Lemaster v. Ellis

• Decision Date: 28 July 1913
• Citation: 158 S.W. 904,173 Mo.App. 332
• Parties: NORA LEMASTER, Respondent, v. FRANK ELLIS, Appellant
• Court: Missouri Court of Appeals

158 S.W. 904

173 Mo.App. 332

NORA LEMASTER, Respondent, v. FRANK ELLIS, Appellant

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.

Reversed and remanded.

J. S Davis and I. V. McPherson for appellant.

(1) The court erred in admitting any evidence offered by the plaintiff under her petition for the reason the same stated no cause of action. 13 Ency. Pl. and Pr. 55; Townsend on Slander and Libel, sec. 338; Ukman v. Daily Record Co., 189 Mo. 394; 25 Cyc. 450; Dyer v. Morris, 4 Mo. 214; Fallenstein v. Booth, 13 Mo. 427; Christal v. Craig, 80 Mo. 369; Boyce v Aubuchon, 34 Mo.App. 318; Bundy v. Hart, 46 Mo 462; Powell v. Crawford, 107 Mo. 598. (2) The court erred in refusing the peremptory instruction requested by the defendant at the close of all the evidence, because plaintiff's petition stated no facts sufficient to constitute a cause of action and because the slanderous words charged if they are actionable were not proved to have been uttered by the defendant, heard and understood by those to whom uttered. O'Donnell v. Nee, 86 F. 96; Heller v. Howard, 11 Ill.App. 554; Shinglemeyer v. Wright, 82 N.W. 887; McGeever v. Kennedy, 42 S.W. 114; Walker v. Hoeffner, 54 Mo.App. 554; Clemons v. Maloney, 55 Mo. 354; Lewis v. McDonald, 82 Mo. 579. Uttenberger v. Scharff, 51 Mo.App. 102. (3) Instructions No. I and II were not based upon any evidence and were inconsistent with other instructions, hence erroneously given. Willis v. Heat & Power Co., 111 Mo.App. 580; Stevenson v. Hancock, 72 Mo. 612; Spillane v. Railroad, 111 Mo. 565; Julian v. Kansas City Star, 209 Mo. 76, 79. (4) Instruction No. 4 undertood to broaden the issues beyond the pleadings and was erroneous. Noeninger v. Vought, 88 Mo. 592. (5) The court erred in overruling the defendant's motion for a new trial. Where words are declared on the meaning of which is unambiguous and will not reasonably admit of the slanderous construction placed upon them by the plaintiff their meaning is for the court. Odgers on Libel and Slander (2 Ed.), 94, et seq; Newell on Slander and Libel (2 Ed.), p. 290, sec. 4; Ukman v. Daily Record Co., 189 Mo. 394; Tippens v. State, 43 S.W. 1000; Kenworthy v. Brown, 92 N.Y.S. 34.

McNatt & McNatt for respondent.

(1) The petition was in the usual form, and stated a good cause of action for slander. Vanloon v. Vanloon, 159 Mo.App. 255; McGinnis v. Knapp & Co., 109 Mo. 141; Morris v. Salier, 154 Mo.App. 305; Israel v. Israel, 109 Mo.App. 366; Brown v. Wisnch, 110 Mo.App. 264; Rose v. Thorlborn, 153 Mo.App. 409; Adams v. Harmon, 3 Mo. 124; Moberly v. Preston, 8 Mo. 462; Birch v. Benton, 26 Mo. 161. (2) The court properly refused the peremptory instruction, because the allegations of the petition were sustained by the testimony of witnesses, as well as by the admissions of the defendant. Hauser v. Steigers, 137 Mo.App. 560; Lewis v. McDaniel, 82 Mo. 577. (3) Instructions 1 and 2 were supported by abundant evidence. Vanloon v. Vanloon, 159 Mo. 264; McGinnis v. Knapp, 109 Mo. 141. (4) Instruction 4 does not broaden the issues beyond the pleadings. Cook v. Globe, 227 Mo. 471; Morris v. Salier, 154 Mo.App. 313; McGinnis v. Knapp, 109 Mo. 141; State v. Norton, 89 Me. 290. (5) The court properly overruled the motion for a new trial, for the language used in the pleadings and found by the jury to have been spoken by the defendant, under the instructions constitute a meritorious cause of action. Vanloon v. Vanloon, 159 Mo.App. 264; Brown v. Wintsch, 110 Mo.App. 264; Rose v. Tholburn, 153 Mo.App. 408; Moberly v. Preston, 8 Mo. 462; Hauser v. Steigers, 137 Mo.App. 560.

STURGIS, J. Farrington, J., concurs. Robertson, P. J., dissents.

OPINION

STURGIS, J.

