joe Grimes sold to Teidgen was my corn, and I am satisfied that Grimes stole my corn."
The words charged in the first count are conceded to be slanderous per se. But it is said that those in the second count are not slanderous, but that they carry along with them a meaning which shows that they could not be. [Trimble v. Foster, 87 Mo. 49.] The point made is that plaintiff was defendant's tenant on the shares and that plaintiff being in possession of the corn, undivided between landlord and tenant, could not be guilty of larceny. That, however, does not appear from the language used. The utterance does not show the corn was not the specific property of defendant. The language used does not disclose that a larceny could not have been committed. The mere fact that it was "rent corn" does not show it.
2. The petition asked for exemplary...
To continue reading
Request your trial