Norris v. Brady

• Decision Date: 30 October 1939
• Citation: 132 S.W.2d 1059,234 Mo.App. 437
• Parties: LEONARD NORRIS, APPELLANT, v. RUTH E. BRADY, RESPONDENT
• Court: Kansas Court of Appeals

132 S.W.2d 1059

234 Mo.App. 437

LEONARD NORRIS, APPELLANT, v. RUTH E. BRADY, RESPONDENT

Court of Appeals of Missouri, Kansas City

October 30, 1939

Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

AFFIRMED.

Judgment affirmed.

Shultz & Owen for appellant.

(1) Plaintiff's Instruction 1 was not defective. When the words spoken are slanderous per se, it is error to ask the witness what he understood the slanderous words to mean because the words spoken need no explanation. The term thief is slanderous per se. Starnes v. St. Joseph Ry., Light Heat & Power Co., 22 S.W.2d 76; Callahan v. Ingram, 122 Mo. 367-368; McCollum v. Smith (Mo. App.), 199 S.W. 272; Everhart v. Bryson, 244 Mo. 519. (2) Defendant's Instruction G cured error by requiring the jury to find that Dora Tuggle "understood" the said word referred to plaintiff. (3) (a) Defendant is estopped to complain of the failure of plaintiff's instruction having admitted she called plaintiff a thief she cannot complain as to plaintiff's Instruction 1. Lamerson v. Long, 66 Mo.App. 253; Emory v. Phillips, 22 Mo. 499; Breckenridge v. Ins. Co., 87 Mo. 70. (b) In slander the defense justifying the speaking confesses the speaking. Atterberry v. Powell, 29 Mo. 429, l. c. 434; Darrett v. Donnelly, 38 Mo. 494; State ex inf. v. Delmar Jockey Club, 200 Mo. 66; Shoe Company v. McDonald, 138 Mo.App. 339; Foster v. Aubuchon (Mo. App.), 221 S.W. 741 (5), and 17 R. C. L. 326, sec. 70. (c) Defendant not only offered evidence to justify the charge of thief, but in Instruction G told the jury they could not find for plaintiff unless they believed the words spoken were "in fact false and untrue." She thereby assumed that her evidence was sufficient to permit the jury to find that plaintiff was in fact a thief. (d) Furthermore the jury was told by defendant's Instruction I that if they believed from the evidence that defendant acted in good faith and relied and acted upon reasonable grounds plaintiff could not recover punitive damages. (e) Defendant by the admission in her answer, by her defense justifying the words spoken, by submitting in her instruction the truth or falsity of the words spoken and by her instruction permitting the jury to deny punitive damages if they believed defendant had reasonable grounds to believe plaintiff was a thief, thereby closed her mouth to complain in this court of plaintiff's Instruction 1. Parties are restricted on appeal to the theory on which the cause was tried in the court below. Snyder v. Foundry Co. (Mo. ), 14 S.W.2d 606 (3); Miller v. Engle, 185 Mo.App. 580; Geninazza v. Storage Co. (Mo.), 252 S.W. 419 (4). (f) Defendant having submitted to the jury the question of whether her evidence proved that plaintiff was a thief is estopped to now say that she failed to prove that fact. Goldstein v. Winkelman, 28 Mo.App. 439; Felty v. Dunlap et al. (Mo. App.), 203 S.W. 652 (3). See also cases cited subdivision (e) herein. (4) If proof was a departure from the allegations of the petition, it did not constitute a failure of proof, and the pleading should be considered as though it was alleged that the slanderous term was spoken to Dora Tuggle. Shopbell v. City of St. Joseph (Mo. App.), 49 S.W.2d 301 (3). (5) Defendant cannot complain of plaintiff's Instruction 1 because she submitted a similar instruction. Defendant's Instruction F directed a verdict for defendant, that instruction did not require the jury to find that Dora Tuggle heard the words, but simply required the jury to find that the words were spoken "in the presence and hearing" of Dora Tuggle. Neither party can complain if their instructions contain the same defect. Munday v. Knox (Mo.), 9 S.W.2d 966 (7-8); Ard v. Larkin (Mo. App. ), 278 S.W. 1068, 1069 (9-10); 4 C. J. 709; Phillips v. Ry. (Mo.), 226 S.W. 866 (4).

Louis Kranitz for respondent.

