Kirk v. Ebenhoch

• Decision Date: 03 December 1945
• Docket Number: 39530
• Parties: Maybelle Kirk, Appellant, v. William Ebenhoch and Adolph Ebenhoch
• Court: Missouri Supreme Court

191 S.W.2d 643

354 Mo. 762

Maybelle Kirk, Appellant, v. William Ebenhoch and Adolph Ebenhoch

No. 39530

Supreme Court of Missouri

December 3, 1945

Rehearing Denied January 7, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. E. M Ruddy, Judge.

Reversed and remanded (with directions).

Harry C. Avery and John E. Corvey for appellant.

(1) To charge a virtuous, upright married woman with having soldiers running in and out of her house, day and night, or to interpret and supplement these words with the charge that she was running a whore house, amounts to a charge that she is an immoral woman and is actionable. The court therefore erred in sustaining a demurrer to plaintiff's petition and entering judgment of dismissal against her. Nicholson v Rogers, 129 Mo. 136, 31 S.W. 260, 90 A.L.R. 1177 n; McCollum v. Smith, 199 S.W. 271; Jones v. Banner, 172 Mo.App. 132, 157 S.W. 967; Crandall v. Greves, 181 Mo.App. 235, 168 S.W. 264; Van Loon v. Van Loon, 159 Mo.App. 255, 140 S.W. 631; Overton v. White, 117 Mo.App. 576, 93 S.W. 363; 11 A.L.R., p. 672; 36 C.J., pp. 1176, 1179, secs. 62, 67. (2) Plaintiff's first amended petition was not before the court for comparison with her second amended petition, not having been offered in evidence, and therefore the court erred in sustaining the demurrer on the ground designated. New First Natl. Bank v. Rhodes Produce Co., 37 S.W.2d 986; Id., 58 S.W.2d 742; Beattie Mfg. Co. v. Geradie, 166 Mo. 142, 65 S.W. 1035. (3) The meaning of the spoken words was at least a question for the jury as to whether they constitute slander. Lemaster v. Ellis, 158 S.W. 904, 173 Mo.App. 332.

Albert E. Hausman for respondents.

(1) To charge a woman with "running a whore house" does not charge her with the commission of either fornication or adultery. Rebecca Dyer v. William Morris, 4 Mo. 214; State v. Joseph Boos, 66 Mo.App. 537. (2) The meaning of the phrase "running a whore house" is definite. It means operating a house wherein women are kept for purposes of illicit sexual intercourse. Because the phrase is not ambiguous, its meaning cannot be changed, or enlarged by any prefatory allegations or matter of inducement. Therefore no allegation in the petition can be used to change or enlarge its meaning in order to state a cause of action against defendants. The phrase does not charge plaintiff with adultery or fornication. State of Mo. v. Boos, 66 Mo.App. 537; Curry v. Collins, 37 Mo. 324; Dyer v. Morris, 4 Mo. 214; McManus v. Jackson, 28 Mo. 56; Wood v. Hilbisch, 23 Mo.App. 389; Boyce v. Aubuchon, 34 Mo.App. 315; Brundy v. Hart, 46 Mo. 460. (3) The case of Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260, cited by appellant, is not to be followed, because it was decided upon the erroneous assumption (not challenged by defendant in that case) that the charge of keeping a whore house is a charge of an indictable offense punishable primarily by imprisonment, when such is not the law (see Sec. 4681, R.S. 1939). (4) Words spoken are not actionable per se unless: (a) they charge the commission of a crime punishable primarily by imprisonment; (b) charge the plaintiff with fornication or adultery; (e) impute to plaintiff a loathsome disease which will exclude him from society; (d) charge unfitness for public office; (e) make such charge as will prejudice one in his business or profession. All other words spoken are actionable only when untrue and when they directly cause pecuniary loss to plaintiff. Boyce v. Wheeler, 197 Mo.App. 295, 195 S.W. 84; Birch v. Benton, 26 Mo. 153. (5) Special damages in actions for slander are those pecuniary losses directly caused by the false statement. Mental suffering, humiliation, embarrassment, mortification, loss of reputation, shame or distress of body and mind, are not special damages. There must be loss to one's property or estate. Beach v. Ranney, 2 Hill, 309; Windish v. Bacon, 53 S.W. 520; Walker v. Tucker, 295 S.W. 138; Woodbury v. Thompson, 3 N.H. 194; Palmer v. Solmes, 30 Upper Canada Common Pleas 48. (6) When words of themselves do not charge a crime, indictable and punishable by imprisonment, they can only be made actionable by pleading and proving extraneous facts which show that the words as used do actually charge the commission of a crime; not that the witness believes they impute the commission of a crime. McKim v. Moore, 291 Mo. 697.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover $ 15,000 for alleged slander demurrer to the second amended petition was sustained, cause dismissed, and plaintiff appealed.

