Krup v. Corley

• Decision Date: 22 July 1902
• Parties: KRUP v. CORLEY.
• Court: Missouri Court of Appeals

69 S.W. 609

95 Mo. A. 640

KRUP v. CORLEY.

Court of Appeals at St. Louis, Missouri.

July 22, 1902.

SLANDER — EVIDENCE — PLEADING — FORGERY — INTENT TO INJURE — DAMAGES — REBUTTAL EVIDENCE — INSTRUCTIONS — APPEAL.

1. In an action for damages for slander it is improper to admit evidence of independent slanderous charges by defendant against plaintiff. But evidence of repetitions of the slander which forms the subject of the suit is admissible as showing malice.

2. Oral language imputing that one has sworn falsely in a court of justice is actionable per se, as is also a charge that a person is a thief. "He forged my name to one of his rent receipts" is not language defamatory in itself.

3. Slander is a statutory misdemeanor in Missouri, but as a civil injury slander is governed by principles of the common law.

4. An intent to injure or defraud is an essential element of forgery of a writing as a crime. It is also essential at common law.

5. The Code (Rev. St. 1899, § 635) provides a short form of innuendo in actions of slander or libel, but it does not dispense with the necessity of a statement of sufficient facts by way of inducement to show that words charged to be defamatory per se are spoken with a meaning imputing a crime.

6. The awarding of punitive damages for slander is discretionary with the jury, not obligatory on them.

7. The statute of jeofails (Rev. St. 1899, § 672) does not cure an instruction which omits to call for a finding of facts necessary to put an actionable meaning upon terms otherwise not actionable per se.

8. Where evidence is offered in rebuttal to contradict statements of witnesses for the defendant, it is essential that a proper foundation should be laid, by identification of the time and place of the supposed conversation, to warrant the admission of impeaching evidence of different statements.

9. Parties are bound on appeal by the positions they voluntarily assume in the trial court.

10. The order of proof in the trial of an action at law is to be governed by a sound judicial discretion.

11. A question which assumes the existence of a fact which there is no evidence before the court tending to prove should not be permitted against the objection of the adverse party.

12. Error is not to be assumed to be harmless; those who claim it to be so must demonstrate the proposition.

13. Where a charge of forgery is the gist of an action for damages for slander, it is improper to submit to the jury as a question of fact what constitutes a charge of forgery without defining the elements of the crime.

14. It is improper to submit to the jury the question of what facts are material in a prosecution for perjury.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; W. B. Douglas, Judge.

Action by George Krup against Patrick Corley. Judgment for plaintiff. Defendant appeals. Reversed.

Lambert E. Walther, for appellant. Wm. D. Hudson, for respondent.

BARCLAY, J.

This action is for slander, and rests upon three charges or causes of action in the plaintiff's petition, all of which were answered by a general denial of defendant. The words complained of as injurious in the several counts were these: First count: "He (meaning plaintiff) is a damned thief." Second count: "He (meaning plaintiff) forged my name to one of his rent receipts." Third county: "That Hollander (meaning plaintiff) swore false on the witness stand." The claim for compensation on each count was for $10,000, of which one-half was alleged to be actual, and the rest was demanded as punitive, damages.

Little attention need be given to the third count, for the trial court sustained an objection to its sufficiency. No steps were taken toward reviewing that ruling.

There was a trial on the other two counts before the court and a jury, resulting in a finding for plaintiff on each count for $200 actual, and $50 punitive, damages, total $500, for which amount judgment was duly entered. Defendant took an appeal therefrom, after the usual motions and exceptions.

To make clear some of the issues involved in the appeal, we present the material parts of the two counts in the petition on which the case went to trial (omitting merely formal features):

"Plaintiff for his cause of action states that on or about the 5th day of July, 1900, in the city of St. Louis and state of Missouri, and in the presence and hearing of divers persons, the defendant falsely, wantonly, and maliciously spoke and published of and concerning the plaintiff the following false, malicious, and defamatory words, to wit: `He (meaning plaintiff) is a damned thief;' whereby this plaintiff has been greatly injured in his feelings, good name, and reputation, and to his damage in the sum of ten thousand dollars ($10,000), in actual damages in the sum of five thousand dollars ($5,000), and in exemplary or punitive damages in the sum of five thousand dollars ($5,000). Wherefore plaintiff asks judgment," etc.

