Peak v. Taubman

• Decision Date: 28 June 1913
• Citation: 158 S.W. 656
• Parties: PEAK v. TAUBMAN.
• Court: Missouri Supreme Court

158 S.W. 656

PEAK v. TAUBMAN.

Supreme Court of Missouri, Division No. 1.

June 28, 1913.

1. TRIAL (§ 156) — NONSUIT — CONSIDERATION OF EVIDENCE.

In passing upon the propriety of defendant's demurrer to the evidence, defendant's evidence should be disregarded, and only that tending to make a prima facie case for plaintiff considered.

2. LIBEL AND SLANDER (§ 123) — ACTIONS — EVIDENCE — SUFFICIENCY.

In an action for slander, evidence held sufficient to go to the jury.

3. TRIAL (§ 156) — NONSUIT — INFERENCES.

A demurrer to the evidence admits every fact which the jury might reasonably infer from the testimony and the facts and circumstances in the evidence.

4. LIBEL AND SLANDER (§ 105) — ACTIONS — EVIDENCE — ADMISSIBILITY.

In a prosecution for falsely charging that plaintiff forged checks, where it appeared that plaintiff, at the time of the forgery, was a bookkeeper in the bank of which defendant was president, and that a long time after the forgery defendant, comparing plaintiff's handwriting with the forged checks, orally charged him with the commission of the crime, evidence of how his hearer understood the charge is admissible where the charge was not direct but was ambiguous.

5. APPEAL AND ERROR (§ 179) — PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW — OFFER OF EVIDENCE.

The exclusion of documentary evidence cannot be reviewed on appeal where neither the document nor its contents were offered in evidence.

6. LIBEL AND SLANDER (§ 45) — PRIVILEGED COMMUNICATION" — WHAT CONSTITUTES.

A privileged communication is one made in good faith upon any subject in which the party communicating has an interest or a duty, made to a person having a corresponding interest and duty, and upon such an occasion that the presumption of legal malice is rebutted; hence, where defendant, a president of a bank, a year after forged checks had been passed, told a former employé of the bank that plaintiff, who at one time had been a bookkeeper, was the author of the forged checks, the communication was not privileged where it was made, not in the pursuance of any investigation, but while the communicant and his listener were riding on a train.

7. LIBEL AND SLANDER (§ 101) — PRIVILEGED COMMUNICATIONS — EFFECT.

Where a slanderous statement is privileged, the presumption of legal malice is rebutted, and the plaintiff has the burden of proving actual malice; but, where the occasion does not justify the slanderous words, then the burden is shifted and the defendant is bound to show his want of malice.

8. LIBEL AND SLANDER (§§ 41, 101) — PRIVILEGED COMMUNICATIONS — "QUALIFIEDLY PRIVILEGED COMMUNICATION."

A qualifiedly privileged communication is a slanderous statement uttered in good faith upon a proper occasion and from a proper motive based upon an honest belief that it is true, but, unlike communications wholly privileged, the defendant has the burden of proving want of malice or ill will.

9. LIBEL AND SLANDER (§ 123) — ACTIONS — DETERMINATION OF PRIVILEGE.

Whether a slanderous communication is qualifiedly privileged is a question for the court to determine in the first instance.

10. LIBEL AND SLANDER (§ 124) — INSTRUCTIONS — THEORY OF INSTRUCTIONS.

In an action for slander, where the slanderous words were not privileged, although there was some evidence tending to show qualified privilege, the giving of an instruction upon the theory of complete privilege cannot be justified because of the evidence of incomplete privilege, for a party cannot request an instruction upon one theory and justify the same upon another.

11. APPEAL AND ERROR (§ 1066) — REVIEW — HARMLESS ERROR.

In an action for slander, where there was no evidence of complete privilege, the giving of an instruction informing the jury that the communication was privileged if made under stated circumstances is reversible error.

12. LIBEL AND SLANDER (§ 4) — "MALICE" — WHAT CONSTITUTES.

In actions for libel and slander, malice does not mean ill will but is legal malice which means intentional wrongdoing.

13. TRIAL (§ 252) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In a slander suit, where plaintiff requested a correct instruction, a modification of the instruction so as to charge the jury upon privilege is error where there was no evidence warranting a charge on privilege.

14. LIBEL AND SLANDER (§ 124) — ACTIONS — QUESTIONS FOR COURT — PRIVILEGE.

The determination whether slanderous communications are privileged is for the court and not for the jury, and an instruction which

submits to the jury the determination of that question is improper.

