Jones v. Banner

• Decision Date: 05 May 1913
• Citation: 157 S.W. 967,172 Mo.App. 132
• Parties: FLORENCE JENNIE JONES, Respondent, v. JOHN C. BANNER, Appellant
• Court: Kansas Court of Appeals

157 S.W. 967

172 Mo.App. 132

FLORENCE JENNIE JONES, Respondent, v. JOHN C. BANNER, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1913

Appeal from Putnam Circuit Court.--Hon. G. W. Wanamaker, Judge.

Judgment affirmed.

E. M Harber, J. W. Clapp and D. M. Wilson for appellant.

(1) Words not in themselves actionable cannot be rendered so by an innuendo without a prefatory averment of extrinsic facts which makes them slanderous.Townsend on Sl. & Lib.(4 Ed.) 566;Church v. Bridgman,6 Mo. 196;McManus v Jackson,28 Mo. 56;Powell v. Crawford,107 Mo 595;Cook v. Pulitzer Pub. Co.,241 Mo. 326.(2) An innuendo may not introduce new matter or enlarge the natural meaning of words.It must not put upon the defendant's words a construction which they will not bear.It cannot alter or extend the sense of the words.13 Am. & Eng. Ency. of Law (1 Ed.), 465;Ukman v. Daily Record Co.,189 Mo. 378;Legg v. Dunleavey,80 Mo. 558.(3) The demurrer to the evidence should have been sustained and the jury instructed to find for the defendant.Odgers on Lib. & Sl.(2 Ed.), 94 et seq.; Newell on Sl. & Lib.(2 Ed.), 290, sec. 4;Ukman v. Daily Record Co., supra;King v. Hartwig,151 Mo.App. 92;Van Loon v. Van Loon,159 Mo.App. 255.(4) The words alleged to have been spoken are not ambiguous, and have a clear, popular meaning, and a witness who heard the words cannot testify to what he understood them to mean.Callahan v. Ingram,122 Mo. 355;Julian v. Star Co.,209 Mo. 35;Branch v. Knapp & Co.,222 Mo. 580.(5)The court erred in declaring the law in instructions 4, 5, 8 and 9 given for plaintiff, and in refusing to give defendant's instruction "A."Sec. 5424, R. S. 1909;Pollard v. Lyon,91 U.S. 225;Lehman v. Medack, 152 S.W. 438.

Smoot & Cooley and J. W. Magee for respondent.

(1) The petition states a good cause of action for slander and plaintiff did not demur thereto, and under the evidence the case was properly submitted to the jury.Van Loon v. Van Loon,159 Mo.App. 255;Julian v. Kansas City Star Co.,209 Mo. 35;Lewis v. Humphreys,64 Mo.App. 466;Walker v. Hoeffner,54 Mo.App. 554.(2) All the facts and circumstances surrounding the utterance of the words charged may properly be proved and taken into consideration in determining what was meant and understood to be meant; and where the words themselves might be susceptible of different meaning, witnesses may properly be per mitted to testify to what they understood the words to mean.Wagner v. Printing Co.,45 Mo.App. 13;Morris v. Sailer,154 Mo.App. 305;McGinnis v. Knapp & Co., 109 Mo. 131.

OPINION

TRIMBLE, J.

Respondent, a young woman twenty-five years of age, sued appellant on a petition in four counts, the first of which alleged indecent, lascivious assault, the second and third charged libel, and the fourth slander.

At the close of plaintiff's evidence she dismissed the second and third counts charging libel.And at the close of all the evidence a demurrer to the fourth count was overruled and the case submitted to the jury on the first and fourth counts charging assaults and slander respectively.The jury found for appellant on the assault charge, but returned a verdict against him on the slander count assessing compensatory damages at $ 500 and punitive damages at $ 250.After an unsuccessful motion for new trial, he has brought the case here on appeal.

The circumstances under which the alleged slanderous words are charged to have been spoken are these:

Appellant was a loan agent in Unionville, having his office up stairs directly over the front part of the postoffice on the south side of the public square.In January, 1910, a man named Mills raised a difficulty in appellant's office, choked a young lady therein, got into a personal encounter with appellant and finally drew a pistol and fired, the ball going through the floor into the post office below.Appellant applied to J. W. Magee, then prosecuting attorney of Putnam county, to prosecute Mills, but Magee refused to do so.This raised a controversy between Magee, the prosecutor, and appellant which finally resulted in Magee publishing an article in one of the Unionville papers, in defense of his action in refusing to prosecute Mills, to the effect that Mills was not guilty.

