Hoffman v. Graber

• Decision Date: 08 July 1941
• Docket Number: No. 25090.,25090.
• Parties: HOFFMAN v. GRABER.
• Court: Missouri Court of Appeals

153 S.W.2d 817

HOFFMAN v. GRABER.

No. 25090.

St. Louis Court of Appeals. Missouri.

July 8, 1941.

Rehearing Denied September 12, 1941.

Appeal from St. Louis Circuit Court; M. G. Baron, Judge.

"Not to be reported in State Reports."

Action for slander by Harry Hoffman against Dave Graber, wherein the defendant filed a counterclaim seeking damages for assault. From an adverse judgment, the plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

Montague Punch, of St. Louis, for appellant.

Taylor, Mayer, Shifrin & Willer, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for slander, the petition charging that defendant, on September 26, 1936, in the presence of a large number of persons who actually heard and understood his utterance, had willfully, wantonly, and maliciously spoken of and concerning plaintiff, certain false, defamatory, and slanderous words, to wit: "You are a crook and a thief."

It was further charged that by reason thereof plaintiff had been greatly injured in his good name, fame, and standing in the community; that he had suffered great distress of mind, shame, and embarrassment; and that his health had been permanently impaired.

Judgment was prayed for $5,000 as actual damages and $2,500 as punitive damages, or for the total sum of $7,500.

The answer was a general denial, coupled with a specific denial that plaintiff had been greatly injured, or that he had suffered any injury whatever in his good name, fame, and standing in the community by reason of any remark which defendant might have made of and concerning him on the occasion referred to in the petition.

Along with the answer defendant filed a counterclaim in which he sought damages from plaintiff upon the theory of an assault maliciously and wantonly committed upon him by plaintiff in the course of the occurrence which was the basis of plaintiff's cause of action.

Tried to a jury, a verdict was returned in favor of defendant on plaintiff's cause of action, and in favor of plaintiff on defendant's counterclaim.

Defendant filed no motion for a new trial upon his counterclaim, but instead elected to abide the verdict of the jury. Plaintiff, however, filed a motion for a new trial upon his cause of action; and this being overruled, judgment was entered in conformity with the verdict, from which plaintiff's appeal to this court has followed in the usual course.

The incident giving rise to this lawsuit occurred at the entrance to a Jewish synagogue located at 6627 Enright Avenue in University City, Missouri, which was the place of worship of Chafetz Chaim Church, an orthodox Jewish congregation of which plaintiff, Harry Hoffman, was president. Indeed, the occurrence seems to have had its inception in ill feeling which had resulted from a division in the congregation some nine years before when defendant's father and certain other members of the congregation had withdrawn their membership and formed a new congregation with a synagogue located a few blocks away at 6900 Delmar Boulevard in University City.

Strangely enough, the trouble was had on Yom Kippur, or the Day of Atonement, which the record identifies as the most sacred and solemn holiday in the Jewish calendar, a day on which Jews throughout the world, after a period of fasting, congregate together at their respective synagogues to worship and pray and ask divine forgiveness for sins committed during the year.

Plaintiff's evidence disclosed that on the day in question plaintiff was present at his own synagogue, where a large crowd of worshipers was in attendance, and that in his capacity as president of the congregation he had made an appeal for aid for Jewish schools. Plaintiff specifically denied that in the course of his remarks he had made any mention of defendant's father, in which denial he was corroborated by some four witnesses, all of whom claimed to have been in attendance at the service, and to have heard plaintiff's remarks.

Plaintiff further testified that upon becoming weak from illness during the course of the service, he had requested one Getz to take him to the latter's home, and that as he and Getz were in the act of leaving the synagogue, he was accosted by a man, who, after identifying himself as the defendant, Dave Graber, charged him with having insulted his father, and, despite his denial, addressed the alleged slanderous remarks to him in the presence and hearing of a considerable number of persons standing around upon the sidewalk.

Plaintiff's evidence was to the effect that he did not strike or attempt to strike defendant, but that on the contrary, defendant threatened plaintiff's life, and was restrained from violence by Getz, who stepped in between the two men and pushed defendant away to prevent him from striking plaintiff and creating any further disturbance.

Defendant's evidence was almost wholly contradictory to that of plaintiff on all the important particulars of the case.

One Sacks, a witness for defendant, testified that on the occasion in question he had been present in the synagogue at 6627 Enright Avenue, where plaintiff was in charge of the service; that he had heard plaintiff, in the course of his remarks, refer to defendant's deceased father as a crook who had taken away money belonging to the congregation; and that upon hearing such remarks from plaintiff, he had left the service and gone over to the synagogue at 6900 Delmar Boulevard, where he had sought out defendant and informed him of the things that plaintiff had said.

Testifying as a witness in his own behalf, defendant likewise recounted the fact that Sacks had informed him of how plaintiff had stood before the altar in the synagogue and condemned his father as a crook who had stolen the money of the congregation and turned it over to another congregation.

He testified further that when Sacks told him of this circumstance, it made him feel "pretty bad"; that he then determined to go over to the Enright Avenue synagogue to find out, if he could, why plaintiff was making such accusations against his father; that on the way he met his uncle, Sam Graber, whom he invited to accompany him to the other synagogue; that upon arriving at his destination, he met plaintiff coming out of the building and inquired of him, in a very quiet tone of voice, why he had spoken of his father as he did; that in response he received a "punch" in the jaw from plaintiff, a much larger man than himself, and was knocked down upon the sidewalk; that the force of the blow loosened one of his teeth, so that he was subsequently compelled to have it extracted; and that the only reference he had made to "crook" and "thief" in his words with plaintiff was when he had demanded to know from plaintiff why he had been calling his father those names.

Defendant's uncle, Sam Graber, corroborated him in his version of the occurrence; and the family dentist, Dr. Rich, testified that on the Sunday after the date of the occurrence he had extracted defendant's tooth, and that the "condition he found could have been caused by being struck by someone's fist".

In rebuttal, plaintiff recalled his witness Silverberg, the sexton of his church, who testified that he had not seen Sacks on the day of Yom Kippur; that Sacks had not bought one of the admission tickets which were being sold to persons desiring to enter the building; and that he was certain that Sacks had not been present at the service.

As a matter of chief insistence, plaintiff urges that error was committed in the admission in evidence of defendant's Exhibits 1, 2, and 3, which were records of the Metropolitan Police Department of the City of St. Louis, showing plaintiff's...