Harriman v. Sayman

• Decision Date: 03 April 1917
• Parties: WILLIAM HARRIMAN, Respondent, v. T. M. SAYMAN, Appellant
• Court: Missouri Court of Appeals

193 S.W. 1001

197 Mo.App. 208

WILLIAM HARRIMAN, Respondent, v. T. M. SAYMAN, Appellant

Court of Appeals of Missouri, St. Louis

April 3, 1917

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Charles E. Morrow for appellant.

(1) The defendant's demurrer to the evidence should have been given. The plaintiff, under his admissions and the uncontradicted evidence, was guilty of two transactions which prove the truth of all the charges made in the language used in the second count of his petition upon which he recovered, namely: getting the twenty-five dollar rake-off on the Weis contract, and collecting the $ 3.50 for the Old Time Cafe and converting it to his own use. These transactions are admitted under oath by the plaintiff in his deposition taken before the trial, and he gave no reasonable explanations for changing his testimony. He seriously contradicted himself in his changed testimony at the trial. Steele v Railroad, 265 Mo. 97. The plaintiff made so many contradictory statements in his testimony about these transactions and other matters that he ought not to be taken seriously about anything, and the court should not allow a recovery in his behalf for slander to stand. (2) The charge that plaintiff had robbed the defendant of hundreds of dollars does not mean that plaintiff was guilty of the crime of robbery. At least it is ambiguous, and it was explained by the plaintiff in an innuendo claiming that the defendant meant to charge the plaintiff with larceny, and the plaintiff is bound by the meaning placed upon the language in the innuendo. Callahan v. Ingram, 122 Mo. 355; Crandall v. Greeves, 181 Mo.App. 235, 238; Michael v. Mathies, 77 Mo.App. 556; Allen v. Halliman, 12 Pick. 101. (3) The charge that plaintiff was a crook is not actionable per se. It can only mean that plaintiff was dishonest, and such was the meaning placed upon it by the plaintiff in his innuendo. Oral imputation of dishonesty or rascality are not actionable per se, unless used in respect to plaintiff in his reputation in his trade or business and special damage is shown. Rammel v. Otis, 60 Mo. 365; 25 Cyc. 266. Mere words of common vilification and abuse are not actionable. 25 Cyc. 268. It is not actionable per se to say of one that he is a rogue, a rascal, a scoundrel, or a villain. 25 Cyc. 267. The rule at common law in slander is that oral words tending to disgrace a person, and not imputing a crime, are not actionable without proof of special damage. Jones v. Banner, 172 Mo.App. 132, 137. (4) Plaintiff's instruction 2 did not confine the charges imputed to the plaintiff to the meaning placed upon them by him in his innuendoes. (a) It submitted to the jury to determine what charges were imputed to the plaintiff by the language used. (b) It assumed that the language used did impute to the plaintiff the charge of "having robbed the defendant." (c) It correspondingly placed upon the defendant the burden of proving that the plaintiff had robbed the defendant in order to prove the truth of the charge. Patterson v. Evans, 153 Mo.App. 684. (d) It permitted the jury to speculate in their own minds as to what constituted the charge of having robbed the defendant. Krup v. Corley, 95 Mo.App. 640; Boyce v. Wheeler, 161 Mo.App. 504, 507, 508. (e) It does not define robbery, if the charge means robbery, or larceny, if it means larceny, as explained in the innuendoes. Krup v. Corley, 95 Mo.App. 640; Boyce v. Wheeler, 161 Mo.App. 504, 507, 508. (f) It was error to tell the jury that plaintiff could recover if enough of the words stated have been proven "to substantially constitute the charge imputed to plaintiff. " Enough of the words spoken must be proven to constitute the charge. Parsons v. Henry, 177 Mo.App. 329; Atterberry v. Powell, 29 Mo. 429, 435.

John M. Goodwin, Henderson & Henderson and Brownrigg & Mason for respondent.

