McKim v. Moore
| Decision Date | 09 February 1922 |
| Parties | JOHN V. McKIM, Appellant, v. JOHN D. MOORE |
| Court | Missouri Supreme Court |
Appeal from Shelby Circuit Court. -- Hon V. L. Drain, Judge.
Affirmed.
F. H McCullough, Stewart & Stewart, E. M. O'Bryen and E. A Dowell for appellant.
(1) The words alleged and proven are actionable per se; they impute to plaintiff the commission of a crime under the laws of the United States, indictable, and for which corporal punishment may be inflicted as the immediate punishment, and not as the consequence of a failure to satisfy a pecuniary penalty. Birch v. Benton, 26 Mo. 153; Bundy v. Hart, 46 Mo. 462; Houston v. Wooley, 37 Mo.App. 24; Currey v. Collins, 37 Mo. 328; Boyce v Wheeler, 197 Mo.App. 295; Sec. 6, Selective Service Law of United States, approved May 18, 1917. (2) The circumstances under which the injurious words were spoken are fully alleged in the petition and shown by the evidence. It is also alleged and shown, by way of innuendo, that defendant intended to charge plaintiff with the crime of interfering with and obstructing the operation of the Selective Service Law of the United States and with an unethical act as a physician and surgeon, and that defendant was so understood by said Spees, Anderson and others there present. This makes a case which should have gone to the jury. Boyce v. Wheeler, 197 Mo.App. 295; Peak v. Taubman, 251 Mo. 390; Lewis v. Humphries, 64 Mo.App. 466. (3) In passing upon a demurrer to the evidence, only that tending to make a prima-facie case for the plaintiff should be considered. A demurrer to the evidence admits every fact which the jury might reasonably infer from the testimony and the facts and circumstances in evidence. Peak v. Taubman, 251 Mo. 390; Rine v. Railroad, 100 Mo. 228; Franke v. St. Louis, 110 Mo. 516; Brick Co. v. Contr. Co., 219 S.W. 681. (4) If there is any substantial evidence, direct or inferential, tending to establish plaintiff's cause of action, a demurrer to the evidence should not be sustained. It is only necessary that while any one or more facts or portions of the evidence may not justify a verdict, yet all of the evidence when considered together, so as to place each fact in its proper light and enable the jury to draw correct inferences as to the result of defendant's conduct and the motives with which he was actuated may afford substantial basis for the jury's finding. Evidence offered by defendant should not be considered, unless it supports plaintiff's case. Surbeck v. Surbeck, 208 S.W. 652; Claxton v. Pool, 182 Mo.App. 13, 27. (5) In this case the identical words alleged in the petition were proven, almost exactly as pleaded, by the witness Spees, and, in substance, by others present and who heard the charge made. It is only necessary that substantial proof of the identical words, or enough of the identical words as will support the charge, be proven. All the witnesses testified to the "identical" words, in one form or another. Birch v. Benton, 26 Mo. 153; State v. Westbrook, 186 Mo.App. 421, 171 S.W. 617; Christal v. Craig, 80 Mo. 367. (6) The court erred in excluding from the evidence the official discharge of the witness Joseph S. Anderson from United States Army, and the verbal testimony of said witness that he was inducted into and discharged from the army, subsequent to the examination of August 24, 1917. Such evidence was relevant and tended to prove the fact alleged in the petition, that defendant charged and intended to charge plaintiff with aiding said Anderson to avoid the draft and with interfering with and obstructing the operation of said Selective Service Law of the United States and that said charge was false. This evidence was clearly admissible under the great and general rule, that all facts or circumstances upon which any reasonable presumption can be founded as to the truth or falsity of the issue, or disputed fact, are admissible. 1 Starkie, Evid. sec. 7; Ann. Cas. 1914C. 878; 10 R. C. L. 925, 928, secs. 87, 91.
