Skelley v. St. Louis & San Francisco Railroad Company
| Decision Date | 11 December 1913 |
| Parties | J. A. SKELLEY, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number One.--Hon Joseph D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
Shannon & Phelps for appellant.
(1) An innuendo may be treated as surplusage where it is used in connection with words which are unequivocal and actionable per se, and where plaintiff has, in action for libel, by an innuendo, put a meaning on the alleged defamatory matter which is not supported by its language or by proof, the court may, nevertheless, submit the case to the jury, if the publication is defamatory per se. Callahan v Ingram, 122 Mo. 355; Cook v. Globe Printing Co., 227 Mo. 525. (2) The word "confiscate" when used to characterize the act of an individual, is always used in reprobation of such act, and it is therefore libelous per se. (3) In order to be libelous per se, it is not essential tat words should involve an imputation of crime. 25 Cyc. 253; McGinnis v. Knapp, 109 Mo. 131; Sullivan v. Commission Co., 152 Mo. 268. (4) Whenever the libelous intent, or seeming libelous intent appears, though dimly and vaguely, as "through a glass darkly" the question becomes one for the jury to say whether the meaning was libelous or defamatory. McGinnis v. Knapp, 109 Mo. 150.
W. F. Evans and Mann, Todd & Mann for respondent.
(1) From the meaning of the word "confiscate" it is impossible for an individual to confiscate anything. Ware v. Hylton, 3 U.S. 199, 234, 1 L.Ed. 568, 584; State ex rel. v. Sargent, 12 Mo.App. 228, 234; Trimble v. Foster, 87 Mo. 49; Hall v. Adkins, 59 Mo. 148; Newell on Slander and Libel (2 Ed.), 117; Ogden v. Riley, 14 N. J. L. 186; Upham v. Dickenson, 50 Ill. 97; Carmichael v. Shiel, 21 Ind. 66; Allen v. Hillman, 12 Pick. (Mass.) 101. (2) The word "confiscate" is not actionable per se. 25 Cyc. 304, et seq.; Diener v. Star Chronicle Pub. Co., 232 Mo. 416, 428; Diener v. Star Chronicle Pub. Co., 230 Mo. 613.
Action for libel. No evidence was offered except by plaintiff. The court sustained a demurrer to this evidence, resulting in plaintiff's appeal.
The pleadings and evidence may be considered together. The words charged as constituting the libel are "For 8 company fence posts at 10c confiscated by shipper, 80," and this language is alleged to have been one item and part of a freight bill sent by the defendant for collection to the consignee of a car of walnut logs shipped by plaintiff over defendant's railroad. The matter arose in this way: The plaintiff was engaged in shipping walnut logs and in November, 1912, shipped a carload from Verona, Missouri, consigned to a firm in Kansas City; the plaintiff used eight fence posts in loading the logs and securing them on the car; the local agent of defendant at Verona erroneously thought that plaintiff used posts belonging to defendant from a pile of such posts on its right of way. In making out the waybill he made notation of same in the language above set out with the item of freight charges and other items and forwarded same to the defendant's office at Kansas City. A freight bill was then made out by a clerk of defendant in the Kansas City office, who it was agreed did not know and had never heard of defendant, and presented it to the consignee for payment and the same was paid. This freight bill is as follows:
FREIGHT BILL.
Consignee: Penrod Walnut and Veneer Company,
To St. Louis & San Francisco Railroad Co., Dr.
Billing Station, Verona. Consignor: J. A. Skelley.
Road issuing Waybill: St. L. & S. F. R. Co.
77 walnut logs, freight charges
$ 67.41
5 days demurrage at Verona
5.00
For 8 company fence posts, at 10c
Confiscated by shipper
.80
For rearranging logs, etc.
9.25
Total charges
This freight bill contains the alleged libel and its presentation to this consignee for payment constitutes its only publication.
The plaintiff proved that the fence posts in question were not the property of defendant as defendant's local agent supposed, but that he bought the same from a local dealer at Verona. The local agent, who made out the waybill from which this and other items were copied into the freight bill above set out, was a witness for plaintiff and testified: That the word confiscated as used upon this bill is a term used by railroad men generally to show that company property has been used by the shipper, and that if it was taken away on the car the agent of the company at the destination was to collect the value of the property so used. It is not used by railroad men generally to mean that the property has been stolen, but simply to keep track of the railroad company's property. When I used the word confiscated on this bill I did not intend to indicate that Mr. Skelley had stolen these posts. I used it for the purpose of informing the agent at Kansas City that there were eight fence posts on this car belonging to the railroad company, and that if the consignee took them away he was to pay their value, which was eighty cents. I always understood it to mean when you wanted anything you just went and took it and suffered the consequences, that is took it with the understanding that it wasn't mine, but that I would use it and would expect to make good to the owner whenever he called on me for it.
The petition in this case is somewhat different from the usual form of charging that defendant falsely and maliciously published of and concerning the plaintiff the defamatory words, setting them out in haec verbae, thereby meaning and intending to charge, etc.--setting out whatever libelous meaning the plaintiff thinks the words will support. In this case it is charged thus: "Plaintiff further says that in loading said car with said logs he used eight fence posts for the purpose of securing said logs on said car, but that said fence posts belonged to the plaintiff and not to the defendant, and that by sending said freight bill to said consignee containing said words and figures, viz.: 'For 8 company fence posts at 10c confiscated by shipper, 80,' the defendant falsely and maliciously intended to charge and publish, and did charge and publish, that the plaintiff had unlawfully taken, stolen and carried away eight fence posts belonging to the defendant of the value of eighty cents and that the said words and figures were so understood by said consignee and its officers and servants."
There was no proof whatever as to the way in which the consignee or anyone else understood these words. The plaintiff concedes this and says that this innuendo (?) may be treated as surplusage in that the words are unequivocal and actionable per se and can be stripped of the useless luggage contained in the innuendo and still make a case for the jury. This concedes that the language and proof does not support the meaning and charge given by the innuendo, to-wit, larceny. But plaintiff contends that the words charged are inoculated with and carry their own, though different, poison amounting to slander under the statutory definition, section 4818, Revised Statutes 1909, to-wit:
This definition is not different from the common law definition as is pointed out in Kenworthy v. Journal Co., 117 Mo.App. 327, 335, 93 S.W. 882, where it is said that the object and purpose of the statute is to make all libels misdemeanors, i. e., criminal, and not to make any publication libelous that was not such at common law.
In Callahan v. Ingram, 122 Mo. 355, 366, 26 S.W. 1020, the court said:
In Ukman v. Daily Record Co., 189 Mo. 378, 394, 88 S.W. 60 the court said: ...
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