This is a suit for slander. The petition alleges that the plaintiff is an unmarried woman and that she and her married sister and her sister's husband, Logan Baxter, lived with her mother in the country in Lawrence county, Missouri; that in the spring of 1912 this plaintiff was absent from home for a time as a traveling saleslady, and that about the same time her sister's husband departed for the State of Colorado; that the defendant also lived in the same neighborhood and knew that Logan Baxter had gone on a business trip. The petition then proceeds: "Plaintiff further states that the defendant in certain conversations had in the city of Aurora, Missouri, on or about the first day of June, 1912, in the presence and hearing of different persons then and there spoke and published of and concerning the said plaintiff the following false, malicious and defamatory words, to-wit: 'Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone and are now living together in Pueblo.' That the said defendant at the time said false and malicious words were spoken, knew that the plaintiff was an unmarried woman and that the said Logan Baxter was a married man, and the husband of her said sister, as did all the persons in whose presence and hearing said words were spoken, and that the said words and sentences so spoken by the said defendant were intended to mean and did mean and were so understood by all the parties who heard them, to impute and charge the plaintiff with having committed acts of unchastity and fornication and unlawful intimacy with the said Logan Baxter, husband of the plaintiff's sister aforesaid."

The petition also in a similar way alleges the utterance of other defamatory words, but, as it is conceded and the court so instructed the jury that there was no proof of the speaking of such other words, they need not be further noticed. The petition asks for, and the jury awarded, both compensatory and punitive damages.

The answer is a general denial with an averment that "what the defendant did say in the conversations attempted to be set out was that the plaintiff and the said Logan Baxter had each left home together and come to Aurora; that the said Logan Baxter had taken the Frisco train to Springfield and the plaintiff had taken the White river railroad to Crane; that the same was said in good faith, without malice on the part of the defendant who then and there honestly believed the same was true; that in the sense in which the same was uttered the said conversations and statements and words used by the defendant were true."

The answer also avers that if plaintiff's reputation has been injured that it was the result of her own conduct in frequently taking buggy rides with her brother-in-law to church and other places, and being with him frequently and that his conduct "towards her, and her manner, demeanor and conduct with and towards him was such that it caused comment and general conversation in the neighborhood unfavorable to the plaintiff."

The defendant challenges the sufficiency of the petition in this case on the ground that the words charged to have been uttered are not slanderous per se and are so plain and unambiguous as to be incapable of being enlarged by the averments made and by innuendo. In making this contention the defendant seems to have in mind the alleged slanderous words proven to have been uttered rather than those charged in the petition. It is obvious that the sufficiency of the petition is not to be judged by the sufficiency of the allegations therein which are actually proven. Had the plaintiff proven in this case the speaking of all the words charged in the petition, it would be dangerously near a case of slander per se. Certainly it would have made a case for the jury. It is well settled that even where the words spoken are not slanderous per se, that is, do not in and of themselves carry poison, they are to be considered by the jury and their meaning determined in the light of the extrinsic facts and circumstances under which they are spoken. If, in the light of all the facts and circumstances leading up to and surrounding the speaking of the words, they are reasonably capable of imputing and being interpreted as containing the slanderous meaning the question is for the jury. [Ukman v. Daily Record Co., 189 Mo. 378, 394, 88 S.W. 60; McGinnis v. George Knapp & Co., 109 Mo. 131, 139, 18 S.W. 1134; Vanloon v. Vanloon, 159 Mo.App. 255, 265, 140 S.W. 631.] The more serious question to be determined here is whether the words proven, when taken in connection with the occasion on which they were spoken and the surrounding facts, are sufficient to take the case to the jury.

This case was tried in a somewhat peculiar way. It is shown that whatever was said by defendant that is claimed to be slanderous was said to one Wagnant, another farmer and neighbor of both plaintiff and defendant, and to him alone. Plaintiff testified that she did not claim that anyone else heard or could have heard the slanderous conversation. The plaintiff did not call Wagnant, the sole hearer of the defamatory words if any such were spoken by defendant, as a witness to make out her case. She made her case by her own evidence and that of her sister by testifying what the defendant had admitted to them that he had said to Wagnant on the occasion in question. Plaintiff and her sister, Mrs Baxter, testified that before bringing this suit they went to see defendant and this is what occurred: "I called him out to the fence and he didn't seem to know who I was and I told him and my sister introduced herself as Mrs. Baxter, told him she was Baxter's wife, and I told him what I was there after, 'that I understood that he had said to some party or asked the party if he had heard that Logan Baxter and myself had run away,' and said to him that 'I understood that he had said that we were gone and were now in Pueblo together,' and upon my statement to him he said 'Yes.' I...