Klaber v. C., R.I. & Pac. Ry. Co.

• Decision Date: 01 December 1930
• Docket Number: No. 16388.,16388.
• Citation: 33 S.W.2d 149
• Court: Missouri Court of Appeals
• Parties: FRED W. KLABER, TRUSTEE, ETC., DEFENDANT IN ERROR, v. CHICAGO ROCK ISLAND & PACIFIC RAILWAY Co., PLAINTIFF IN ERROR.

33 S.W.2d 149

FRED W. KLABER, TRUSTEE, ETC., DEFENDANT IN ERROR, v. CHICAGO ROCK ISLAND & PACIFIC RAILWAY Co., PLAINTIFF IN ERROR.

No. 16388.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Error to Circuit Court of Grundy County. — Hon. L.B. Woods, Judge.

REVERSED AND REMANDED.

E.M. Harber, A.G. Knight, Pross T. Cross and Gerald Cross for defendant in error.

Luther Burns, Henry S. Conrad, L.E. Durham and Hale Houts for plaintiff in error.

CAMPBELL, C.

On May 4, 1926, James R. Kurfman instituted an action against the Chicago, Rock Island & Pacific Railway Company in the circuit court of Grundy county, Missouri.

The petition is in three counts. At the close of the plaintiff's evidence the first and third counts of said petition were dismissed and they therefore pass out of the case.

In the second count of the petition it is averred that the plaintiff therein was thirty-three years of age, married, having a wife and two girl children; that he had always conducted himself as an honest and upright citizen; that he had served as a United States soldier in the World War and received an honorable discharge; that on the 22nd day of October, 1924, in DeKalb county, Missouri, the said railway company, by and through its officer and agent, J.S. Caldwell, while he was in the line of, and in discharge of his duty and in the course of his employment and in the presence and hearing of four persons named and divers other persons, wilfully, wantonly, maliciously and falsely spoke to and concerning plaintiff certain false and defamatory words as follows:

"Kurfman you swore to a lie on the witness stand" (Kurfman meaning this plaintiff and said statement referring to plaintiff's evidence while, and as a witness in said cause). "Kurfman (meaning this plaintiff) swore to a lie and committed perjury while on the witness stand and I want to prove by you that he did lie on the stand." "Kurfman (meaning plaintiff) committed perjury while on the witness stand to-day and I want to prove by you that he did commit perjury on that stand." "Kurfman (meaning plaintiff) you committed perjury while on the witness stand to-day and unless you go back on the stand and acknowledge you lied and perjured yourself, I will see that you lose your job and I will have you black listed so that you can never get a job on any railroad in this part of the country." "Kurfman (meaning plaintiff) you lied and perjured yourself on the witness stand today and if you don't go back on the stand and clear it up, the Rock Island will see that you lose your job" (meaning by the term Rock Island, the defendant Railway Company, by the term job, meaning plaintiff's position as section foreman, of which he then was for the Chicago, Burlington & Quincy Railroad Company). "Kurfman, you lied on the witness stand and committed perjury, but it ain't too late yet to save yourself from being fired and if you will go back on the stand and help us (meaning the defendant, railway company) out in this case, we will protect you and see that everything is all right, and if you don't do this you will lose your job sure and probably go to the penitentiary." "Kurfman (meaning plaintiff) committed perjury in this case while on the witness stand in this case and his soul is black as hell with perjury." "Kurfman (meaning plaintiff), committed perjury on the witness stand in this case and he is so low and contemptibly vile that all men should refuse to associate with him or have anything to do with him." "Kurfman (meaning plaintiff) committed perjury in this case while on the stand, and he is so low that I will not call him a human being." "Kurfman (meaning plaintiff) perjured himself in this case (meaning while on the witness stand in case aforesaid), and he is worse than a thief." "Kurfman perjured himself when he swore on the stand that Smith was struck seventy-five feet north of the crossing and we want to show by you and the other boys that Kurfman did lie on the stand." "We want to show by you that Smith was struck seven rail lengths north of the crossing, and that Kurfman (meaning plaintiff) committed perjury when he (Kurfman) swore he was struck about seventy-five feet north of the crossing."