Plaintiff's original petition was filed May 8, 1943. A motion to strike a part of this petition was sustained on May 9, 1944. June 10, 1944, plaintiff filed a "first amended petition." June 14, 1944, a motion was filed to strike such petition. June 16, 1944, defendants withdrew the motion to strike and filed a demurrer instead. June 30, 1944, the demurrer was sustained and on July 24, 1944, a second amended petition was filed. Demurrer was again filed and sustained. The second amended petition is the one here.

It is alleged in the petition here that in 1943, plaintiff, her husband, her stepdaughter, and the stepdaughter's family resided in defendants' house in St. Louis; that the Hensons, husband and wife, also resided in plaintiff's home, and that Mrs. Henson's hair was red and that defendants, in the alleged slander, referred to Mrs. Henson as the redhead. It is further alleged "that on or about April 8, 1943, the defendants came to the aforesaid home of plaintiff and while in plaintiff's home and in the presence of plaintiff, her husband and stepdaughter, falsely and maliciously spoke and published of and concerning plaintiff certain false, defamatory and slanderous words charging that plaintiff was guilty of adultery as follows: 'These women and the redhead have soldiers running in and out day and night. We are not going to have that going on in our house.'

"That plaintiff's husband, upon hearing said words spoken by defendants, immediately demanded of and asked defendants if by such words they intended to mean, and did mean, his wife, plaintiff herein, and his daughter were running a whore house. Whereupon defendants replied, 'That is what the neighbors tell us.'

"Plaintiff further states that since herself, her stepdaughter, and the redheaded Mrs. Henson were the only women occupying, or who had occupied the premises at the time referred to by defendants, all of which was well known to defendants, that defendants intended to mean, and did mean, by the aforesaid words, language and remarks and were so understood by those who heard the said remarks, that plaintiff was guilty of adultery and was having immoral relations with soldiers, who, defendants asserted, were running in and out of the home of plaintiff day and night.

"Plaintiff further states that by the language hereinafter referred to, and spoken by defendants, in connection with the fact only the three women, including plaintiff, were occupying, or had occupied the said home, all of which was well known to defendants, by use of the following language on or about April 23, 1943, defendants intended to mean, and did mean plaintiff was guilty of adultery and was having immoral relations with men, and were so understood by those present who heard said words spoken by defendants, said language so spoken by defendants being as follows, to wit: 'We did not accuse your daughter of running a whore house, but only your wife and the redhead.'

"That said words so uttered by defendants, on or about April 23, 1943, were uttered and published in plaintiff's home, aforesaid, in the presence of plaintiff's husband."

It appears in a memorandum filed by the trial judge who ruled the present petition that it is "substantially the same in its allegations", as the first amended petition to which his predecessor sustained a demurrer, and the memorandum says that "it therefore follows that the demurrer to the second amended petition must be and is hereby sustained." Judge Koerner, who ruled the first amended petition, also filed a memorandum and as we understand, sustained the demurrer to that petition on the theory that defendants, by the alleged slanderous words, only charged plaintiff with "running a whore house."

If such is all that is imputed by the words used by defendants, then the demurrer was properly sustained because such offense is punishable only by a fine. See Sec. 4681, R.S. 1939. With the exception of defamatory words touching one's fitness for or integrity in office or which prejudice one in his trade profession or business, spoken words are actionable without proof of special damages only when they falsely impute (1) the commission of a crime punishable by imprisonment; (2) or falsely impute a loathsome, contagious disease such as would tend to exclude one from society; (3) or falsely impute unchastity. Boyce v. Wheeler et al., 197 Mo.App. 295, 195 S.W. 84, l.c. 87; Tincher v. National Life & Acc. Ins. Co., 235 Mo.App. 663, 146 S.W.2d 663. And it is not necessary that any particular words be used to denote the crime, the contagious disease or unchastity. Hauser v. Steigers, 137 Mo.App. 560, 119 S.W. 52; Boyce v. Wheeler et al., supra. We might here make reference to Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260. In that case the words were, "He is keeping a whore house", and there was no special damage shown. It was held that such words were actionable per se. Such ruling, however, is out of line as the keeping of a bawdy house, as appears, supra, is punishable by fine only, and such was the punishment in 1895, at the time of the Nicholson case. See Sec. 3811, R.S. 1889. The point apparently was not raised in the Nicholson ...