Hancock v. Blackwell

• Decision Date: 08 June 1897
• Parties: Hancock v. Blackwell, Appellant
• Court: Missouri Supreme Court

41 S.W. 205

139 Mo. 440

Hancock v. Blackwell, Appellant

Supreme Court of Missouri

June 8, 1897

Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded.

Turner Hinton & Turner and Norton & Avery for appellant.

(1) The trial court should have sustained the defendant's demurrer to the evidence for the reason that the evidence only tended to show a single utterance of the alleged slanderous words, namely, to a public peace officer in the course of such officer's investigation of a recent larceny. Clark v. Molyneux, L. R. 3 Q. B. D. 237; Blakeslee v. Carroll, 29 A. 437; O'Donaghue v. M'Govern, 23 Wend. 26; Grimes v. Coyle, 6 B. Mon. 301; Dale v. Harris, 109 Mass. 193. (2) The release set up in the defendant's answer in this case was a completely executed contract, knowingly, voluntarily and understandingly entered into by the plaintiff, and constituted an absolute legal bar to her demand, and in this action it was not subject to attack for fraud not inhering in its execution. State ex rel. v. Jones, 33 S.W. 23; Och v. Railroad, 130 Mo. 27; Homuth v Railroad, 129 Mo. 629. (3) The plaintiff could not, on purely equitable grounds, rescind the contract of settlement and release without the aid of a court of equity. Och v. Railroad, 130 Mo. 27; Vandervelden v. Railroad, 61 F. 54. (4) Even if it should be conceded that one of the parties to a completely executed contract of release, could rescind such contract on purely equitable grounds without the aid of a court of equity, yet such right could not be exercised without first placing the adverse party in statu quo. Jarrett v. Morton, 44 Mo. 275; Estes v. Reynolds, 75 Mo. 563; Robinson v. Siple, 129 Mo. 208; Lewis v. Land Co., 124 Mo. 672. (5) Even if the plaintiff originally had a right to avoid this release by timely application to the court of equity or otherwise, her conduct in obtaining from the defendant a second written statement of exoneration upon the faith of the compromise, and in using that statement and having it published in the newspaper, amounted to such an acquiescence in, and ratification of, the settlement as to preclude any subsequent repudiation. Taylor v. Short, 107 Mo. 384; Nauman v. Oberle, 90 Mo. 666. (6) The plaintiff's reply failed to state facts sufficient to avoid the release. Powell v. Adams, 98 Mo. 598; Quinlan v. Keiser, 66 Mo. 603; Lewis v. The Land Co., 124 Mo. 672. (7) The evidence wholly failed to sustain the charge of fraud and undue influence in the procurement of the release. Parker v. Marquis, 64 Mo. 38; Anderson v. McPike, 86 Mo. 293; Powell v. Adams, 98 Mo. 598. (8) The defendant was entitled to a trial by the court of the issues involved in the validity of the release, and it was error to submit the whole case to the jury in a lump. McFarland v. Railroad, 125 Mo. 253. (9) The trial court admitted illegal and incompetent evidence on the part of the plaintiff concerning the family troubles of defendant. State v. Gesell, 124 Mo. 531; McFadin v. Catron, 120 Mo. 252; Ephland v. Railroad, 57 Mo.App. 147; Reed v. Pelleiter, 28 Mo. 173; Fougue v. Burgess, 71 Mo. 389; State v. Grote, 109 Mo. 345; Goltz v. Griswold, 113 Mo. 144.

Odon Guitar, Webster Gordon and W. M. Williams for respondent.

