Mock v. American Ry. Express Co.

• Decision Date: 27 June 1927
• Docket Number: No. 15884.,15884.
• Citation: 296 S.W. 855
• Parties: MOCK v. AMERICAN RY. EXPRESS CO.
• Court: Missouri Court of Appeals

296 S.W. 855

MOCK v. AMERICAN RY. EXPRESS CO.

No. 15884.

Kansas City Court of Appeals. Missouri.

June 27, 1927.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by Charles F. Mock against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, George J. Mersereau, and Richard S. Righter, all of Kansas City, for appellant.

Benjamin W. Grover and Virgil Yates, both of Kansas City, for respondent.

WILLIAMS, C.

This is an action for slander. There was a verdict and judgment in favor of plaintiff in the sum of $1,500 actual damages and $1,500 punitive damages, and defendant has appealed.

It was charged in the petition that plaintiff in November, 1921, was employed by the defendant as foreman in charge of city deliveries of express at the Union Station in Kansas City, Mo.; that one Long was a special agent of the defendant, whose duty it was to investigate offenses that had been committed against it by employees or others, and that Long was investigating four boxes of merchandise that had been lost, misplaced, or stolen from defendant "on the ___ day of November, 1921"; that Long, while making such investigation, falsely, wantonly and maliciously spoke of plaintiff the words, "You (meaning plaintiff) delivered this shipment and deliberately stole these goods." The defense set up in the answer was a general denial and a plea of privilege, in that Long, at the time in controversy, was making an investigation as a special officer, and it became necessary for him to question plaintiff in reference to the matter under investigation, and that the questions asked and the statement made by Long at the time in question "were made by him in the reasonable belief that said statements were true," and "that any statements by Long made at the time or times alleged in plaintiff's petition were privileged, and were solely and wholly in the performance of his duty as an officer of the law, for the furtherance of justice in the detection of crime, if crime was committed, and for the purpose of apprehending any persons guilty of such crime." (Italics ours.)

The facts show that plaintiff, together with five or six assistant foremen and one Files, a delivery clerk under him, previous to, and at the time of, the utterance of the slanderous words, had been, and were, delivering, when called for, express shipments to consignees at the Union Station in Kansas City, but, as a matter of fact, no one but Files and plaintiff were directly authorized to make such deliveries. Before Files could deliver a shipment, he was required to call the sheet writer, who removed the waybill from the package, taking the bill to the revising department, where the charges were written upon it; the amount of the charges was also entered upon what is called a settlement sheet. After the revising clerk had entered the charges on the settlement sheet, he detached the "delivery sheet" from the waybill, which he also turned over to the delivery clerk. The delivery sheet was then attached to the settlement sheet. In order to show that the shipment had been delivered, the delivery clerk signed the delivery sheet on its back, showing the time at which he made the delivery. He also signed the settlement sheet. None of defendant's employees were authorized to sign delivery sheets for any shipment of which he did not himself personally make delivery. After delivery had been made of shipments called for at the city room at the station, the company had no record other than the delivery and settlement sheets as to who received the shipment or who delivered it. After his duties for the day were over, the delivery clerk took the delivery sheet and the settlement sheet to the settlement clerk, after which it became a permanent record of the company. The number of the waybill was shown on both the delivery and settlement sheets. There was no other way of tracing a delivery of a shipment except through the delivery and settlement sheets.

Defendant's evidence shows that Long had a special officer's commission from the board of police commissioners of Kansas City, Mo., but was in defendant's employ, devoted all of his time to its service, and was paid by it. Long, testifying for defendant, stated that his duty was the protection of the company's property and merchandise intrusted to it for transportation in Kansas City; that he "had charge of the watchmen, and I make all special investigation regarding theft or irregularities or any other special investigation that was required by our department"; that on November 9, 1921, the district accountant called his attention to a "tracer" from Savannah, Ga., covering a shipment of four boxes from the Georgia Welding Machine Company at Savannah to the Larson's Confectionery & Tobaco Company at Kansas City, Mo., which shipment defendant's record showed was delivered to the consignee at Kansas City on October 19th. This was a prepaid shipment. He testified that "a tracer is when the consignee has notified the consignor that his shipment had not arrived, the consignor starts a tracer with the express company to determine what became of that shipment." Long further testified that the district accountant gave him the tracer and delivery sheet covering the delivery of the shipment. The delivery sheet introduced in evidence purports to be signed by "Larson Con. & Tob. Co.," as consignee, by "L. W." At the bottom of the sheet, and to the right of the name of the consignee, appears the name "Files." The settlement sheet also has written upon it the name "Files" in the blank left for the signature of the delivery man.

