Starnes v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 11 November 1929
• Docket Number: No. 16709.,16709.
• Citation: 22 S.W.2d 73
• Parties: STARNES v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.
• Court: Missouri Court of Appeals

22 S.W.2d 73

STARNES v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

No. 16709.

Kansas City Court of Appeals. Missouri.

November 11, 1929.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially reported."

Suit by Lyman L. Starnes against the St. Joseph Railway, Light, Heat & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, and transferred to the Supreme Court.

Mayer, Conkling & Sprague, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

BARNETT, C.

This is a suit for slander. Appellant has not made any attack upon the pleadings, and they are therefore omitted from this statement. The evidence most favorable to plaintiff is to the effect that plaintiff is a railroad conductor who has lived at 3912 Terrace avenue, St. Joseph, Mo., since April, 1924. During the forenoon of January 6, 1928, two employés of defendants came to plaintiff's residence to inspect his electric meter. After the inspectors had been in the house about 20 minutes, one of them asked the plaintiff if he knew anything about a hole in the meter, and plaintiff answered: "No, I don't." The inspector then showed plaintiff a small hole in the meter, and said, "I'll have to report it." The plaintiff told him to go ahead.

Shortly thereafter the plaintiff was called to make his "run" as a conductor. He left home at about 12:40 p. m. and returned about 4 o'clock the next day. When he returned he became apprised of the fact that defendant had cut off the current and that his wife had been in the house without lights all night, whereupon he went to the office of defendant, asked who he should see concerning the removal of the meter, and was told that he should see Mr. Ballard whose office was on the second floor of the building. He went to the second floor, a lady came to the counter, and asked his business, and he answered that he would like to see Mr. Ballard. In a few minutes a gentleman stepped over to the counter and said that he was Mr. Ballard. Plaintiff said his name was Starnes, and that he came to see why the meter was removed from his residence. Mr. Ballard answered: "For the simple reason you have been tampering with it. You have tampered with it." Plaintiff said: "You are mistaken, I have not." Ballard answered, "Yes, you have." Plaintiff said: "I haven't done nothing of the kind." Ballard replied. "You sure have or some one of your family;" and then he turned around and walked to a desk, opened a door and pulled out what plaintiff supposed to be the same meter, took up a pencil, and said: "You put that hole in there; only one could put that hole in that meter. It had been inspected— or some one in your family." Mr. Ballard also said: "You have been obtaining power and light fraudulently and we will not turn it on until you deposit $50.00." Plaintiff testified that he asked what the $50 was for and Mr. Ballard answered: "For power you obtained fraudulently and installing a new meter and damage to the old meter." Plaintiff said: "I don't think it is right. I haven't done anything to the meter. Haven't tampered with it." Mr. Ballard replied: "Undoubtedly you have, the hole shows for itself." Plaintiff testified that at the time of the conversation Mr. Ballard was waiting on a lady standing beside him, right beside the counter, and two or three other people were standing outside. Plaintiff was asked whether the other people could hear the conversation. He answered: "They surely could, could hear it over the entire room."

Plaintiff testified that Mr. Ballard then signed a paper for the young lady and invited plaintiff into his office. They went into the private office, and Mr. Ballard sat down and took out some papers and asked him to read them, and they pertained to the law for damaging meters. Plaintiff stated that he was not interested, and had not tampered with the meter. Mr. Ballard told him that he had better read them, but, when plaintiff said he did not care to, Mr. Ballard said: "I'll read this paragraph to you." Plaintiff insisted that this was a waste of time because he was not interested; that he came to see about getting light for his house. Mr. Ballard finally said that the lights would be put back for $18, which was for installing a new meter, sealing the meter, $2 damages to the old meter, $15 for installing the new meter. Upon being told that that was the only way he would get light, plaintiff deposited that amount under protest.

