Perdue v. Montgomery Ward & Co.

• Citation: 107 S.W.2d 12,341 Mo. 252
• Parties: Ida May Perdue v. Montgomery Ward & Company, a Corporation, Appellant
• Decision Date: 30 June 1937
• Court: Missouri Supreme Court

107 S.W.2d 12

341 Mo. 252

Ida May Perdue v. Montgomery Ward & Company, a Corporation, Appellant

Supreme Court of Missouri

June 30, 1937

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

Wilson Bundschu & Bailey for appellant.

(1) The court erred in giving plaintiff's Instruction 1 which directed a verdict for the plaintiff in the event the jury found that the alleged communication was made, that it was false, that it was heard and understood by a third person and that plaintiff was damaged thereby, in that such instruction failed to take into consideration that the occasion was qualifiedly privileged and that to justify a verdict for the plaintiff the jury must find that malice existed on the part of the defendant. (a) The qualified privilege is extended to a communication relating to a suspected crime. Gust v. Montgomery Ward & Co., 229 Mo.App. 371, 80 S.W.2d 286; Butler v. Freyman, 216 Mo.App. 636, 260 S.W. 523; Kroger Grocery Co. v. Yount, 66 F.2d 700; Montgomery Ward & Co. v. Watson, 55 F.2d 184; Newell on Slander & Libel (3 Ed.), sec. 397; Newell on Slander & Libel (4 Ed.), sec. 345, p. 383; Lee v. Fuetterer Battery & Supplies Co., 23 S.W.2d 45. (b) It is for the court to determine in the first instance if the occasion is privileged. Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100; Finley v. Steele, 159 Mo. 299, 60 S.W. 108; Warren v. Pulitzer Pub. Co., 78 S.W.2d 404. (c) The occasion being privileged, it then became a question for the jury to determine whether the defendant was guilty of such actual malice as would destroy that privilege. Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100; Wagner v. Scott, 164 Mo. 289, 63 S.W. 1107. (d) Even if the communication exceeded the privilege, the determination of that abuse still remained a question for the jury. 26 A. L. R. 843; Nevill v. Fine Arts & Gen. Ins. Co., 2 Q. B. 156, 59 J. P. 371. (e) If the evidence to prove malice is equally consistent with the existence of malice as with its nonexistence, the judge should have directed a nonsuit. Newell on Slander & Libel (4 Ed.), sec. 718, p. 803, sec. 280, p. 316; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100; Gust v. Montgomery Ward & Co., 80 S.W.2d 286; Natl. Disabled Soldiers' League v. Haan, 4 F.2d 436. (2) The testimony given by the defendant's witness Johns did not destroy the privilege as a matter of law. Ecuyer v. N. Y. Life Ins. Co., 172 P. 359, L. R. A. 1918E, 536; Newell on Slander & Libel, sec. 419, p. 442, sec. 395, p. 420, sec. 282, p. 318; White v. Nichols, 3 How. 266, 11 L.Ed. 591; Townsend on Slander & Libel (4 Ed.), sec. 204, p. 279, sec. 288, p. 514; Hartman v. Hyman, 287 Pa. 78, 48 A. L. R. 567; Montgomery Ward & Co. v. Watson, 55 F.2d 184; Blake Odgers on Libel & Slander (5 Ed.), p. 354; Wagner v. Scott, 164 Mo. 289, 63 S.W. 1107; Conrad v. Allis Chalmers Mfg. Co., 73 S.W.2d 438; Gust v. Montgomery Ward & Co., 229 Mo.App. 371, 80 S.W.2d 286; Butler v. Freyman, 216 Mo.App. 636, 260 S.W. 523. (3) Discussion of cases which are relied upon by the plaintiff. Mock v. Am. Ry. Express Co., 296 S.W. 855; McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S.W. 193; Peak v. Taubman, 251 Mo. 390, 158 S.W. 656; Allen v. Edward Light Co., 209 Mo.App. 165, 233 S.W. 953; Wagner v. Scott, 164 Mo. 289, 63 S.W. 1107; Lee v. Fuetterer Battery Co., 23 S.W.2d 45; Conrad v. Allis Chalmers Mfg. Co., 73 S.W.2d 438; Finley v. Steele, 60 S.W. 108, 159 Mo. 299; Reese v. Fife, 279 S.W. 415; Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404. (4) The court erred in its refusal to give defendant's Instruction B at the close of all the evidence. Montgomery Ward & Co. v. Watson, 55 F.2d 184; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100; Newell on Slander & Libel (4 Ed.), sec. 718, p. 802; Gust v. Montgomery Ward & Co., 229 Mo.App. 371, 80 S.W.2d 286; Tilles v. Pulitzer Pub. Co., 241 Mo. 609, 145 S.W. 1143. (5) The court erred in its refusal to give defendant's Instruction F. (6) The verdict was excessive in that no actual damages were proved, there was no proof of the publication of the alleged slanderous words, and the verdict shows on its face it was based on passion or prejudice rather than on sober judgment. Kroger Grocery Co. v. Yount, 66 F.2d 700; Montgomery Ward & Co. v. Watson, 55 F.2d 184; 17 R. C. L., p. 344; Pulitzer v. Chapman, 85 S.W.2d 400.