(1) The charge that plaintiff had robbed defendant of hundreds of dollars is unequivocal, unambiguous and unexplained by anything else contained in the statement. The words taken in their natural and obvious signification are actionable in themselves without the alleged meaning attributed to them in the innuendo, and plaintiff therefore, had a right to rely on the words themselves, rejecting the innuendo as surplusage. Callahan v. Ingram, 122 Mo. 355, 367; Julian v. Kansas City Star, 209 Mo. 35, 91; Sotham v. Telegram Co., 239 Mo. 606, 620. (2) Plaintiff's instruction No. 2 is a correct statement of the law. The plaintiff would have been entitled to recover if the jury believed that the charge that plaintiff had robbed the defendant of hundreds of dollars was false, taking the words in their natural and obvious significance without regard to the innuendo. Callahan v. Ingram, 122 Mo. 355, 367; Julian v. Kansas City Star, 209 Mo. 35, 91; Sotham v. Telegram Co. , 239 Mo. 606, 620.

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

OPINION

BECKER, J.

This is a slander suit and while the plaintiff's amended petition contains seven counts, the case, upon hearing, was finally submitted to the jury upon two counts. There was a judgment in favor of plaintiff on his second count for $ 1500 actual and $ 3500 punitive damages, from which defendant appeals.

We set forth the statements by way of inducement, the alleged slanderous words, and the innuendo in that count of plaintiff's petition on which he obtained the judgment.

"That on or about September 6, 1911, plaintiff entered into the employ of defendant as a printer and manager of defendant's printing business, which was conducted under the name of the 'Rush Printing Company;' that under and by virtue of plaintiff's employment as before stated, it was his duty to manage, conduct, transact and carry on all of the business of said Rush Printing Company; that on December 13, 1912, plaintiff severed his connection with defendant as aforesaid and ceased to work for defendant in the capacity before mentioned; that at said time, and at all times prior thereto, plaintiff had fully and honestly accounted for and turned over to defendant all money and property of whatsoever kind he had in his possession belonging to said defendant, and plaintiff had fully and efficiently and completely performed all of the duties and all of the services imposed upon him by his contract of employment with defendant." . . .

"That on or about the 3rd day of January, 1913, in St. Louis, Missouri, after plaintiff had left employ of defendant, defendant well knowing all of the before-mentioned facts, set forth concerning plaintiff, wickedly, designedly and maliciously contriving to injure plaintiff in his good name and standing in his business and occupation, as before defined, and to bring plaintiff into public scandal, infamy and disgrace with all persons, and especially those with whom plaintiff was then connected and associated in the pursuit of his business and occupation, or by whom he would likely become employed and associated with, and with his then employer, in the presence and hearing of Z. Guilbeault and other persons, whose names are unknown to plaintiff, who were then employed by the T. J. George Press Room Company, for whom plaintiff was at the time working, willfully, wantonly and maliciously spoke of and concerning plaintiff, and concerning him in his business and occupation, certain false, defamatory and slanderous words, to-wit:

"'Where is Mr. Harriman (meaning plaintiff); are you (meaning Guilbault) going to let him out, as I told you over the phone yesterday: that g--d d--m s--n of a b---ch has robbed me (meaning defendant) of hundreds of dollars, and if you intend to keep a crook in your employ you won't get any more work of mine. Put that under your cap,' meaning and referring to plaintiff, and meaning thereby that plaintiff was a thief and had wrongfully taken and stolen money and property from the defendant, and meaning thereby that plaintiff was guilty of the heinous crime of larceny, and meaning thereby that plaintiff was dishonest and lacked credit, integrity and ability in his occupation and business of a printer and other services he performed in connection therewith, and meaning thereby that plaintiff was a dishonorable and dishonest employee and unworthy of being employed by his then employer."

Defendant's answer was a general denial and a further answer that whatever words may have been spoken of and concerning the plaintiff were true. The reply was a general denial of the new matter contained in the answer.

There was a sharp conflict in the testimony. It is sufficient to say that the testimony for the plaintiff tended to prove the allegations in his petition. The defendant himself denied having spoken the words, and sought, by various witnesses, to prove the truth of the alleged slanderous words.

Having in mind the statements contained in the second count of plaintiff's petition by way of inducement, and all...