There was evidence that Mr. Ballard stated in the private office that defendant had a record showing that three years ago his wife called in saying she had broken some seals. Plaintiff insisted that this was not so, and that his wife had not called at the office. He stated that his wife was sitting in the car, and that he would go down and ask her. Plaintiff then left the office and told his wife of this occurrence, whereupon she came up to the office with the plaintiff and denied what had been said about her, and at that time Mr. Ballard again said: "You are the only ones that could put that hole in the meter. It was inspected when you moved in and it was impossible for them to overlook that hole."

During the opening statements, attorney for plaintiff made the statement in the presence of the jury: "After that a man named Harrington says: `We'll give your $18.00 back if you sign a release.'" Whereupon defendant moved the discharge of the jury and objected to the statement upon the ground that it was an attempt upon part of counsel to state to the jury an offer of compromise made by defendant. This objection was overruled. Plaintiff testified that, after he had paid the $18 under protest, he called at Mr. Harrington's office in the general offices of defendant and talked to him about the matter. Mr. Harrington had the meter brought in, and, after looking it over, he said: "That hole could be very easily overlooked when they inspected it before. It is so small." After some conversation, Mr. Harrington said he would look into the matter and thought he could refund plaintiff's $18. Later Mr. Harrington told him by telephone that he could come up to the office any time he wanted to and get his money. Pursuant to this conversation, plaintiff again called at the office of defendant, and Mr. Ballard presented to him a form for his signature releasing the defendant from all damages; whereupon plaintiff said: "I'll never sign that. I'll lose my $18.00. If you people feel that way I'll see what I can do;" and then left the office. This testimony was objected to, and defendant moved the court to strike out all of the testimony, for the reasons mentioned at the time the objection was first made, at the time the opening statement was made. The objection was overruled. Both Mr. Starnes and his wife testified that they had not put the hole in the meter or tampered with it in any way.

Defendant's testimony, so far as pertinent to the assignments of error, was as follows: Virgil Lilly testified that he lived in the house occupied by plaintiff, having vacated the premises just before the plaintiff and his wife moved in, and at no time did he or or any of his family put the hole in the meter. Mrs. Lilly testified to the same effect.

Mr. Wood, one of defendant's inspectors, testified that he cut out the service for Mr. Lilly and cut in the service for plaintiff, and that he inspected the meter at that time, and that it was then in good condition; that there was no hole in the meter at the time plaintiffs moved into their residence. Other inspectors gave evidence tending to show that there was no hole in the meter at the time plaintiff and his wife moved in the house. Mr. Ballard testified that he was chief clerk for defendant. He denied that he said the words which we have set out as testified to by plaintiff. He also testified that he took plaintiff into a small office and talked to him in an ordinary tone of voice; that there were about three bookkeepers out in the customer's room at the time he was talking to plaintiff, but that the door was open. He testified that Mrs. Davis, a bookkeeper, was about 10 feet away when he was talking to the plaintiff, and that she was the nearest person at the time of the conversation. Mrs. Davis testified that she could not hear the conversation, and that she was the closest one to plaintiff and Ballard. She also testified that, when Mr. Ballard first came in and spoke to Mr. Starnes outside, she could not hear anything that was said.

The instructions which are under attack are as follows:

Instruction No. 1: "If you find and believe from the evidence in this case that Kenyon V. Ballard on or about the 7th day of January, 1928, was an agent and employé of the defendant company; and you further find that while he was engaged in the course of defendant's business, and while acting within the scope of his employment and in the actual performance of his duties for the defendant, touching the removal of the meter mentioned in evidence from the plaintiff's premises, in the presence and hearing of plaintiff and divers other persons maliciously spoke of and concerning the plaintiff the following language and words: `Yes, we removed that meter on account of your having tampered with the meter.' `You sure have.' `You or your family have.' `You are the only one that could put a hole in the meter, as it had been inspected, or some one of your family.' `You have been obtaining light, heat and electricity fraudulently, and we shall not turn the power on in your home until you deposit with us fifty dollars.' And if the jury further find and believe from the evidence that said language and words and charge were false and untrue, and that neither plaintiff nor any member of his family tampered with the meter, or put a hole in the meter or obtained light, heat and electricity fraudulently, then your verdict will be for the plaintiff."

Instruction No. 4: "The court instructs the jury that if...