"Plaintiff for his second cause of action states that on or about the 5th day of July, 1900, in the city of St. Louis and state of Missouri, and in the presence and hearing of divers persons, the defendant falsely, wantonly, and maliciously spoke and published of and concerning the plaintiff the following false, malicious, and defamatory words, to-wit: `He (meaning plaintiff) forged my name to one of his rent receipts;' whereby this plaintiff has been greatly injured in his feelings, good name, and reputation, and to his damage in the sum of ten thousand dollars ($10,000), in actual damages in the sum of five thousand dollars ($5,000), and in exemplary or punitive damages in the sum of five thousand dollars ($5,000). Wherefore plaintiff asks judgment," etc.

The facts will be stated along with our rulings, so far as necessary to elucidate the latter.

The instructions given by the learned trial judge at the instance of plaintiff or of his own motion were as follows:

"(1) The jury are instructed that in making their verdict they may take into consideration all the facts and circumstances detailed by the witnesses, and, if the jury find for the plaintiff, in estimating the damages which they think plaintiff has sustained they may take into consideration and allow the plaintiff for the mortification to his feelings suffered from the acts of defendant complained of, and may add thereto, as punitive damages, such amount as will adequately punish the defendant for such acts, and serve as a warning to prevent others from being guilty of like acts.

"(2) The jury are instructed that the words, `He is a damned thief,' are slanderous in themselves, and that the law implies malice in the speaking of said words, and that it is not necessary to prove any express malice in order to warrant a verdict for plaintiff on the first count of plaintiff's petition.

"(3) If the jury believe from the evidence that on or about the 5th day of July, 1900, the defendant spoke of and concerning the plaintiff in the presence and hearing of one or more persons the following words, `He forged my name to one of his rent receipts,' or enough of said words to constitute the charges of forgery against the plaintiff, then the jury must find for the plaintiff on the second count of the plaintiff's petition in an amount not to exceed the sum claimed in said count.

"(4) The jury are instructed that malice does not consist alone in personal spite or ill will, but it exists in law, whenever a wrongful act is intentionally done without just cause or excuse."

"(9) The jury are instructed that in making up their verdict they must state separately their finding as to each of the two counts in plaintiff's petition, and if they find for the plaintiff they must state separately their finding as to actual and punitive damages on each of said counts. The third count in plaintiff's petition is withdrawn from the consideration of the jury.

"(10) The court instructs the jury that nine of your number have power to render a verdict in this case, and that when nine jurors agree upon a verdict your foreman should sign it, and you return it into court as the verdict of the jury.

"(11) The jury are instructed that if they believe from the evidence that on or about the 5th day of July, 1900, the defendant, in the presence and hearing of one or more persons, used the following language of and concerning plaintiff, `He is a damned thief,' and if they further believe that said language was false and untrue, then they should find for the plaintiff on the first count in plaintiff's petition, unless they further believe that such words were used merely as terms of abuse and reproach, and that the hearer could not reasonably otherwise understand them."

At defendant's request the following instructions were given:

"(5) The jury are the exclusive judges of the credit and weight to be given to the testimony of the different witnesses, and if they find and believe that any witness willfully testified falsely to any material facts they are at liberty to reject the whole or any part of such witness' testimony.

"(6) The jury are instructed that the burden of proving the words charged as slanderous is upon the plaintiff; that is, the plaintiff must prove to the satisfaction of the jury, by a preponderance of the evidence, that the defendant uttered the words charged as slanderous, or enough of said words to constitute substantially the same charges.

"(7) By the word `preponderance,' as used in these instructions, is meant a greater weight of evidence, or evidence which is more credible and convincing to the mind.

"(8) The court instructs the jury that even though they may believe from the evidence that defendant spoke of and concerning plaintiff the words charged in the first count of plaintiff's petition, namely, `He (meaning plaintiff) is a damned thief,' yet, if they also believe from the evidence that said words were spoken and understood as merely charging that plaintiff had attempted to move into a...