Sitts v. Daniel

• Decision Date: 04 May 1926
• Docket Number: No. 19326.,19326.
• Citation: Sitts v. Daniel, 284 S.W. 857 (Mo. App. 1926)
• Parties: SITTS v. DANIEL.
• Court: Missouri Court of Appeals

284 S.W. 857

SITTS v. DANIEL.

No. 19326.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Rehearing Denied June 1, 1926.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

"Not to be officially published."

Action by Wayne Sitts against F. B. Daniel. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence A. Barnes, of Mexico, Mo., for appellant.

Fry & Hollingsworth, of Mexico, Mo., for respondent.

BENNICK, C.

This is an action for slander. The verdict of the jury was in favor of plaintiff for actual damages in the sum of $800, and judgment was rendered thereon, from which defendant has appealed.

In the petition it is alleged that defendant, in the presence of certain persons, willfully, wantonly, and maliciously spoke of and concerning the plaintiff certain false, defamatory, and slanderous words, to wit, "I know that he (referring to plaintiff) has taken 10 bushels or more of my corn"; that defendant thereby implied that plaintiff had stolen and embezzled 10 bushels of his corn; and that said statement was so understood, believed, and construed by the parties hearing the same. The answer was a general denial.

The evidence disclosed that on February 22, 1924, plaintiff rented a farm from defendant in Audrain county, Mo., and that on or about March 1, 1924, he entered into possession thereof and occupied the same throughout the year as a tenant of defendant. The contract, between the parties was an oral one. It appears that defendant had stored in the barns located on the farm a quantity of corn, hay, and oats, and at the time the contract was entered into between the parties it was agreed that plaintiff should have the right to use a part of such corn, hay, and oats for feeding his live stock ; plaintiff agreeing to keep an account of the amount used and to pay defendant therefor. On March 12, 1924, defendant came to the farm and plaintiff at that time paid him for the corn that he had used and, in addition, purchased from defendant a quantity of oats, hay, and straw. On March 21, 1924, defendant again visited plaintiff and informed him that he had sold the corn stored on the premises to his father, J. R. Daniel, and requested plaintiff not to feed any more of it, to which request plaintiff agreed. At that time defendant measured the corn remaining in the bins. After the measurement had been made, plaintiff informed defendant that he intended to purchase some corn and received permission from defendant to rearrange a part of defendant's corn and store that which he intended to purchase in the same barn. After March 21st plaintiff did not use or feed any more of defendant's corn. Shortly afterwards defendant accused plaintiff of having taken more corn after he had been told not to use any more of it ; which accusation plaintiff denied.

Mr. R. P. Robinson, who resided in that community, testified that in May, 1924, in company with his two sons, he had a conversation with defendant, and that he said to defendant:

"Brich, your father said something the other day that I don't think he ought to have said."

Defendant asked what the statement was, and Robinson replied that he had talked just like plaintiff would steal, whereupon defendant replied:

"Lige, I hate to say it, but that boy undoubtedly has took 9 or 10 bushels of corn out of that crib since I measured it up to pa."

Robinson testified further that defendant said that he had been informed that plaintiff's father had a bad reputation at Vandalia and that his "fingers stuck to everything he could get hold of," and that defendant said that "he guessed it run in the stock."

Robinson was asked what he understood defendant to mean by the statement that "that boy has took 9 or 10 bushels of corn since I measured it up to pa." Defendant's counsel objected to such question upon the theory that the meaning to be ascribed to the alleged slanderous words was within the province of the jury. The objection was sustained by the court, whereupon plaintiff's counsel offered to show that the witness would testify that he understood defendant to mean that plaintiff had stolen the corn.

There was further evidence that, in the spring of 1924, defendant had a conversation with one Wallace Mildred, in the presence of a man named Cox, in which defendant said: "I believe that boy is crooked ; I believe he has taken the corn." The evidence was that, prior to the accusation against plaintiff, his reputation in the community in which he lived for honesty, integrity, and fair dealing was good, and that, since the accusation had been made, his reputation for honesty in that community was bad.

Defendant assigns as error the refusal of the court to give the peremptory instruction in the nature of a demurrer requested at the close of all the evidence. It is the contention of learned counsel that there was no proof of malice, nor of facts, from which it could have been inferred ; that the words charged to have been slanderous were not actionable per se, thereby implying malice ; that defendant's statement to Robinson was privileged ; and that enough of the exact words set out in the petition were not proved to make out the precise slander charged.

