Lonergan v. Love

• Citation: 150 S.W.2d 534
• Decision Date: 06 May 1941
• Docket Number: No. 25497.,25497.
• Parties: CURTIS W. LONERGAN, RESPONDENT, v. M.D. LOVE, APPELLANT.
• Court: Court of Appeal of Missouri (US)

150 S.W. 534

CURTIS W. LONERGAN, RESPONDENT, v. M.D. LOVE, APPELLANT.

No. 25497.

St. Louis Court of Appeals, Missouri.

Opinion filed May 6, 1941.

Motion for Rehearing Overruled May 20, 1941.

Appeal from Circuit Court of Pike County. — Hon. Edgar B. Woolfolk, Judge.

AFFIRMED.

May & May for respondent.

Trimble v. Foster, 87 Mo. 49; Brown v. Knapp & Co., 213 Mo. 655, 684; Grimes v. Thorp, 113 Mo. App. 652, 656; Perdue v. Montgomery Ward & Co., 107 S.W. (2d) 14; Crup v. Corley, 95 Mo. App. 640; Johnson v. Busch, 186 Mo. App. 107; Nichols v. Railroad, 232 S.W. 275; Starnes v. Light Co., 22 S.W. (2d) 73, 52 S.W. (2d) 852; Haynes v. Robertson, 190 Mo. App. 163; Koechelen v. Barringer, 19 S.W. (2d) 1033; Prentiss v. Life Ins. Co., 225 S.W. 695; Wetzel v. Wagoner, 41 Mo. App. 509; Minter v. Hdw. Co., 50 Mo. App. 177; Vanloon v. Vanloon, 159 Mo. App. 255; Haynes v. Robertson, 190 Mo. App. 163; Carpenter v. Hamilton, 185 Mo. 603; Anderson v. Shockley, 159 Mo. App. 334; Mock v. Am. Ry. Exp. Co., 296 S.W. 855; Priest v. Central States, 9 S.W. (2d) 543; Boyce v. Wheeler, 197 Mo. App. 295; Callahan v. Ingram, 122 Mo. 320; Neoninger v. Vogt, 88 Mo. 589; Rammel v. Otis, 60 Mo. 365; Haynes v. Robertson, 190 Mo. App. 159.

A.J. Murphy, Jr., Edward A. Glenn and F.D. Wilkins for defendant.

(1) Newell on Slander and Libel (3 Ed.), secs. 597, 609; Finley v. Steele, 159 Mo. 299; Holmes v. Royal Fraternal Union, 222 Mo. 556; Kroger Groc. & Bak. Co. v. Yount, 66 Fed. (2d) 700; Butler v. Freyman, 260 S.W. 523; Tilles v. Publishing Co., 241 Mo. 609; Smith v. Mo. Fid. & Cas. Co., 190 Mo. App. 447; Montgomery Ward & Co. v. Watson, 55 Fed. (2d) 184; Massee v. Williams, 207 Fed. 222; New York & Porto Rico S.S. Co. v. Garcia, 16 Fed. (2d) 734; Waggoner v. Scott, 164 Mo. 289; Garey v. Jackson, 197 Mo. App. 217; State ex rel. Douglas v. Reynolds, 276 Mo. 688, 209 S.W. 100; Lee v. Battery & Supplies Co., 323 Mo. 1204, 1234-1237; Gust v. Montgomery Ward, 80 S.W. (2d) 286, 290-291; Fisher v. Myers, 100 S.W. (2d) 551, 566. (2) Klaber v. C.R.I. & P. Ry. Co., 225 Mo. App. 940, 945; Frazier v. Grab, 183 S.W. 1083. (3) Jno. O'Brien Boiler Works Co. v. Sievert, 256 S.W. 555, 557, 558; State ex rel. v. Ellison, 272 Mo. 571, 583, 584, 585, State ex rel. Insurance Co. v. Trimble, 318 Mo. 173, 180. (4) Lee v. Fuetterer B. & S. Co., 323 Mo. 1204, 1240, and cases cited under point 1.

HUGHES, P.J.

Action for slander. Verdict for plaintiff for $100 actual damages and for $300 punitive damages. Defendant appeals. The amended petition charged that on the 24th day of February, 1939, in Pike County, Missouri, the defendant, willfully, wantonly and maliciously spoke to plaintiff, and of and concerning plaintiff in the presence and hearing of others, certain false, defamatory and slanderous words, as follows: "You stole my corn. You are a thief and a damn thief." Plaintiff prayed for $1000 actual damages and $1000 punitive damages.

The amended answer: (a) General denial; (b) Admitted defendant used some abusive language to the plaintiff on the date charged, but denied he used the language as set out in the petition; denied that whatever language he used on said occasion was used maliciously, or with the intent to injure the plaintiff and denied that he was damaged thereby; (c) Averred that whatever language he used on said occasion was simply language of abuse and was spoken in an outburst of passion and excitement, and was provoked by the plaintiff; and (d) That the occasion was one of qualified or conditional privilege and whatever words he used at said time related to private interests and that the same were made in good faith, without actual malice, and with reasonable or probable grounds for believing them true.