It is also averred that Kurfman had been duly sworn and testified under oath as a witness in a trial in the circuit court of DeKalb county, Missouri, on or about the 22nd day of October, 1924, wherein Nellie Smith, administratrix of her deceased husband, was plaintiff and the Chicago, Burlington & Quincy Railroad Company was defendant, and that by reason and on account of the foregoing false and slanderous words he has been injured in his good name and reputation and brought into public reproach and contempt and caused to suffer mortification, embarrassment and shame, for which he prayed a recovery of both actual and punitive damage.

The answer to said count is a general denial and an allegation, by way of mitigation, to the effect that plaintiff, before the trial of the Nellie Smith case, had made and signed a written statement at variance with the testimony he gave in said cause; that defendant was, and still is defending the Nellie M. Smith suit and liable to the Chicago, Burlington & Quincy Railroad Company for any judgment therein which may become final against it; that plaintiff in testifying at said trial, and thereafter by deposition, admitted he had given said written statement to defendant and the only excuse he gave for testifying contrary to said written statement was that the same was not made under oath or sworn to by him.

The jury returned a verdict in favor of the plaintiff, assessing the actual damage at one thousand dollars and punitive damage at the sum of one thousand dollars.

Motion for new trial was filed, overruled, and appeal granted to the defendant from said judgment. That appeal was dismissed in this court on October 3, 1927. Thereafter the said defendant sued out a writ of error in this court to review the judgment and proceedings in the suit so brought by the said James R. Kurfman.

After return to the writ of error, suggestions were filed in this court to the effect that James R. Kurfman had been convicted of a felony and was then undergoing sentence in the State Penitentiary of Missouri, and asking that a trustee be appointed for him.

Thereupon Fred W. Klaber was appointed as trustee and, as such, entered his appearance in this court and the cause has been revived in his name as trustee for the said James R. Kurfman, a convict as defendant in error.

Plaintiff in error does not, in this court, claim that the conviction and imprisonment of Kurfman should in any way influence the disposition of this cause.

Counsel for plaintiff in error, with commendable frankness, in their brief state it is to be conceded that plaintiff's evidence was sufficient to make a prima-facie case. That admission means it was proper for the court to submit the case to the jury. We therefore deem it unnecessary to make an extended statement of the evidence. Plaintiff testified that after he had given evidence as a witness in the Nellie M. Smith case Mr. Caldwell, claims attorney for the plaintiff in error, came to him in the court house, placed his hand on his shoulder and said, "Kurfman, you swore to a lie on the witness stand. Kurfman you swore to a lie and committed perjury on the witness stand today and if you don't go back on the witness stand and help us and protect us, you will probably lose your job. Kurfman, you lied and perjured yourself on the witness stand and if you don't go back and clear it up the Rock Island will see that you lose your job." "If you don't do this you will lose your job and probably go to the penitentiary." He further testified that he had signed the written statement referred to in the answer but that he had never read he statement; that he did not know at the time he signed the statement that it contained a recitation to the effect that he had heard the engine "blow;" that said statement was prepared by Caldwell who showed him where to sign it, and then said "sign here;" saying also "those statements had nothing to do with the case, in case it goes to trial." At this time he was section foreman for the Chicago, Burlington & Quincy Railroad Company and was discharged eight days later. Nellie Smith, Fred Hall and George Carter testified in corroboration of the evidence of Kurfman relative to the language used by Caldwell.

Caldwell, called as a witness, denied having made any of the statements attributed to him by the plaintiff, and, in this, he was corroborated by defendant's witness Cotter.

Error is assigned because the court failed to direct a verdict for the defendant at the close of plaintiff's evidence and again at the close of all the evidence. Inasmuch as it is conceded that plaintiff made a prima-facie case, said assignments need no further attention.

The third assignment of error is to the effect that the court erred in giving each of the instructions requested by plaintiff. It is argued that instruction Number 2 authorized a recovery...