(1) (a) Plaintiff's Instruction 1 was defective in that it omitted to state that the jury must find that the words were not only spoken in the presence and hearing of others other than plaintiff, but were also understood by such others and it is so fatally defective even though the evidence showed that the words were in fact spoken in the hearing of others and they understood them. Boomshaft v. Klauber, 190 S.W. 616, l. c. 619; Frazier v. Cobb, 183 S.W. 1083, l. c. 1086 (6); Klaber v. C., R. I. & P. R. R. Co., 33 S.W.2d 149, l. c. 152, 153; Traylor v. White, 170 S.W. 412, l. c. 413 (4) and (5). (b) Plaintiff's Instruction 1 merely required the jury to find that the defendant maliciously spoke of and concerning the plaintiff certain defamatory words "in the presence of Dora Tuggle." No reference is made in said instruction to said alleged words having been spoken in the hearing of the said Dora Tuggle and that she understood or apprehended the words. Klaber v. C., R. I. & P. R. R. Co., 33 S.W.2d 149, l. c. 153; Taylor v. White, 185 Mo.App. 330, 170 S.W. 413; Boomshaft v. Klauber, 190 S.W. 616, l. c. 619. (2) The courts of Missouri have uniformly held that any evidence tending to show that the asserted cause of action never had legal existence is admissible under general denial though the facts presented are affirmative in character, but do not amount to confession and avoidance. See Stein v. Battenfield Oil & Grease Co. (Mo.), 39 S.W. 345; Prewitt v. Witte (Mo. App.), 26 S.W.2d 1020, l. c. 1023; Turner v. Snyder, 132 Mo.App. 320, 111 S.W. 858; Greenway v. James, 34 Mo. 326; Young v. Glascock, 79 Mo. 574; Hoffman v. Parry, 23 Mo.App. 20; Hardwick v. Cox, 50 Mo.App. 509; Mining Co. v. Casualty Co., 161 Mo.App. 201, 142 S.W. 438; Patton v. Fox, 169 Mo. 97, l. c. 106, 69 S.W. 287. Defendant can show under general denial, facts which tend to prove that essential element of plaintiff's cause of action is untrue or that plaintiff never really had a cause of action. Smith v. St. Louis Pub. Serv. Co., 84 S.W.2d 161, l. c. 163-4; Beeler v. Perry, 128 Mo. 234, l. c. 237, 107 S.W. 1008; Bolton v. Mo. P. R. R. Co., 172 Mo. 92, l. c. 102, 72 S.W. 530, l. c. 532; State v. Thompson et al. (Mo.), 85 S.W.2d 594, l. c. 598. Defenses have been held available without being specifically pleaded in the following cases: (a) Fraud--Thomas v. Ramsey, 47 Mo.App. 84; Bank v. Lime Co., 43 Mo.App. 561. (b) Payment, in cases where a nonpayment must be alleged and proved as part of plaintiff's case (as slander must also be alleged and proved as part of plaintiff's case)--State ex rel. v. Peterson, 39 S.W. 435, 40 S.W. 1094. (c) Self defense in action for homicide--Nichols v. Winfrey, 79 Mo. 544. (d) Malicious prosecution (that defendant acted in good faith on advice of counsel)--Sparling v. Conway, 75 Mo. 510. If no objection is made to the introduction of evidence, the necessity of a specific plea is waived. Ziekel v. Douglass, 88 Mo. 382; Colley v. Insurance Co., 185 Mo.App. 622, 171 S.W. 663. (3) Where the words were slanderous per se, the jury must find that the witness heard and understood the meaning of the term. Boomshaft v. Klauber, 190 S.W. 616, l. c. 619; Frazier v. Grob, 183 S.W. 1083, l. c. 1086 (6); Klaber v. C., R. I. & P. R. R. Co., 33 S.W.2d 149, l. c. 152, 153; Traylor v. White, 170 S.W. 412, l. c. 413. (4) It has been held that the giving of such an instruction on the part of defendant would not cure the defect in the instruction of the plaintiff, whose instruction undertook to cover the whole case. Traylor v. White, 185 Mo.App. 330, 170 S.W. 413. (5) The correctness of instructions cannot be considered on appeal where such a transcript of the evidence was not filed as a part of the bill of exceptions. Klene v. Railway Co., 321 Mo. 130, 9 S.W.2d 950, l. c. 953. (6) The granting of a new trial will be sustained by the appellate courts where justified by any ground stated in the motion for new trial. Bungarner v. Ekstrum (Mo. App.), 67 S.W.2d 520, l. c. 521; Sakowski v. Baird, 69 S.W.2d 649, l. c. 651. (7) Appellate courts scrutinize the action of a trial court less strictly in granting a new trial than in refusing a new trial. Spelky v. Kissel-Skiles Co. (Mo. App.), 54 S.W.2d 751; Bungarner v. Ekstrum (Mo. App.), 67 S.W.2d 520.

OPINION

KEMP, J.

This is an action for slander. The petition alleged that:

"Plaintiff for cause of action states that defendant during the first week in August, 1937, in the county of Buchanan, in the State of Missouri, and at the home of defendant, to-wit: 210 West Indiana Avenue, in the City of St. Joseph, Missouri, in the presence of Dora Tuggle, willfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: 'I have got to go out to my because that damn Norris (meaning plaintiff) who is on my farm is stealing everything I have. I never saw a worse thief in my life. I have had men on my place but he is the worst thief I have ever had any dealings with.'"

Defendant answered with a general denial.

Upon trial of the case, the jury returned a verdict for plaintiff, assessing his actual damages at $ 5,000. Defendant, in due time, filed her motion for new trial, which, upon hearing, was sustained by the trial court on the sole ground of error in giving, on behalf of plaintiff, the following instruction numbered 1.

"The court instructs the jury that if you believe and find from the evidence that during the first week in August, 1937, in the County of Buchanan, State of Missouri, at the home of defendant, 210 West Indiana Avenue, in the City of St Joseph, Missouri, in the presence of Dora Tuggle, the defendant maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words to-wit: 'I have got to go out to my farm because that damn Norris (meaning plaintiff) who is on my farm is stealing everything I have. I never saw a worse thief in my...