Long further testified that in May or June, 1920, the company published a notice and rule requiring that no one should sign a delivery sheet except the clerk who actually made the delivery; that he showed Files the delivery sheet, and asked him, "Who did you deliver this to?" and that Files looked at it, and said, "I didn't make that delivery," and told Long that plaintiff had made it.

Plaintiff was on his vacation at the time, and Long went to the place of business of the Larson Confectionery & Tobacco Company, and there learned that it had never received the shipment. On November 26th Long called plaintiff to his office, and told him that Files had informed him that plaintiff had made the delivery, and plaintiff said, "Mr. Files is mistaken"; that plaintiff further said that he "never saw the delivery sheet, and knew nothing about the shipment." The witness sent plaintiff for Files, and the two came back, and the witness told Files that plaintiff had denied that he made the delivery. This was in Long's office, and the doors were closed, and no fourth person was present. Files said that he might have been mistaken about plaintiff's making the delivery, and that "I don't know who delivered it." Plaintiff said that he did not "know anything about it." Files then said that he did not believe that plaintiff had made it, and that he did not know who delivered it, but that he (Files) did not. The witness then asked Files "why the rules had been violated, why he should settle a sheet in violation of our rules that was delivered and, signed by some other delivery clerk." Files said that he had never been instructed not to make such settlements. The witness then asked plaintiff about it, and plaintiff agreed with him that the instructions in regard to signing the settlement sheets "were being violated down there." The witness then said to plaintiff, "You know the man that made this delivery deliberately stole the shipment," and plaintiff replied, "Yes, sir." At this time Files got down from the table and asked Long, "What do you mean, are you accusing me of stealing that delivery?" And Long replied, "You said you didn't make this delivery, didn't you?" and Files replied, "Yes." The witness then said, "Then I am not accusing you." The witness testified that in this conversation he was not excited or angry; that "I sometimes use my finger, a habit I have."

As before stated, after the name of the consignee that was signed to the delivery sheet in question appeared the initials "L. W.," and in going over the delivery sheets he found another shipment with the initials "L. W." following that of the consignee therein, whose signature appeared to it, and that this delivery sheet disclosed a shipment from the Acme Supply Company at New York City to the Crescent Electric Company at Kansas City; that the records of the company showed that this shipment purported to be delivered to the consignee on October 18, 1921. He called upon the consignee, and found that it had never signed for any such shipment, and that it knew nothing whatever about it; that, when Files and Mock came to his office, Mock denied that he made the delivery of this shipment. However, at the bottom of the delivery sheet, which was introduced in evidence, appears the name "Mock" as well as on the blank space left on the settlement sheet for the signature of the delivery man. The witness testified that he did not directly accuse or charge either Mock or Files with theft; that he, at the time, had no opinion as to whether either of them was guilty; that he had no feeling against either one; and that "my relationship with Mr. Mock was very pleasant, in fact, I had a great deal of confidence in him * * * prior to this suit." He was later recalled to the witness stand, and, in answer to questions propounded to him by defendant's counsel, stated:

"Q. Mr. Long, I asked you the question whether, at the time this episode came up about this lost shipment and this conversation you had with Mr. Mock and Mr. Files, you had any malice or feeling of malice or ill will or hard feelings toward those gentlemen? A. No, sir; I didn't have.

"Q. Now, did you mean at the time that you didn't have until this suit was brought or until that incident came up? A. ...