Hoeffner v. Western Leather Clothing Co.

• Decision Date: 05 May 1942
• Docket Number: No. 26025.,26025.
• Citation: 161 S.W.2d 722
• Parties: HOEFFNER v. WESTERN LEATHER CLOTHING CO. et al.
• Court: Missouri Court of Appeals

161 S.W.2d 722

HOEFFNER v. WESTERN LEATHER CLOTHING CO. et al.

No. 26025.

St. Louis Court of Appeals. Missouri.

May 5, 1942.

Rehearing Denied May 19, 1942.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

"Not to be reported in State Reports."

Action for slander by Elizabeth Hoeffner against the Western Leather Clothing Company and Nathan Floom. Plaintiff took an involuntary nonsuit as to the Western Leather Clothing Company, and plaintiff's cause of action was ordered dismissed as to that defendant. From a judgment for plaintiff against defendant Nathan Floom, that defendant appeals.

Affirmed.

Frank E. Atwood, of Jefferson City, and Victor Packman, of St. Louis, for appellant.

Horace T. Robinson and Robert L. Maul, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for slander which was brought by Elizabeth Hoeffner against her former employer, Western Leather Clothing Company, and its president, Nathan Floom. At the close of the whole case the court sustained a demurrer to the evidence which was interposed by defendant Western Leather Clothing Company, whereupon plaintiff took an involuntary nonsuit as to such defendant. The case was submitted as to defendant Nathan Floom alone, and resulted in the return of a verdict in favor of plaintiff, and against such defendant, for $2,500 actual damages and $2,500 punitive damages, aggregating the sum of $5,000.

Thereafter, as a condition to the overruling of the motion for a new trial, the court required a remittitur of $2,000 from the award of actual damages; and such remittitur being entered by plaintiff, the motion for a new trial was overruled and judgment entered in favor of plaintiff, and against defendant Floom, for $500 actual damages and $2,500 punitive damages, aggregating the sum of $3,000. It was further ordered and adjudged that plaintiff's cause of action be dismissed as to defendant Western Leather Clothing Company. From the judgment so entered, defendant Nathan Floom has perfected his appeal to this court in the usual course.

The appeal being by defendant Floom alone, no reference will be made to the pleadings or issues as they might otherwise have related to defendant Western Leather Clothing Company.

The petition charged that on August 28, 1939, on the first floor of defendant company's place of business in St. Louis, Missouri, defendant Floom, in the presence and hearing of certain designated persons and others whose names were unknown, but all of whom heard and understood the import of his words, falsely, willfully, wantonly, maliciously, and wrongfully spoke of and concerning plaintiff the following defamatory and slanderous words: "She's a crook and a thief. She's worse than anybody in this factory. She's worse than her sister. You are the worst crook that I've got."

The answer to such petition was a mere general denial.

This case is in a sense a companion case to Boehm v. Western Leather Clothing Company, Mo.App., 161 S.W.2d 710, the opinion in which is handed down herewith.

Plaintiff and her sister, Ann Boehm, the plaintiff in the other case, both of whom had been born in Hungary and had been brought to this country as children, had both been employed by Western Leather Clothing Company for some six or seven years at the time of the respective incidents that led up to the institution of the two proceedings. Plaintiff, who is thirty-eight years of age, is the older of the two; and both are experienced operators of the type of machines that the company uses in the manufacture of its leather garments.

Defendant Floom is likewise of foreign birth, having emigrated from Poland when he was twenty-three years of age, and having at first located in New York City, from whence he came to St. Louis in 1923 and became associated with Western Leather Clothing Company, of which he is the president.

In 1939, Western Leather Clothing Company had an independent leather workers' union to which some 95% of its employees belonged. The chief purpose of the organization was to act as a bargaining agency with the company in connection with such matters as the periodical making of contracts covering wages and working conditions. Plaintiff was a member of the organization, and in June, 1939, was elected chairman of the operators' committee composed of representatives from each of the sections in the plant. In such capacity, it was her duty to smooth out difficulties arising between the company and its employees; and under the procedure that was required to be followed in negotiations between the company and its employees, a grievance of any sort was first brought to her individual attention so that she might call her committee together for the disposition of the matter.