H. J. Libby, J. D. Dale and Campbell & Ellison for respondent.
(1) The words charged: "Why in the hell didn't you tell him that you wouldn't have passed either if you had been doped like Doc McKim doped him," are not actionable per se. Adams v. Hannon, 3 Mo. 222; Church v. Bridgman, 6 Mo. 193; Palmer v. Hunter, 8 Mo. 512; Burch v. Benton, 26 Mo. 153; Speaker v. McKenzie, 26 Mo. 255; Curry v. Collins, 37 Mo. 324; Bundy v. Hart, 46 Mo. 461; Powell v. Crawford, 107 Mo. 595; Christal v. Craig, 80 Mo. 367; Walsh v. Company, 250 Mo. 151. (2) Spoken words are not actionable per se unless they charge or impute a crime. Christal v. Craig, 80 Mo. 369; Bundy v. Hart, 46 Mo. 460. (3) When the spoken words are not actionable per se the colloquium must show they were used in such a connection and such a sense as to impute a crime. Cases cited above. (4) The plaintiff must allege and prove that the words were actually used in an actionable sense, that they applied to plaintiff, and that the hearers so understood them. Fenn v. Kroeger, 209 S.W. 887.
In Banc.
-- This is an action for damages for slander, brought in the Circuit Court of Knox County, but transferred by a change of venue to Shelby County, where it was tried in October, 1919. At the close of plaintiff's testimony the court gave an instruction in the nature of a demurrer to the evidence. Upon plaintiff declining to plead further, judgment was rendered in favor of the defendant, from which this appeal has been perfected.
The material portions of the petition upon which the determination of this action depends is substantially as follows: That in August, 1917, the plaintiff and the defendant and Gilbert S. Moore, Joseph S. Anderson, Gale Spees and other citizens of Knox County were in the city of Edina attending a session of the County Medical Examining Board held under the provisions of the Selective Service Law of the United States; that the plaintiff is a practising physician and surgeon in Knox County, and was in attendance upon said board as an assistant member of same, and was engaged in the examination of registrants; that while plaintiff was thus engaged Joseph S. Anderson came out of the room where the examinations were being held and was asked the following oral question by Gilbert S. Moore, to-wit: "Did you pass?" to which inquiry said Anderson replied, "No;" that in the presence and hearing of the persons heretofore named and others, the defendant propounded to said Moore the following inquiry: "Why in the hell didn't you tell him that you wouldn't have passed either, if you had been doped like Doc McKim doped him;" that this oral charge or statement was loudly and angrily made by the defendant and was heard and understood by Gale Spees, Joseph S. Anderson and others then and there present; that upon an inquiry subsequently made of the defendant by the plaintiff as to the truth of the charge stated to have been made by the defendant against the plaintiff, the defendant denied having made same, but later to and in the presence of a Miss Rudd repeated, in effect, said false charge in this language: "Joe Anderson is as healthy as my boy or anyone else's boy and he undoubtedly would have passed examination if McKim hadn't doped him." In addition, the petition contains allegations that the charge was falsely, maliciously, wrongfully and wilfully made and that defendant falsely and maliciously charged and intended to charge plaintiff with the commission of a criminal and unlawful act under the laws of the United States of America, and with the commission of an unethical act as a physician and surgeon, and that said false and slanderous words were so heard and understood by said Gale Spees, Joseph S. Anderson and divers other persons then and there being.
The answer is, first, a general denial; and, second, that prior to the date of the alleged charge made by the defendant against the plaintiff, it had been currently reported in Knox County that plaintiff had doped said Joseph S. Anderson and that the latter had taken dope furnished by the plaintiff; that on the 24th day of August, 1917, when the said charge is alleged to have been made, the defendant believed the reports to be true.
I. The sufficiency of the petition is the matter at issue. Involved therein is the question, were the words spoken actionable in themselves in that they charged a crime against the United States? It is elementary that to render spoken words actionable per se they must charge or necessarily impute the commission of a crime. Lacking this essential, the petition must contain preliminary averments technically designated as a colloquium charging the existence of such facts as will render the words actionable. [Walsh v. Pulitzer, 250 Mo. 142, 157 S.W. 326, and cases; Cook v. Publishing Co., 241 Mo. 344, 145 S.W. 480, and cases.]
The early annals of our jurisprudence are more rife than those of the present with instances of the use of intemperately spoken words for which actions for damages have been instituted. If, therefore, it is sought by analogy to test the sufficiency of this petition so far as concerns the nature of the words charged to have been used, it will be found necessary to consult the earlier cases where it is evident men were freer in the use of the vernacular and less mindful of the character and effect of their remarks.
Here we are concerned more particularly with the adjudications as to the use of words in which it was held that they were not actionable per se and, hence, a colloquium was necessary to render them the basis of the cause of action. Illustrations of the use of such words and the reasons for the rulings thereon are found in the following cases:
"I stroked her." "The...
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