Peak v. Taubman

• Decision Date: 28 June 1913
• Citation: 158 S.W. 656,251 Mo. 390
• Parties: LAURENCE G. PEAK, Appellant, v. EDWIN M. TAUBMAN
• Court: Missouri Supreme Court

158 S.W. 656

251 Mo. 390

LAURENCE G. PEAK, Appellant, v. EDWIN M. TAUBMAN

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed and remanded.

James A. Reed, William Aull and Horace F. Blackwell for appellant.

(1) The court erred in granting instruction 3 on the part of the respondent. (a) The conversation between respondent and witness Wilson, was not privileged. Holmes v. Fraternal Union, 222 Mo. 556; Finley v. Steele, 159 Mo 305; Sullivan v. Company, 152 Mo. 277; Byam v Collins, 111 N.Y. 143; Gassett v. Gilbert, 6 Gray (Mass.), 94; Klinck v. Colby, 46 N.Y. 427; Wallace v. Jameson, 179 Pa. St. 116; Conway v Pittsburg Times, 139 Pa. St. 334; Quinn v. Scott, 22 Minn. 462; Swan v. Tappan, 5 Cush. (Mass.) 104; Newell on Defamation, Libel and Slander, pp. 523-524, and 532. (b) Even though it should be held that the language was privileged the evidence in this case shows that the privilege was abused and lost. Finley v. Steele, 159 Mo. 305; Wagner v. Scott, 164 Mo. 303; Callahan v. Ingram, 122 Mo. 365; Sullivan v. Company, 152 Mo. 277; Fish v. Company, 102 Mo.App. 6; Newell on Libel and Slander (2 Ed.), 475; Wallace v. Jameson, 179 Pa. St. 116; Conway v. Pittsburg Times, 139 Pa. St. 334; Nieb v. Hope, 111 Pa. St. 152; 25 Cyc. 386; Inland Co. v. Supply Co., 99 Ill.App. 8; Wilson v. Barnett, 45 Ind. 163; Cole v. Wilson, 187 B. Mon. (Ky.) 212; Landen v. Watkins, 61 Minn. 137; Payne v. Ross, 66 N.Y.S. 705; Chaffin v. Lynch, 84 Va. 884; Byrne v. Funk, 38 Wash. 506. (c) It was not necessary for the plaintiff to show that the defendant was actuated by motives of personal spite or ill-will toward him before he could recover. Callahan v. Ingram, 122 Mo. 371; Tilles v. Publishing Co., 241 Mo. 642; Jones v. Murray, 167 Mo. 47; Ickenroth v. Transit Co., 102 Mo.App. 615; Fulkerson v. Murdock, 53 Mo.App. 151; Arnold v. Company, 76 Mo.App. 175; Anderson v. Shockley, 159 Mo.App. 335; Goetz v. Ambs, 27 Mo. 33; Townshend on Slander & Libel, p. 68, sec. 87; State v. Jungling, 116 Mo. 164; Lampert v. Company, 238 Mo. 418; Brown v. Knapp & Co., 213 Mo. 694; Stubbs v. Mulholland, 168 Mo. 48; Carp v. Company, 203 Mo. 354; McNamara v. Company, 182 Mo. 680; Buckley v. Knapp, 48 Mo. 160; Hearne v. DeYoung, 132 Cal. 357; Newell on D., S. & L., pp. 315, 318; Clark v. Molyneux, L. R. 3 Q.B. 237 (C.A.). The court erred in granting instruction 4 on the part of the respondent. By this instruction the court declared that malice as used in the instructions meant that the defendant was actuated by motives of personal spite and ill-will toward the plaintiff. This is not a proper definition of malice under the decisions of this court and other courts. Authorities, supra. The court erred in refusing instruction 11 asked on the part of the plaintiff. This instruction correctly defined malice. Authorities, supra. (2) The court erred in refusing instruction 12 asked on the part of the plaintiff. Authorities, supra; 13 Ency. Pl. & Pr., 88, 90; Smith v. Thomas, 2 Scott, 546; Odonaghue v. McGovern, 23 Wend. 26; Prewitt v. Wilson, 128 Iowa 198; Lucan v. Smith, 1 H. & N. 481; 25 Cyc. 459. (3) The court erred in excluding testimony offered on the part of the appellant. Hawkins v. Bilby, 16 M. & W. 442; Nelson v. Borchenins, 52 Ill. 236; 25 Cyc. 582; Dewitt v. Wright, 57 Cal. 576.

William H. Chiles, Charles Lyons and Alexander Graves for respondent.