The reply was a general denial.

The parties were farmers living in the same neighborhood. Plaintiff was a man fifty-eight years old and had lived on a farm of 240 acres owned by Dr. D.M. Pearson for thirty-four years as a tenant from year to year on shares; the landlord to have one-half the crops and he the other one-half. The defendant was a man sixty-two years old and had lived on a forty-acre farm belonging to himself and wife for thirty-six years.

On April 11, 1938, Dr. Pearson sold the farm upon which plaintiff was a tenant to the defendant and his wife, and agreed to give defendant full possession on March 1, 1939, and agreed to give defendant possession of the ground upon which any corn or other crops were planted by the tenant (plaintiff) on or before September 15, 1938, and one-half of forty acres located in what is known as Mud Lick Prairie when the deed was signed transferring title to the farm. The purchasers were to have and receive all of the landlord's share of all crops grown on the farm except the wheat crop. They were also to have possession of the land then in wheat as soon as the wheat was harvested, and the right to enter upon the farm to carry on the regular farming of the land and to make repairs. As to the corn grown during the season of 1938 it was agreed between plaintiff and defendant that plaintiff would divide it by the row, taking sixteen rows for his share and leaving sixteen rows as defendant's share. There were certain pumps in use on the farm, some electric fixtures, and a kitchen sink, which plaintiff claimed belonged to him. All of these matters gave rise to friction between plaintiff and defendant during the summer as to their respective rights in the farm.

On February 24, 1939, plaintiff was moving from the farm, with the assistance of a neighbor, Charles Bollomy, who owned a truck. Plaintiff and Bollomy drove to the farm, and reaching the gate that enters to a roadway to the house from the public road, Bollomy stopped the truck on the public road and got out of the same to put chains on his truck. Defendant and his two sons were on the south side of the public road building fence.

Plaintiff testified that defendant tied his team to the fence on the inside of the pasture, about thirty or forty feet from the truck, opened the gate and came out to the truck where he and Bollomy were and without saying one other word, said, "You took sixteen rows of my corn, you stole it. You are a thief and a damned thief." That the words were said in a reasonable tone of voice and not loud. That defendant walked back to where Mr. Bollomy was and said, "I didn't call him a thief, did I?" To which Mr. Bollomy replied, "Yes, you did." That defendant's two sons were 130 yards up the road working on the fence. That the corn had been divided fifty-fifty; that from one field he took the first sixteen rows and the last sixteen rows of corn, but the other field was divided by the load, and the defendant got the first and last load from that field, and that the last sixteen rows which he took was to offset the last load of corn given to the defendant from the other field.

Charles Bollomy testified that he was forty years old and had known plaintiff all of his life, that plaintiff's general reputation as an honest upright citizen was good. On the occasion of the alleged slander he said the first words he heard were that plaintiff asked defendant if he wanted to buy a pump that was laying near there, and defendant told him he did not, that the pump belonged to the farm, and he forbid him from moving the pump, and then one word seemed like it brought on another. That defendant said or claimed that plaintiff misdivided the corn, something to that effect, and plaintiff said he didn't, and defendant said, "You damn liar, you stole my corn," and defendant told him he didn't, and defendant called him a lying, thieving son-of-a-bitch. He just called him a damned thief and he went over it two or three times, calling him a lying, thieving, son-of-a-bitch. Witness said, "I understood him to mean a thief, that's the way I would take it. I was fastening up my chain on the left side. I had fastened the inside first, then I had to fasten it outside, and while I was doing that Mr. Love said to me, `Bollomy, did you understand that I called him a thief?' I said, how could I help hearing it, I was in four or five feet of him." Defendant's two boys were up the road 140 or 150 yards. "I would figure Mr. Love was mad from the tone of his voice. His voice was not loud, just ordinary."

Defendant's testimony was that his two sons, Marion and Kenneth were near the gate, and heard what was said. Kenneth testified that the plaintiff asked his father if he wanted to buy the pumps and his father told him they belonged to the place; that they argued about same, also about a fence and some chicken nests; that both got "very loud and pretty angry at one another." That his father told plaintiff he had been doing him dirty all along, and accused plaintiff of sending him a written notice for damages to a pasture, that plaintiff denied this and defendant called him a liar and a damn liar. That his father told the plaintiff he had taken more corn than he should have, that he took the first sixteen rows and the last sixteen rows of corn, that they continued to argue. That plaintiff said to Charlie Bollomy, "Did you hear what Mr. Love said, he said I stole his corn," and Dad said, "I didn't say you stole it, I said, you took it," and Lonergan said, "I have been waiting for a chance to sue you, and now I am going to do it." Defendant's other son, Marion, gave practically the same testimony as his brother, Kenneth.

The defendant Love testified that when the truck came up to the gate he was repairing fence along the road close to the gate. The public road east and west and divides this farm, the buildings being located on that part of the farm south of the public road. His team was tied to the fence and when he saw the truck approaching he walked up in front of them thinking they might scare at the truck. The plaintiff got out of the truck, came over to the mail box, looked in the same and at the time did not speak to him. That he spoke to plaintiff, remarking...