Outman v. Union News Co.

• Decision Date: 18 February 1922
• Docket Number: No. 22398.,22398.
• Citation: 237 S.W. 800
• Parties: OUTMAN v. UNION NEWS CO.
• Court: Missouri Supreme Court

237 S.W. 800

OUTMAN v.UNION NEWS CO.

No. 22398.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

Action by Lillian Outman against the Union News Company.From judgment for defendant, plaintiff appeals.Affirmed.

Joseph Reilly and Myrt A. Rollins, both of St. Louis, for appellant.

Buder & Buder and A. W. Wenger, all of St. Louis, for respondent.

HIGBEE, P. J.

This is an action for slander; verdict for the defendant.The petition alleges that on May 17, 1919, plaintiff was employed as a waitress in defendant's restaurant in the city of St. Louis, and that while in furtherance of defendant's business, a Mr. Lee, defendant's' manager and foreman, in the presence and hearing of divers persons in said restaurant, falsely and maliciously spoke the following slanderous words to, about, and concerning plaintiff to wit:

"I left $44 on the sideboard.You know you stole that money.You are a damned thief and no better than the rest of the girls who work here."

It concludes with a prayer for $5,000 actual and $5,000 punitive damages.The answer is a general denial.

Plaintiff testified she was employed as waitress in defendant's restaurant; that on May 17, 1919, Lee said to her in a loud voice in the presence of several persons:

"I laid $44 of the company's money there on the sideboard; now it's gone.You are a thief, and you took that money, because there was nobody here but you."

"I was the only one on duty.I said I didn't see no money, and so I was searching and looking around for the money on the floor, and he says: `Go on about your damned business.'"

On cross-examination; in fixing the date, she said:

It was on Saturday after the 138th Infantry came in; "that's the date it was.I was paid on the 1st and the 15th of each month.I know he paid me on the 15th, and I know, as far as I can remember, it was on the 17th; that was on Saturday after the 138th came in.It was two days after."

Mr. Johnson and some ladies were there, and others she did not know.Johnson testified he was in the restaurant.He corroborated plaintiff as to the language used; that he later looked at a calendar and was sure the date was May 17.For the defendant, the manager of the restaurant testified that he lost the money on the morning of May 3, two days after the 138th Infantry returned to St. Louis; that he mentioned it to the employees and they helped him look for it, but that he did not accuse any one of stealing it.He was corroborated by a number of witnesses who were present and heard him speak of losing some money.Lee produced the check by which he paid the defendant for the lost money on May 5.He testified he discharged plaintiff on May 15, because she was not a capable waitress.It was shown by uncontradicted evidence that the 138th Infantry returned to and paraded on the streets of St. Louis on May 1, 1919.

The eighth instruction given for the defendant reads:

"The court instructs the jury that before you can find.for plaintiff in this case you must find and believe that on the 17th day of May, 1919, the defendant spoke the words plaintiff alleges were spoken of and concerning her.If you should find and believe that the words were spoken at an earlier date than the date mentioned, then your verdict must be for the defendant."

Respondent's counsel insist that because plaintiff submitted her case without amending the petition as to the date of the utterance of the slanderous words, she was not entitled to recover if the words were spoken at an earlier date, and that the instruction was properly given.They rely upon Anderson v. Shockley, 266 Mo. 543, 181 S. W. 1151, Ann. Cas. 1918B, 500.It is there held by Judge Faris that our statute(now section 1263, R. S. 1919), "that in an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose,.but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff," has not changed the common-law rule so as to relieve the plaintiff from the necessity of averring when and where the publication was made.Judge Faris stated the rule:

"From these authorities and reasons we think it should be ruled (a) that the plaintiff in an action for slander (and in libel as well where need arise) on motion to make more definite and certain, may be required to set forth when and where and to whom the alleged defamatory words were published; (b) that since each publication of defamatory words constitutes a separate cause of action, every such publication must be separately pleaded in separate counts of the petition, end (c) that no recovery can be had for the publication of a...