(1) The evidence (literally quoted) on part of plaintiff as set forth in our "Statement" shows that the conversation with Wilson was privileged; or if it does not, then considering the whole evidence in the case, it is clear that the words complained of were used upon an occasion which was qualifiedly privileged. Wilson's evidence upon cross-examination most emphatically shows that he, at the time of the conversation on the train to Kansas City, had a deep personal interest in discovering the forger; and certainly the defendant bank president had a corresponding interest. And it is immaterial that Wilson severed his connection with the bank some two weeks before the discovery of the Shull checks, because he paid the first one of them, also the "Weber" check, and initialed both with his "W." Hence, his duty to discover the "history of that transaction" was both legal and moral, and his personal interest was involved. These facts authorize the granting of defendant's instruction 3. Sullivan v. Com. Co., 152 Mo. 277; Wagner v. Scott, 164 Mo. 301; Finley v. Steele, 159 Mo. 305; Kersting v. White, 107 App. 279; Shurtleff v. Stevens, 51 Am. Rep. 701; Somerville v. Hawkins, 10 C. B. 583; Newell (1 Ed.), pp. 523, 788. Besides plaintiff made no objection or exception to granting said instructions. Objections to giving instructions must be made at the time and exceptions preserved. Calvert v. Alexandria, 33 Mo. 149; Walsh v. Allen, 50 Mo. 181; Lefkow v. Allred, 54 Mo.App. 141. Wilson's evidence in chief as to the words of the slanderous charge, both in form and substance, differs from his evidence on cross-examination. The words used in the chief examination are not the same words; they are not even the equivalent of the same words, used in the cross-examination. The difference is intrinsic and fatal. He is the sole witness, and his evidence does not support the charge. Berry v. Dryen, 7 Mo. 325; Noeninger v. Vogt, 88 Mo. 592; Birch v. Benton, 26 Mo. 161; Bundy v. Hart, 46 Mo. 466; Kuntz v. Hartwig, 151 Mo.App. 100. (2) The allegation in this count purports to state an alleged conversation with Vaughan, averring the precise words used by respondent on the occasion. (a) This allegation, upon comparison with Vaughan's testimony on the point, is not supported by Vaughan's evidence as to the words of the alleged slander. The words in the charge and in Vaughan's evidence are essentially different, both in form and substance. They are not the same words; they are not even the equivalent of the same words. The difference between them is essential and fatal. This proposition is fully sustained by the authorities, supra. (b) Wilson's evidence shows that at the time when all these checks, Shull's, Webber's and Davis' were forged, there were three bookkeepers in the bank working on the books, to-wit: Peak, Wilson and John Taubman. Wilson testifies that the "Weber" and $ 500 Shull check were both paid and initialed by him with his "W." Vaughan testifies that he and Taubman examined Wilson's and Peak's books for "letters" in the books and on the checks after the utterance of the alleged slanderous words. That Taubman did not call his attention to Peak's handwriting because he (Vaughan) was familiar with it. Can the court say from Vaughan's testimony that the respondent's acts and words singled out on this occasion bookkeeper Peak any more than either one of the other two bookkeepers; especially, any more than bookkeeper Wilson. This question was submitted to the jury by respondent's instruction 2 (not assigned for error nor complained of in brief of appellant). Newell (1 Ed.), 767, sec. 16. (3) Plaintiff makes objection to instruction 4 on the part of respondent and eliminates the word "actual" before the word "malice;" and then proceeds to state "by this instruction the court declares that malice as used in the instructions meant that defendant was actuated by motives of personal spite and ill will toward plaintiff. This is not a proper definition of malice." But instruction 4 did not define "malice." Instruction 4 defined "actual malice," and no authority need be cited to the court to show the correctness of this instruction. (4) Appellant complains of the refusal of instruction 12 asked by him. Legally and logically the court was compelled to refuse said instruction since after overruling plaintiff's motion to strike out the plea of privilege the plaintiff joined issue with that plea by filing his reply thereto. Hubbard v. Slavens, 218 Mo. 616. (5) Appellant complains of refusing his instruction 1 as asked. Its refusal was proper because of its use of the phrase "in substance." Atterberry v. Powell, 29 Mo. 435. At any rate the same instruction was granted by the court with the addition of the words contained in brackets. Again this modification is authorized by the doctrine maintained by this court by previous decisions. Cook v. Publishing Co., 241 Mo. 360; Sullivan v. Com. Co., 152 Mo. 277; Newell (1 Ed.), 323, sec. 21.

WOODSON, P. J. Bond, J., concurs; Lamm, J., in result; Graves, J., concurs in separate opinion.

OPINION

WOODSON, P. J.

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, Missouri, 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 name 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,...