Prior to the time that plaintiff was elected chairman of the operators' committee, her relations with Floom and the other officials of the company had been very friendly, but from that time on, according to her testimony, there was a change in their attitude towards her because of her insistence in upholding the rights of the employees with respect to wages, hours of labor, and the like. Indicative of this fact was an incident that occurred early in August, 1939, when she chanced to overhear a conversation between Floom and one Epstein, the secretary and treasurer of the company, in which Epstein advised Floom to strike at her through her relations, a number of whom were in the company's employ.

As a matter of fact, it was in the latter part of the same month that Floom charged plaintiff's sister, Ann Boehm, with being a crook and a thief, and then followed his charge with the threat to deduct $10 a week out of her pay so long as she remained an employee of the company. It was such defamatory charge on Floom's part that led to the institution of Ann Boehm's action, the opinion in which, as we have already indicated, is being handed down herewith.

On the day in question in this proceeding, plaintiff went downstairs to the office to have a discussion with Floom about a belt boy who had been discharged upon the ground, according to Floom, that he wasn't suitable for the job. It appears that the boy was a cripple; and at any rate the members of the committee had interested themselves in his plight, and had instructed plaintiff to confer with Floom with a view to the boy's reinstatement.

Plaintiff was accompanied to the conference by Velda Yates and Waldo Taylor, both of whom were members of the committee, and as soon as the purpose of their visit was made known, Floom shouted out that he didn't want the belt boy back, and started to argue with plaintiff to the effect that she was trying to run his business, and that if she did not mind her own business, he would get rid of her. One word led on to another, until finally plaintiff summoned the entire membership of the committee; and when all seven or eight members of the committee were assembled, including, among others, Louis Leonhardt and Julius Fernandez, Floom spoke to the group and said with reference to plaintiff (according to her version of the facts): "She wants to run my business; she is a crook and a thief; she is the worst thing I have got working for me." Later she testified that he pointed to her when he spoke, and said, "She is the worse crook I ever saw." This remark, incidentally, was made by way of comparison between plaintiff and her sister, Ann Boehm, the question of whose honesty was also brought into the discussion, and with respect to which matter Floom said that plaintiff was "worse than she was".

Following the incident complained of, plaintiff remained in the company's employ until after the institution of the present action, when she was given a letter of discharge effective October 11, 1939.

As a matter of first insistence appellant argues that the court committed error in refusing his request for a peremptory instruction at the close of the entire case.

While the brief makes some mention of the question of qualified privilege, there is actually no such issue in the case. This for the reason that the defense of privilege is in its very nature a plea of confession and avoidance which must be specially raised by answer, and is not presented by a mere general denial such as was filed by appellant in the case at bar. Reese v. Fife, Mo.Sup., 279 S.W. 415; Sitts v. Daniel, Mo.App., 284 S.W. 857.

That Floom uttered the words, "She's a crook and a thief," was frankly admitted; but the contention was that the words were spoken, not with reference to plaintiff, but instead with reference to plaintiff's sister, Ann Boehm, whose honesty in her dealings with the company had been the subject of a previous inquiry, and was concededly again brought up on the occasion in question in the course of the quarrel between plaintiff and Floom. The important question, therefore, from the standpoint of plaintiff's right to go to the jury, is whether there was substantial evidence of a communication of the slanderous words in the sense that such words were heard and understood by the third persons present as being intended to refer to plaintiff.

It is of course axiomatic that in order to constitute a slander, there must be a publication of the slanderous words, which means that the burden is on the plaintiff suing for slander to show that the words complained of were communicated to some third person or persons who heard and understood their import. Starnes v. St. Joseph Ry., Light, Heat & Power Co., 331 Mo. 44, 52 S.W.2d 852; Walker v. White, 192 Mo.App. 13, 178 S.W. 254; Nichols v. Chicago, R. I. & P. Ry. Co., Mo.App., 232 S.W. 275; Crecelius v. Bierman, 59 Mo.App. 513; Norris v. Brady, 234 Mo.App. 437, 132 S.W.2d 1059. However, it is not in all events essential that such proof be made by the testimony of the hearers themselves (although their testimony is admissible, especially where the words themselves are ambiguous with respect to the person to whom they refer), but it suffices...