Hauser v. Steigers

• Decision Date: 11 May 1909
• Parties: HAUSER v. STEIGERS.
• Court: Missouri Court of Appeals

119 S.W. 52

137 Mo. App. 560

HAUSER v. STEIGERS.

St. Louis Court of Appeals. Missouri.

May 11, 1909.

1. LIBEL AND SLANDER (§ 100)—PLEADING AND PROOF—VARIANCE.

While the slanderous accusation may be proved in no other words than those laid in the petition, yet, if enough of those words to express the accusation are proved to have been spoken, failure to prove other immaterial words laid therein, or proof of the use of other immaterial words not laid therein, is not a fatal variance.

2. TRIAL (§ 192) — INSTRUCTIONS—ASSUMING UNDISPUTED FACTS.

The court need not make an issue of fact for the jury as to a matter about which there is no controversy, but may assume its truth.

3. TRIAL (§ 295)—INSTRUCTIONS—CONSTRUCTION AS A WHOLE.

Any suggestion in an instruction that, if the verdict is for plaintiff, the jury in estimating punitive damages may consider certain things; and that punitive damages must follow a verdict for plaintiff, is dispelled by the instructions as a whole; the preceding one being that, if verdict is for plaintiff the jury must assess his damages at such sum as will fully compensate him, and that, if they believe defendant maliciously uttered the words, they may add an additional sum as exemplary or punitive damages, and the following one being that if the jury find for plaintiff and assess exemplary damages, under the other instructions, they shall state the actual and punitive damages separately, and they having also been instructed that they could not allow punitive damages if they found defendant did not speak the words maliciously.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Herman Hauser against William C. Steigers. Judgment for plaintiff. Defendant appeals. Affirmed.

Plaintiff demanded both actual and punitive damages for a slander alleged to have been spoken of him by defendant. The slanderous remark is laid in the petition in two forms: "First. I know all about that waiter (meaning, pointing out and at the plaintiff). There was $5 in the pocketbook. Second. That waiter (meaning, pointing out and at the plaintiff) has got the pocketbook. There was $5 in the pocketbook." As explanatory matter and by way of inducement, the petition states plaintiff on the day the slander was uttered, or July 10, 1905, was a waiter in a café at the northeast corner of Seventh and Locust streets, where defendant, accompanied by a young lady, entered to eat luncheon, and it became plaintiff's duty to serve them, and he did so. After they had finished their meal and arisen from the table, defendant said a pocketbook belonging to the young lady, and with $5 in it, had been taken by plaintiff from the table at which defendant was served. The petition then avers the speaking of the slanderous words to John Beltram, who was in charge of the café, alleges they were wickedly and maliciously spoken with the intent to injure plaintiff in his good name, fame, and credit, and to cause to be believed and suspected that he had been guilty of stealing the pocketbook with money in it, that defendant spoke the words in an angry tone of voice, with a perceptible angry expression on his face and in the hearing of others than plaintiff, that defendant intended by said words to accuse plaintiff of the crime of stealing the pocketbook with $5 in it, and was so understood by the persons who heard the words. The answer was a general denial. Witnesses for plaintiff testified defendant said to Beltram, pointing at plaintiff at the same time: "That waiter has got the pocketbook. I know all about it. There was $5 in it." Also, that defendant said: "That waiter has got the pocketbook. There was $5 in it." During the meal there was a pocketbook lying on the table, and after defendant and his guest had left the restaurant they returned, and defendant asked plaintiff if he had seen the pocketbook on the table. Plaintiff said he had not seen it since defendant had left, and defendant then said he knew he (defendant) had left it, and plaintiff must have it. Whereupon the latter said defendant might search him, and that if the pocketbook had been left on the table it was still where it had been left. It was not contended at the trial plaintiff had taken the purse. At the conclusion of the evidence defendant requested the court to direct a verdict for him, and this request was refused.

The main instructions given for plaintiff are complained of, and we quote two of them: (1) "The court instructs the jury that it is slanderous to maliciously defame any person by speaking falsely of and concerning such person in the presence and hearing of another or others than the person so falsely spoken of and concerning such person that he has committed a criminal offense under the laws of this state, and if therefore you believe and find from the evidence that the defendant did, in the city of St. Louis, and state of Missouri, on or about the 10th day of July, 1905, speak of and concerning the plaintiff, Herman Hauser, in the presence and hearing of another or others than the plaintiff, the words: `I know all about it. That waiter has got the pocketbook. There was $5 in it'—and that the words thus spoken were false, and thereby the defendant meant to charge, and it was understood by those present that the plaintiff was charged by the defendant with, the criminal offense of larceny, then you are instructed that such words were slanderous, and your verdict should be for the plaintiff." (4) "The court instructs the jury that if you find from the evidence that the defendant did, in the city of St. Louis and state of Missouri, on or about the 10th day of July, 1905, speak of and concerning the plaintiff, Herman Hauser, in the presence and hearing of another or others, than the plaintiff, the words: `I know all about it. That waiter has got the pocketbook. There was $5 in the pocketbook'—and that the words thus spoken were false and slanderous, and that thereby the defendant meant to charge, and it was understood by those present that plaintiff was charged by defendant with, the criminal offense of larceny, then you are instructed that the law presumes that plaintiff was damaged thereby, and the plaintiff is not required to offer proof of actual damages in order to entitle him to recover." The second instruction is a counterpart of the first and the fifth of the fourth, except that in the second and fifth the words "I know all about it" were omitted from the alleged slanderous statement, and the jury was required to find only that plaintiff had said: "That waiter has got the pocketbook. There was $5 in it." One instruction, the eighth, relating to punitive damages, is challenged, and, as plaintiff says it must be read in connection with the others, we will copy all given for both plaintiff and defendant on that subject: Those for plaintiff were as follows: (7) "The court instructs the jury that if they find for the plaintiff they must assess his damages at such sum as will fully compensate him for the damages he has sustained by reason of the utterance of the words complained of and which the jury may believe from the evidence were spoken by defendant of and concerning the plaintiff in the hearing of another or others than plaintiff, and if the jury believe that the defendant maliciously uttered the said words, which the jury shall find were so spoken by him, then the jury may add such additional sum by way of exemplary or punitive damages as will punish defendant for the utterance of said...