15. APPEAL AND ERROR (§§ 761, 1078) — BRIEF — SUFFICIENCY.

Where an appellant desires a review of the court's ruling on the admission or rejection of evidence, his brief should point out the reason for the admission or rejection accompanied by appropriate citations of authorities and, if it does not the alleged errors will not be considered.

Graves, J., dissenting in part.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Laurence G. Peak against Edwin M. Taubman. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The plaintiff instituted this suit in the circuit court of Lafayette county against the defendant to recover $60,000 damages for alleged slanderous words spoken of and concerning the former by the latter. The petition was in two counts; each asked for $15,000 actual and $15,000 punitive damages. A trial was had before the court and jury, which resulted in a verdict and judgment for the defendant, and after moving unsuccessfully for a new trial the plaintiff duly appealed the cause to this court.

After a careful reading of the pleadings, we are satisfied that the following summary thereof, made by counsel for appellant, sufficiently presents the issues involved in this case:

"The first count of the petition, in substance, stated that on and prior to March 30, 1905, and April 5, 1905, the plaintiff was, by the Commercial Bank of Lexington, Mo., employed as a bookkeeper, and of which the defendant was president. That while so employed two checks signed in the name of G. W. Shull, a depositor and customer of the bank, one for the sum of $500, dated March 30, 1905, indorsed with the names of G. W. Shull and J. M. Brown, and one for the sum of $650, dated April 5, 1905, and indorsed with the name of J. M. Brown, aggregating the sum of $1,150, were paid in the usual course of business by said bank, the first on April 5, 1905, and the second on April 7, 1905, which said checks were, by said Shull and defendant, alleged to be forgeries, all of which claims were known to Robert A. Wilson prior to the speaking of the words complained of; and the defendant at the time of speaking said words knew that said Wilson had been informed of said claims. That, if said checks or the signatures thereto or the indorsements thereon or any of them were forgeries, such forgeries were without the knowledge or connivance of plaintiff, and plaintiff had no connection either directly or indirectly therewith, and did not participate therein, as defendant well knew. That defendant well knowing the premises, but contriving and maliciously and wickedly intending to defame plaintiff, and to injure him in his good name, fame, and reputation, and to bring him into public infamy, scandal, and disgrace, and to cause it to be suspected and believed by and amongst plaintiff's neighbors and worthy citizens of said state that plaintiff had been and was guilty of forging the names and signatures of said Shull to said checks and the indorsements on the backs thereof, and of cashing or causing to be cashed the same in said bank at the times aforesaid, in a certain conversation with Robert A. Wilson on or about the 8th day of May, 1906, to the said Robert A. Wilson used and spoke the following language: `Laurence Peak [then and there meaning the plaintiff] forged the two Shull checks' (then and there meaning the two G. W. Shull checks alleged to have been forged as aforesaid), then and there charging and intending to charge plaintiff with the forgery of said Shull checks and being understood by said Robert A. Wilson to charge and mean that plaintiff had been guilty of forging the name of G. W. Shull to said checks and of forging the indorsements on the backs thereof. That by reason thereof plaintiff had suffered actual damages in the sum of $15,000 and exemplary damages in the sum of $15,000, for which plaintiff asked judgment.

"The second count is identical with the first excepting it alleges that respondent in a certain conversation with George M. Vaughan, who had for years been the cashier of said bank, and who was familiar with the handwriting of plaintiff in the different books of said bank in or about the month of December, 1906, while comparing the handwriting in and on the backs of the alleged forged checks, with the handwriting of plaintiff in said books, stated to said George M. Vaughan the following words, imputing to plaintiff the commission of the forgery of said checks of said G. W. Shull: `The bank [then and there meaning the said Commercial Bank above mentioned in which plaintiff had been employed as bookkeeper and through which said alleged forged checks had been cashed] has been robbed [then and there meaning that said checks of said G. W. Shull had been forged and cashed in said bank] and the one who has done the robbing [then and there meaning the forgery and cashing of the said checks of said G. W. Shull] was employed in the bank at the time and worked on the books [then and there meaning the said plaintiff to whose handwriting in said book the defendant had just directed the attention of said Vaughan and with which he had just compared the writing in, and signatures to, and indorsements on the said alleged forged checks of said G. W. Shull], and the writing on the checks [then and there meaning the alleged forged checks of G. W. Shull] and in the books [then and...