McDonald v. F. W. Woolworth Co.

• Decision Date: 19 June 1939
• Docket Number: No. 19408.,19408.
• Citation: 135 S.W.2d 359
• Parties: McDONALD et al. v. F. W. WOOLWORTH CO.
• Court: Missouri Court of Appeals

135 S.W.2d 359

McDONALD et al. v. F. W. WOOLWORTH CO.

No. 19408.

Kansas City Court of Appeals. Missouri.

June 19, 1939.

Rehearing Denied January 8, 1940.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be published in State Reports."

Action for slander by Booker T. McDonald, a minor, by his next friend, F. D. L. McDonald, against F. W. Woolworth Company, a corporation, and another. From a judgment on verdict for the plaintiff, defendants appeal.

Affirmed.

Hill & Riederer, of Kansas City, for appellants.

James D. Pouncey, of Kansas City, for respondent.

CAMPBELL, Commissioner.

Action to recover actual and punitive damages for slander commenced on April 7, 1937.

The verdict on trial to a jury was for the plaintiff for actual damages in the amount of $461, and punitive damages in the sum of $550. From the judgment on the verdict the defendants have appealed.

The petition charged that defendant, F. W. Woolworth Company, a corporation, acting through its agent and servant, falsely, wilfully and maliciously spoke of plaintiff the following false and slanderous words: "What are you doing stealing that electric light bulb?"

The joint answer of the defendants was a general denial followed by allegations to the effect that the matters alleged in the petition had been adjudicated in an action brought against the defendant company by the present plaintiff on October 22, 1936.

It is not claimed the petition was insufficient or that the evidence failed to prove the alleged slander; nor is the authority of George Leonard Sample to act and speak for his codefendant questioned, and we will therefore not detail the evidence tending to support the allegations of the petition.

The former suit was brought by the present plaintiff against F. W. Woolworth Company. Sample was not a party.

The first petition in that suit alleged facts sufficient to charge that F. W. Woolworth Company, its agents, wantonly assaulted plaintiff and charged plaintiff with stealing an electric light bulb. Both actual and punitive damages were prayed. That cause was tried on an amended petition which charged false arrest only. The trial of the cause with a jury resulted in a verdict and judgment for the defendant.

The evidence in the instant case shows that Sample was the manager of the store of his codefendant; that he spoke and published the slanderous words attributed to him, and that at the same time he was guilty of the acts which were claimed in the former suit to have constituted false arrest.

The record in the former suit, introduced by defendants, shows the institution of the suit, its purpose, and the result as alleged. The evidence in the present case was substantially the same as in the former action.

The defendants say the court erred in refusing to direct verdict for them at the close of the evidence for the reasons (1) that plaintiff had his day in court, tried all the issues involved on this appeal in the former action, and (2) plaintiff split his cause of action.

The record recites that at the close of the evidence the defendants requested the court to give a peremptory instruction lettered B as follows: "Comes now the defendant at the close of all the evidence and demurs to the same and requests the court to sustain the demurrer for the reason that plaintiff's evidence fails to make out a case entitling him to judgment against the defendant."

The defendants present the case upon the theory that instruction B requested the court to direct verdict in their favor. The instruction said the defendant requested the court to sustain the demurrer when in fact no demurrer was pending and the request was limited to "the defendant."

However, if the instruction were in due form and sought a verdict in favor of both defendants, as they now claim, it should have been refused for the reason that Sample was not a party to the former action, and the plea of res judicata was not available to him. Baur v. Dirhold, Mo. App., 82 S.W.2d 133.

If the instruction included Sample, it was too broad. Whether the former judgment was res judicata as to the defendant, F. W. Woolworth Company, is a question not presented in the record.

This for the reason under no possible construction can it be said the instruction sought a directed verdict on behalf of the defendant company only. In the absence of a separate request by the company that verdict be directed for it, it waived right to claim the cause should not have been submitted to the jury. Gardner v. Stout et al., 342 Mo. 1206, 119 S.W.2d 790, 792.

Following the refusal of instruction B the defendants obtained instructions submitting the case to the jury as one of fact. On the record the cause must be ruled as though defendants voluntarily joined in submitting the questions of fact to the jury, and that neither of them may now say the course thus adopted was improper.

It is claimed the plaintiff's testimony at the trial was impeached by his admission in a deposition taken in the case. Statements of plaintiff in his deposition, even if contradictory of his evidence at the trial, were not conclusive on him. Sugarwater v. Fleming, 316 Mo. 742, 293 S.W. 111; Moffett v. Butler Mfg. Co., Mo.Sup., 46 S.W.2d 869; Parrent v. Mobile & Q. R. Co., 334 Mo. 1202, 70 S.W.2d 1068, 1074.

Defendants assign error to the action of the court in permitting plaintiff's counsel to ask one of the employees of F. W. Woolworth Company whether there had been "incidents similar" to the one in question since she had been employed. The objection to the question was, "I object * * * we can only try one law suit at a time. I don't know anything about what he is talking about. I object to it." The objection was overruled and the witness answered, "no, sir."

The objection was not sufficient; it was too general. Furthermore we regard the matter as trivial.

It is claimed the actual damage is excessive. No authority is cited in support of the contention. Sample, in the presence and hearing of several persons, so the jury could find, charged that plaintiff was a thief. Sample and his witnesses denied he made the charge, but the jury found he wantonly, wilfully and falsely spoke the words. We, in the circumstances, cannot say the actual damage is excessive. Perdue v. Montgomery Ward & Co., 341 Mo. 252, 107 S.W.2d 12.

The foregoing rules all the...