Schubert v. American Press

• Decision Date: 30 July 1929
• Docket Number: No. 28086.,28086.
• Parties: LORENZ G. SCHUBERT v. AMERICAN PRESS, Appellant.
• Court: Missouri Supreme Court

19 S.W.2d 472

LORENZ G. SCHUBERT v. AMERICAN PRESS, Appellant.

No. 28086.

Supreme Court of Missouri, Division One.

July 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

AFFIRMED.

Buder & Buder and G.A. Buder, Jr., for appellant.

(1) It is a well-established rule that where an indictment or information in a criminal case charges a statutory offense, it will be sufficient if it follows the language of the statute. By analogy the same rule should apply to an instruction in a civil case defining a statutory criminal offense. State v. Julin, 292 Mo. 264; State v. McWilliams, 267 Mo. 437; State v. Harmon, 278 S.W. 733; State v. Halliday, 278 S.W. 970; State v. Sparks, 278 S.W. 1073. (2) Where the doing of a forbidden action in itself constitutes a felony or is indicative of a felonious intent, it is unnecessary to incorporate the word "felonious" or "fraudulent" in an instruction to the jury or to require the jury to find that the act was feloniously or fraudulently done. State v. Shields, 296 Mo. 389; State v. Tipton, 307 Mo. 500; Mansur v. Lentz, 201 Mo. App. 256. (3) All of the court's instructions to the jury are an entirety and must be considered together in conjunction with each other, so that where an instruction given at the instance of the defeated party supplies a missing or wanting element in an otherwise consistent and compatible instruction given for the successful party, no material or prejudicial error will be deemed to exist in the instructions, even though the instruction of the successful party purports to cover the entire case and direct a verdict. La Riviere v. La Riviere, 97 Mo. 83; Scheipers v. Railroad Co., 298 S.W. 55; Dietderick v. Iron & Metal Co., 9 S.W. (2d) 828; Hughes v. Railroad Co., 127 Mo. 447; Ritchie v. Bd. of Agriculture, 297 S.W. 438; Walker v. Clay Mfg. Co., 291 S.W. 183; Hilderbrand v. Railroad Co., 298 S.W. 1072; Steele v. Ancient Order of Pyramids, 125 Mo. App. 680; Hulse v. Ry. Co., 214 S.W. 154; State ex rel. Larson v. Matheson, 261 S.W. 336. (4) Where the verdict and judgment in a case are for the right party and no other result could fairly be arrived at or sustained, any error in the case, whether in an instruction or in the admission or exclusion of evidence, or otherwise, will be deemed to be immaterial, harmless and non-prejudicial to the defeated party and will not be cause for setting aside the verdict and judgment. Phillips v. Publishing Co., 238 S.W. 131; Moloney v. Boatmen's Bank, 288 Mo. 435; Trainer v. Mining Co., 243 Mo. 359; Shinn v. Railways Co., 248 Mo. 173; Koehler v. Paving Co., 269 S.W. 401; Peppers v. Ry. Co., 295 S.W. 759; Koenig v. Heitz, 282 S.W. 107.

Davis, Oliver & Brownback for respondent.

(1) The action of the court in sustaining plaintiff's motion for a new trial for error contained in Instruction 9 is proper. Witt v. State, 9 Mo. 673; State v. Burgess, 268 Mo. 407; State v. Pate, 268 Mo. 431; State v. Rigall, 169 Mo. 659; State v. Cunningham, 154 Mo. 178; Rouse v. Insurance Co., 203 Mo. App. 603; Bellows v. Insurance Co., 203 S.W. 978. (2) The court erred in refusing to give Instruction H requested by plaintiff. State v. Reilly, 4 Mo. App. 392.

RAGLAND, J.

This is an action for libel. On the 8th day of July, 1922, the Schubert Motor Car Company of St. Louis, a corporation, commenced an action in a district court of the United States against the Fidelity & Deposit Company of Maryland by filing a petition in said court. Upon the filing of such petition and before any action had been taken by the court with reference thereto, the defendant published in "The St. Louis Times," a daily paper of large circulation, the following:

"BONDING COMPANY SUED BY SCHUBERT MOTOR CO.

"Suit to force the payment of a $10,000 bond was today filed in the United States District Court against the Fidelity & Deposit Company of Maryland, with headquarters in Baltimore, by the Schubert Motor Car Company, of 1645 South Grand Avenue.