It is true that it has been held that words charging a taking of property are not actionable per se. 36 C. J. 1208 ; Christal v. Craig, 80 Mo. 367 ; McKim v. Moore, 291 Mo. 697, 704, 237 S. W. 773 ; Boyce v. Wheeler, 197 Mo. App. 295, 195 S. W. 84 ; Williams v. Turnbull (Mo. App.) 232 S. W. 172. Where, as here, the words charged to be slanderous do not necessarily impute a criminal offense, but are quite readily susceptible of that meaning, it is necessary that it be alleged in the petition by way of innuendo, not only that defendant intended to charge plaintiff with the commission of such criminal offense, but also that the words were so understood by those who heard them. See authorities, supra.

The petition in the case at bar fully complied with the above rule and its sufficiency is in no wise questioned. Plaintiff attempted to prove that defendant's statement was understood by the witnesses to mean that plaintiff had stolen the corn. Objection was made by defendant's counsel to the offer of such testimony and sustained by the court upon the theory that it was for the jury to determine the meaning to be given the alleged slanderous words. In so" ruling the court was clearly in error. Where, as here, the words are not obviously slanderous, in order to entitle plaintiff to recover, he must allege and prove that the words were used in an actionable sense and were applied to the plaintiff, and that the hearers so understood them ; accordingly, the testimony of the hearers as to how they understood them is admissible. Penn v. Kroger Grocery & Baking Co. (Mo. Sup.) 209 S. W. 885 ; Jones v. Banner, 172 Mo. App. 132, 157 S. W. 967 ; Lemaster v. Ellis, 173 Mo. App. 332, 158 S. W. 904 ; Vaughn v. May (Mo. App.) 274 S. W. 969 ; Boyce v. Wheeler ; Williams v. Turnbull, supra.

But, although the ruling of the court was incorrect, it does not follow that reversible error was committed, inasmuch as the ruling was made at the instance of counsel for defendant. The case having been tried upon the theory that it was solely for the jury to determine whether defendant intended to charge plaintiff with having stolen his corn and such question having been duly submitted by plaintiff's instruction No. 3, the situation is such that it is our duty to take the words alleged to have been slanderous as having been used and understood in the sense in which the jury must have found that they were used and understood in order to have a verdict for plaintiff. Boyce v. Wheeler, supra.

As to defendant's contention that his statement was privileged, it is sufficient to say that the plea of privilege is a confession and avoidance which must be raised by answer. Reese v. Fife (Mo. Sup.) 279 S. W. 415 ; Radford v. Horton, 207 Mo. App. 601, 227 S. W. 1073. It will be observed that the answer in the case at bar was a general denial, and therefore the question of privilege is not properly in the case.

But, aside from the above, we do not think that the evidence in this case discloses defendant's statement was privileged. To make the defense of qualified privilege available in an action for slander, it must appear that the statement was made in the discharge of some duty, actually existing, either public or private, either legal, moral, or to a person having a corresponding interest or duty, and was spoken in connection with and was relevant and germane to some matter involving such interest or duty ; that the statement was made in the interest or for the protection thereof ; and that it was uttered in good faith and spoken on a proper occasion from a proper motive and was based upon probable cause. Peak v. Taubman, 251 Mo. 390, 158 S. W. 656 ; Garey v. Jackson, 197 Mo. App. 217, 193 S. W. 920 ; Banta v. Mitchell (Mo. App.) 226 S. W. 286 ; Vanloon v. Vanloon, 159 Mo. App. 255, 140 S. W. 631.

Defendant argues that in making the statement to Robinson he was discharging a moral and social duty to his father and was in the exercise of his own interests and rights which seemed to be demanded by the statement of Robinson. We think, however, that this contention is untenable. Robinson was affected by, nor did he have any interest or duty (as contemplated in law) in, the acts or conduct of plaintiff. Furthermore, the fact defendant's father may have uttered a did not justify the defendant in confirming and repeating it.

Defendant's complaint that there was no proof of malice, nor of facts from which it could have been inferred, is without merit. Where false words are defamatory and actionable, or, as in this case, may properly be found to be so, and are not privileged, malice in law, which is the intentional doing of a wrongful act without just cause or excuse, is implied from the utterance thereof. Boyce v. Wheeler, supra.

Lastly, defend...