Smith v. Missouri Fidelity & Casualty Co.

• Decision Date: 04 June 1915
• Docket Number: No. 1383.,1383.
• Citation: 177 S.W. 737,190 Mo. App. 447
• Court: Missouri Court of Appeals
• Parties: SMITH v. MISSOURI FIDELITY & CASUALTY CO.

177 S.W. 737

190 Mo. App. 447

SMITH v. MISSOURI FIDELITY & CASUALTY CO.

No. 1383.

Springfield Court of Appeals, Missouri.

June 4, 1915.

Rehearing Denied June 24, 1915.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Onos Smith against the Missouri Fidelity & Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed.

John P. McGammon, of St. Louis, for appellant. Howard Ragsdale, of Ash Grove, and Patterson & Patterson, of Springfield, for respondent.

STURGIS, J.

This is a suit for libel in which plaintiff recovered $500 actual and $250 punitive damages. The plaintiff is a physician practicing his profession at Ash Grove, Mo. The defendant was located at Springfield, Mo., and issued to him a policy of insurance against loss of time from sickness. The plaintiff presented a claim under this policy, and same was paid. Soon thereafter plaintiff presented a second claim, which defendant contested on the grounds that the sickness claimed for was a mere continuation of the previous sickness, for which it had settled in full, and that, if a new sickness, the plaintiff had nut given the defendant any notice of the same, as required by the policy. This led to a lawsuit resulting in the defeat of plaintiff's claim. Soon after this, the defendant, desiring a local agent at Ash Grove, Mo., wrote a letter to J. N. Moore, a banker at that town, soliciting him to take such agency. To this letter Mr. Moore replied as follows:

"Your letter at hand offering us the agency for the Missouri Fidelity & Casualty Company. In reply will say that I do not think it advisable for me to do so for the following reasons: I think it would be better for some of your stockholders to do so as they could doubtless look after it much better than I can. I also observe that there is some friction here on account of your company standing on a technicality in Dr. O. Smith's sickness. Should I have written his sick and accident policy I would probably have lost his friendship and a few good customers. I am not arguing his case pro or con, but want to tell you that I do not think a person in the banking business can afford to write insurance and be a go-between in misunderstandings and technicalities as is often the case with insurance companies. I will try to see you the first time I come to town."

This letter was referred to W. L. Taylor, defendant's general manager, and he wrote the following reply, which is the basis of this suit:

"Your letter of August 24th to Mr. McCanse has been handed to me and I think it would be an injustice to this company and its stockholders in your city if I would permit a part of your letter to remain unanswered, and that is with reference to the claim made by Dr. O. Smith. The trouble with you people is that you don't seem to know the facts; if you knew the facts you would see at once that we handled the matter in the proper way.

"Dr. Smith had a policy in this company; he became sick and we paid him $48.00 without any objections whatever, and he signed a release, releasing us in full. Dr. Smith had a relapse, which we learned was the continuation of the illness for which we had paid him, and which he had released us in full. Quite a little while had elapsed and DT. Smith gave us notice of the second illness. Remember, now, we had paid him $48.00 for the first illness, and he had paid into this company less than $0.00, but that made no difference. His first claim was just and all right and we paid it. We denied liability under the second claim on the ground that notice Was not given us in proper time, as is required in this policy, and which is one of the conditions which he agreed to do when he accepted the policy. He came back with a reply that he was too ill and was not in position to give us notice in time, and I suppose he made his attorney believe that statement, but we know different, for the very reason that he had been in our office and had paid us a premium on his policy and had ample opportunity to notify us that he had been ill again and wanted to make the second claim. Now that is not a technicality, and I thought best to write you and give you the facts in the case for fear that you might be prejudiced against this company.

"The Missouri Fidelity & Casualty Company has taken a high standing in the insurance world. We are trying our best to treat our policy holders right. In this case we treated the doctor just as well as we possibly could. At our own expense we notified the doctor's attorney when the claim was ready for trial.

"We had no objections to trying it without a jury. We let them have their own way about it. It was not necessary for us to use any witnesses ourselves, as we proved all we wanted to prove by the doctor himself. We did not try to abuse the doctor when he was on the witness stand. We handled him just as nice as we knew how. I think he feels now that we were absolutely right in denying his claim and in fighting him as we did.