On February 14, 1910, Magee, having secured two unsigned letters alleged to have been written by appellant to plaintiff, filed an information against appellant charging him with blackmail, that is, with attempting to extort money from plaintiff by means of threats made in said letters.(These letters were the same used as a basis for the charges of libel contained in the second and third counts which were dismissed as hereinabove stated.)Appellant was never brought to trial on this information; the case, after continuances for several terms, being finally abandoned and dismissed.Shortly after this information was filed, however, and while it was pending, Magee became a candidate for renomination as prosecuting attorney at the August primary.Appellant, belonging to the same political party as Magee, vigorously opposed the latter's candidacy, giving as his reason Magee's refusal to prosecute Mills who had raised a disturbance in appellant's office.Meetings were held at different places over the county and at some of these meetings both Magee and appellant were present and spoke to the voters.At one of these meetings, held about the middle of June at St. Johns, a small town in the west part of the county, Magee in his speech to the voters referred to appellant's opposition to his candidacy and mentioned the information for blackmail he had filed against appellant, and prophesied that he would send appellant to the penitentiary.Appellant Banner spoke in reply, and it is in this speech he is alleged to have used the words set out in the fourth count.They are as follows:

"I saw her drinking beer with two men about midnight one night.You see what kind of a low, nasty character she has.I was looking through a window at the time I saw her."

The colloquium set out that the two letters above referred to were written and published by defendant; that prior to the speaking of the words, an information had been filed charging defendant with an attempt to extort money from plaintiff by means of the threats contained in the letters, and that the words were spoken while the criminal charge was pending, and while the fact of the filing of the information and the reputation of the plaintiff for virtue and chastity were being discussed.There was also an innuendo averring that by the words spoken the defendant meant to charge the plaintiff with being guilty of fornication and illicit sexual commerce with men, and with being a woman of bad reputation for virtue and chastity.

The suit was brought November 2, 1910, by respondent through her attorney, Magee, who was defeated for renomination in the primary.

The answer to the fourth count denied that the defendant spoke the words or the substance of the words charged, and alleged that what he did say was this: "I saw her in a building through a window with a couple of young men drinking out of a bottle, and you can see or judge what kind of a character a young lady has who would do that."

The answer further alleged that the defendant was a voter of Putnam county at the primary at which Magee was a candidate for renomination, and was opposing his candidacy; that Magee, in order to render defendant's opposition to him futile, stated at the St. Johns' political meeting that he had filed a criminal charge against defendant for attempted blackmail of the plaintiff and would send defendant to the penitentiary; that defendant being called upon by voters to reply spoke the words last above set out.

No special damages were pleaded or proved.In slander the rule is not the same as in libel.The rule in slander is that oral words tending to disgrace a person, and not imputing a crime, are not actionable without proof of special damages.[18 Am. & Eng. Ency. of Law (2 Ed.), pp. 863, and 906;Nelson v. Musgrave,10 Mo. 648;Bundy v. Hart,46 Mo. 460, l. c. 462;Birch v. Benton,26 Mo. 153, l. c. 160.]This rule has been modified in our State by section 5424,Revised Statutes 1909, making it actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery.So that in this case, as special damages are not pleaded nor proved, the words charged are not actionable unless they can be said to contain a charge of unchastity against plaintiff.

Are the words alleged to have been uttered capable of being interpreted as containing such a charge?Appellant urges that they are not.However, reprehensible the drinking of beer may appear to many persons, and however blameworthy such an act on the part of a young lady in the presence of young men may in fact be, yet we cannot shut our eyes to the fact that many women will drink a glass of beer in the presence of and with members of the opposite sex, and yet no thought of unchastity will occur or arise therefrom.Undoubtedly it is not a praiseworthy custom and is a dangerous practice tending to lead young persons into habits of intemperance to the marring of their lives and the blasting of many fond hopes bound up in them.But such act does not necessarily imply that one who is seen to take a glass of beer, even at midnight and in company with men, is guilty of having sexual intercourse with them.And if drinking beer with men at night were all that was said, it would readily appear that the words were not and could not be made actionable.But the trouble is, this is not all that was said.Defendant himself broadened the effect of this...