(1) The utterance of the slanderous words charged was not "a privileged communication" in "fact" or in law. Liske v. Stevenson, 58 Mo.App. 220; Conroy v. Pittsburgh Times, 11 L. R. A. 725. Appellant had no personal interest in the subject of the larceny, disclosed no fact connected with it, and without evidence assumed plaintiff's guilt, predicated upon the assumption of extraneous facts which he alleged to exist. Town on Slander, secs. 208, 209, note 1; Odgers on Slander, p. 304; State v. Derry, 20 Mo.App. 552. (2) It is insisted that the question of "privileged communication" could not be raised by objection to the testimony of the witness Clinkscales, and that under our "code of civil procedure" such defense should have been specially pleaded. R. S. 1889, sec. 2049; Northrup et al. v. Miss. Valley Ins. Co., 47 Mo. 435; Town on S. & L., sec. 350, note 1. (3) The position assumed by appellant in the second point of his brief, "that an executed contract voluntarily and knowingly made, though procured by fraud and undue influence," can only be attacked for fraud inhering in its "execution," is unsupported by reason or authority. Fraud inhering in the execution of a contract renders it "absolutely void." It stands as though never made, and requires no rescission, in court or out, in equity or at law, to avoid it. Och v. Railroad, 130 Mo. 27; Girard v. Car Wheel Co., 123 Mo. 358; Lusted v. Railroad, 71 Wis. 391; Ryan v. Gross, 68 Md. 377; Peterson v. Railroad, 38 Minn. 511; Railroad v. Denham, 30 Mich. 128; Bliss v. Peters, 160 Mass. 447; Williams v. Railroad, 112 Mo. 463; Finlay v. Bryson, 84 Mo. 664; Wright v. McPike, 70 Mo. 177; Parker v. Marquis, 64 Mo. 38. (4) To the proposition "that plaintiff could not, on purely equitable grounds, rescind the contract of settlement and release, without the aid of a court of equity, we answer: First. The case was tried by the only tribunal in this State possessing "equity jurisdiction," the only question being whether in the trial of the cause it erred in the "manner of the trial." In the exercise of the jurisdiction conferred by the Constitution, the statute has provided in all cases, one form of action, and one form of pleading. Second. We hold that the question involved is simply one of "procedure," and in nowise involves the distinctions between "legal" and "equitable" rights. (5) The provisions of our code of civil procedure applying to all cases, are emphatic, and imperative, and confer the absolute discretion upon the trial judge to grant or refuse separate trials. R. S. 1889, sec. 2134; McFarland v. Railroad, 125 Mo. 253. (6) Fraud is "an issue of fact triable by a jury." Kitchen v. Railroad, 59 Mo. 514; Weiser v. Welch, 70 N.W. 438. (7) The case at bar is distinguishable from those cited by appellant in his brief, in this, that the replication not only sets up "fraud and undue influence," but also "want and failure of consideration." The only consideration for the release was the denial of the utterance of the words charged, contained in the so-called "retraxit" given plaintiff when she executed the release. The $ 10 mentioned was inserted in the release at the suggestion of Judge Martin to pay the cost in the case, and it is so stated in the release, and was so testified by Judge Martin. R. S. 1889, secs. 2090, 2131; Williams v. Mellon, 56 Mo. 262; Greer v. Yosti, 56 Mo. 307; Bishop on Con., sec. 71. (8) Plaintiff repudiated the "release" as soon as she was advised of the fraud that had been practiced upon her, and at once instructed her counsel to reinstitute the suit, which was done at the October term of the Boone circuit court, 1892. This tender was complete, defendant refusing to accept anything, or to consider the proposition of rescission. Berthold v. Rayburn, 37 Mo. 586; Westlake v. St. Louis, 77 Mo. 47; Deichmann v. Deichmann, 49 Mo. 109; Soap Works v. Sayers, 55 Mo.App. 15; Harwood v. Diemer, 41 Mo.App. 48; McManus v. Gregory, 16 Mo.App. 375; Lumber Co. v. Warner, 93 Mo. 388; Canda v. Wick, 100 N.Y. 127. (9) There was no acquiescence or ratification of the settlement after the reiteration of the slander by the defendant. The testimony shows that from that moment all communication and friendly relations ceased between the parties. (10) The extent to which the cross-examination may go, tending to discredit a witness, is "in the sound discretion of the trial court." Shelby v. Claggitt, 5 L. R. A. 606; Muller v. Hospital, 73 Mo. 242.

OPINION

In Banc.

Burgess J.

This is an action for damages for slander brought by plaintiff to the October term, 1894, of the circuit court of Boone county.

The petition was in two counts. The second count was dismissed before trial. The first count, upon which the case was tried, is as follows:

"Plaintiff by leave of court first had and obtained, for her amended petition herein states that heretofore, to wit, on or about the twelfth day of January, 1892, at the county of Boone and State of Missouri, it having been reported to E. C. Clinkscales, then marshal of city of Columbia, in said Boone county, and State of Missouri, that a larceny of thirty dollars or upwards had been committed in the dwelling house of one George D. Purinton in said city, he was on the date aforesaid and at the place aforesaid, approached by the defendant, who then and there entered into a conversation with said Clinkscales touching and concerning said larceny, and did then and there, and in the presence and hearing of said E. C. Clinkscales, maliciously, falsely and wantonly, speak and publish of and concerning the plaintiff, the following false and slanderous words, that is to say: 'Purinton and I have talked that matter all over, and I told him that I knew that girl (meaning the plaintiff) had taken that money the minute I heard of its disappearance; that everywhere she goes money disappears. She is an adventuress of the first water, and destined to become a noted crook,' then and there intending to charge and impute, and then and thereby falsely and maliciously charging and imputing, to plaintiff the crime of larceny in a dwelling house, as aforesaid, and being then and there so understood by the said E. C. Clinkscales as imputing to and charging plaintiff with the crime of larceny in a dwelling house, as aforesaid.

"By reason whereof plaintiff says she has been damaged in the sum of twenty-five thousand ($ 25,000) dollars, for which she asks judgment."

Defendant in his answer denies generally the allegations of the petition. The answer then avers that on...