"I am sending a copy of this letter to a couple of the stockholders in your city so that they may know the facts. This company is paying its claims promptly and it is not hard for any one to get what rightfully belongs to them, but we will fight a fraudulent claim to the end." (Italics ours.)

The plaintiff in his petition alleges the publication of the words in italics and by innuendo alleges that thereby defendant meant to charge and did charge and was understood to charge the plaintiff with the crime of attempting to obtain money by false pretenses. The answer sets out the circumstances under which was written the letter of which the alleged libelous words formed a part, and states that, when the whole letter is taken together, the same is not libelous or susceptible of the meaning ascribed thereto, and that the same does not and cannot be held to charge plaintiff with the crime mentioned. The answer further claims that the writing of said letter was done without any intent to injure plaintiff but in the promotion and protection of the defendant's business and to maintain its reputation and standing, and that said letter was therefore privileged.

So far as the evidence shows, Mr. Moore, who was a friend of plaintiff, shortly after receiving the letter and without showing it to any one, handed it to the plaintiff. The plaintiff says that he gave it to his attorney in a few days, in whose her study it remained until the trial. There is evidence that both the lawsuit of plaintiff against defendant on his sick benefit claim and this letter in reference thereto were largely discussed in the town of Ash Grove. The witnesses who testified to having seen and read the letter say it was shown to them by plaintiff or his attorney. Several witnesses were allowed to testify, over defendant's objections, as to their understanding of the meaning of this letter. One witness said:

"My understanding was, from the tone of the letter, he presented a fraudulent claim, and they did not propose to pay a fraudulent claim, and would fight it. I think the letter itself is plain on the construction of it."

Another witness testified:

"It appeared to me they were charging him with trying to obtain money under false pretenses—an unjust claim. All I understood about it was there was an unjust claim he was trying to collect."

The court instructed the jury that the copies a the letter sent to the stockholders are privileged and afford no ground of action, but refused to so declare as to the original letter to Moore.

Many errors are assigned on the sufficiency of the petition, the admission of evidence, and the giving and refusal of instructions. There are, however, questions going deeper than this, and which we think are fatal to plaintiff's recovery.

The plaintiff stakes his whole case, both in the trial court and in this court, on the proposition that the alleged libelous words under the facts shown imputed to him the commission of the crime of attempting to obtain money by false pretenses, and were so intended by the writer and understood by the readers. On this issue, plaintiff wages his battle, and on this issue he must win or lose, mindful of the rule of law that a plaintiff will not be allowed to start a fresh innuendo after the trial is on, but must abide by the construction placed on the words in his petition. Newell on Slander and Libel (2d Ed.) p. 629, § 39; Skelley v. Railroad, 176 Mo. App. 156, 161 S. W. 877, and cases cited.

It is equally well settled that, if the words alleged are not reasonably susceptible of the defamatory meaning assigned to them, the court must so determine and direct a verdict. Branch v. Knapp & Co., 222 Mo. 580, 121 S. W. 93. It is for the court to say whether a publication is capable of the meaning ascribed to it by the innuendo. Newell on Slander and Libel (2d Ed.) p. 290, § 4, where the author adds:

"The whole libel should be submitted to the jury. A word at the end may alter the whole meaning. So if in one part appears something to the plaintiff's discredit, in another something to his credit, the `banc' and the `antidote' should be taken together. The law does not dwell on isolated passages, but judges of the publication as a whole." 25 Cyc. 542, 545; St. James Military Academy v. Gaiser, 125 Mo. 517, 527, 28 S. W. 851, 28 L. R. A. 667, 46 Am. St. Rep. 502.

In a case where one person accused another of stealing corn, using words slanderous per se, but on every occasion of speaking the same stated to the hearers the fact that the corn was grown by plaintiff on leased land and sold by him in violation of his agreement to apply the same on the rent, "thus sending an antidote along with the poison, and showing a mistaken view of the law, rather than a malicious purpose, the plaintiff cannot recover." Hall v. Adkins, 59 Mo. 144.

In Israel v. Israel, 109 Mo. App. loc. cit. 376, 84 S. W. 456, this language is used:

"Actionable words may he uttered concerning a party with such explanatory...