Calvin, Vandeventer & Kimbrell for respondent.

(1) Appellant cannot be heard to urge in this count the defense of privilege, for the reason that, in its answer, it did not plead privilege, in that it did not allege or admit that it uttered or spoke the words alleged in respondent's petition to have been uttered and spoken by it, and did not allege that, at the time it uttered or spoke the words alleged to have been uttered and spoken, it did so in good faith, and in the honest belief that the words uttered or spoken were true. Reese v. Fife, 279 S.W. 424; Sitts v. Daniel, 284 S.W. 861. (2) Appellant denied that it uttered or spoke the defamatory words, and its proof failed to sustain the defense of privilege. Atterbury v. Brinks Express Co., 90 S.W.2d 808. (3) Respondent's Instruction 1 was not erroneous in failing to take into consideration that the occasion was qualifiedly privileged, and in failing to submit the question of qualified privilege to the jury; but said instruction was a correct one, under all the evidence in the case, for these reasons: (a) That the words spoken were slanderous per se, in that, by the use thereof, respondent was charged with the grave crime of theft or larceny of the coat. Starnes v. St. J. Ry. L. H. & P. Co., 331 Mo. 50, 52 S.W.2d 854, Id., 22 S.W.2d 76; Hartwig v. Hartwig, 162 Mo.App. 284, 142 S.W. 797; R. S. 1929, sec. 4172. (b) There was no question of privilege in the case, under the evidence of both appellant and respondent. (c) That the evidence of both appellant and respondent shows the falsity of the charge of larceny of the coat. Wagner v. Scott, 164 Mo. 301, 63 S.W. 1111; Cook v. Pulitzer Pub. Co., 241 Mo. 362, 145 S.W. 492; Conrad v. Allis-Chalmers Mfg. Co., 228 Mo.App. 832, 73 S.W.2d 446; Warren v. Pulitzer Pub. Co., 336 Mo. 200, 78 S.W.2d 412; Hartman & Co. v. Hyman, 287 Pa. 78, 134 A. 486, 48 A. L. R. 567. (d) That the evidence of both appellant and respondent shows that the charge of larceny made against the respondent was not made in good faith, that is to say, in the honest belief that the charge of larceny was true. Minter v. Bradstreet Co., 174 Mo. 486, 73 S.W. 680. (e) That the evidence of both appellant and respondent shows that there was no probable or reasonable cause for charging the respondent with the crime of larceny. (f) That the character and nature of the charge made against respondent conclusively show the absence of privilege. Sullivan v. Strahorn-Hutton-Evans Comm. Co., 152 Mo. 268, 53 S.W. 912. (g) That, even if it be conceded that the occasion warranted a qualified privilege, such privilege did not warrant or justify a charge of larceny against the respondent; that the charge of larceny exceeded the privilege, if any; and that the charge of larceny was an abuse of the privilege, if any such privilege existed. (4) The court did not err in overruling appellant's demurrer, offered at the close of all the evidence in the case, for these reasons: (a) Under all the evidence, respondent made a case for the jury. Starnes v. St. J. Ry. L. H. & P. Co., 331 Mo. 50, 52 S.W.2d 854, Id., 22 S.W.2d 76; Cameron v. Cameron, 162 Mo.App. 114, 144 S.W. 173; Frazier v. Grob, 194 Mo.App. 405, 183 S.W. 1083; Lorange v. Lorange, 115 Mich. 681, 74 N.W. 228. (b) That the words spoken were slanderous per se, in that, by the use thereof, respondent was charged with the grave crime of the theft or larceny of the coat.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action for slander. The jury returned a verdict in favor of plaintiff for actual damages, $ 1000, and for punitive damages, $ 500, and judgment was entered upon the verdict. Motion for new trial was denied, and defendant appealed to the Kansas City Court of Appeals, where the judgment was affirmed (100 S.W.2d 341), but that court deeming its decision in conflict with the decision of the Springfield Court of Appeals in Gust v. Montgomery Ward & Company, 229 Mo.App. 371, 80 S.W.2d 286, certified the present cause to this court. [See Const., Amendment 1884, Sec. 6.]

The Court of Appeals correctly stated the case, which statement we adopt, and it is:

"The petition alleged that plaintiff was an extra clerk in the store of the defendant in Kansas City, Mo.; that on March 3 1934, she, through mistake, took from said store a coat, the property of another employee of the defendant; that on March 7, 1934, she learned that she had taken said coat; that she thereupon informed Mrs. Boone, defendant's employee, of the fact, and that she would bring the coat to the store that thereupon plaintiff returned the coat to the defendant and was directed by Mrs. Boone to take it to the office of Harry C. Johns, another of defendant's employees; that she went to the office of Johns, stated to him the facts concerning the taking of the coat, to which Johns replied: 'It could not have been a mistake; you knew it was not your coat. Why did you take it? If it had been a mistake, you would have returned it immediately. You simply stole that coat, that's what you did.' And that Johns falsely, wantonly, and maliciously spoke said words in the immediate presence and within the hearing of other persons. The answer denied generally and specifically the speaking of the words; alleges the relationship of plaintiff and defendant; that plaintiff removed a lady's coat from the place where employees' coats were usually stored during working...