"The suit grew out of the alleged defalcation of Lorenz G. Schubert, former president of the Automobile Company, who, it is charged, embezzled $15,488.63 over a period extending from September 8, 1920, to December 12, 1921. The bonding company, which was surety for Lorenz for the amount named in the suit, was notified on March 9, 1922, according to the petition, but refused to pay its obligation."

The petition in this case alleges that the matters and things set forth in said publication were published of and concerning the plaintiff, that they were false and libelous, and that by reason thereof plaintiff has sustained damages in the sum of $50,000. The answer admits the publication of the article as set forth in the petition and justifies on the ground that the statements contained in the publication were in all respects correct and true. The reply is a general denial.

To justify its publication the defendant assumed the burden of showing that plaintiff embezzled funds of the Schubert Motor Car Company which had come into his possession or under his control as president, treasurer and general manager of that corporation, between September 8, 1920, and December 12, 1921. The salient facts developed by the evidence with respect to this, the only contested issue of fact, will be briefly outlined.

Prior to September 8, 1920, plaintiff had been conducting an automobile sales agency in St. Louis under the name of Schubert Motor Sales Company. On the date last mentioned he and one Pfrimer and one Bevington organized the Schubert Motor Car Company with an authorized capital stock of $32,000, divided into 320 shares of the par value of one hundred dollars each. Bevington contributed to the capital stock $4,000 in cash; Pfrimer, $4,000 in drainage district bonds; and plaintiff, cars (mostly used) and office paraphernalia, all of which he had on hand in connection with his sales agency and which he inventoried to the corporation at $4,135. However, the corporation took over the entire plant, good will, etc., of the Schubert Motor Sales Company, which for the purpose of giving it a paper capital stock of $32,000 it valued at $24,000. An equal number of shares were issued to each of the three incorporators; plaintiff was made president, treasurer and general manager; Pfrimer, vice-president: and Bevington, secretary and chairman of the board of directors. As treasurer plaintiff was required to furnish a fidelity bond in the sum of $10,000 with the Fidelity & Deposit Company of Maryland as surety. For his services as president and general manager he was allowed a salary of $200 per month. No bookkeeper was employed at the beginning, plaintiff keeping an informal record of the corporation's financial transactions through memoranda made from time to time. After some two or three months a bookkeeper was installed and a set of books opened and thereafter kept in due form.

The new corporation bought a carload of automobiles and started off with a flourish, but never succeeded at any time in making expenses, much less a profit for its shareholders. On August 1, 1921, its board of directors by resolution made the salary of the general manager payable thereafter out of earnings only — which was equivalent to cutting it off entirely. By December 1, 1921, financial embarrassment had made the further transaction of business impossible.

Plaintiff as president and general manager had full control of the receipts and disbursements of the corporation's funds: until August 1, 1921, disbursements were made by checks signed by him alone; on that date a resolution was adopted by the board of directors requiring all checks to be signed by both the president and secretary. This requirement, however, was disregarded by the plaintiff and he continued to issue checks over his signature as president as theretofore until December 12, 1921, at which time his connection with the corporation seems to have been entirely broken off.

Plaintiff was never paid his salary in regular monthly installments: the amount, $200 per month, was merely a credit against which he drew from time to time such sums as he required for his personal use.

In December, 1921, Bevington, the secretary, had one Brennan, an expert accountant, audit the corporation's books. According to the audit then made plaintiff, on December 12, 1921, had drawn $705.04 in excess of his salary credits. Shortly thereafter a second audit was made by another accountant, Lange. Lange's statement showed that on December 12, 1921, plaintiff was overdrawn $283.81. Lange, it seems, declined to charge plaintiff with certain disputed items which were not shown by the books or by any other documentary evidence, and which Brennan had included in his audit.

The Motor Car Company took over and in a way continued the business of the Motor Sales Company. At the time of the transfer the latter company was running an advertisement in a local paper for which it was to pay at the rate of two dollars per month. On September 14, 1920, an account for such advertising, covering the months of August and September and amounting to four dollars, was paid by plaintiff with a check drawn against the Motor Car Company's funds in bank. The disposition made of two other accounts is stressed. One was for telephone service from August 20, to September 20, and the other for insurance on automobiles which in point of time extended from before the transfer of the property until afterward: a part of the telephone account and possibly all of the insurance charge should have been paid by the Motor Sales Company, but plaintiff paid both in full with the Motor Car Company's checks. It does not appear that plaintiff caused any part of the three items mentioned to be charged to himself on the Motor Car Company's books; neither is there anything in the evidence affirmatively showing that such failure was motivated by an intention to defraud; it could have resulted from mere carelessness or inadvertence.

...