Starnes v. St. Joseph Ry., L.H. & P. Co.
| Citation | 52 S.W.2d 852 |
| Decision Date | 03 September 1932 |
| Docket Number | No. 30296.,30296. |
| Court | United States State Supreme Court of Missouri |
| Parties | LYMAN L. STARNES v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant. |
Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.
REVERSED AND REMANDED.
Mayer, Conkling & Sprague for appellant.
(1) (a) There is no evidence that the slanderous words alleged in the petition and submitted in plaintiff's instruction were communicated to and understood by any one. Walker v. White, 192 Mo. App. 17; Traylor v. White, 185 Mo. App. 325; Cameron v. Cameron, 162 Mo. App. 114; Lemaster v. Ellis, 173 Mo. App. 332; Boyce v. Wheeler, 161 Mo. App. 504; Allen v. Gas Light Co., 209 Mo. App. 173; Nichols v. Railroad Co., 232 S.W. 277. (b) The words stated in the presence of plaintiff's wife (but not believed by her) are not the slanderous words alleged in the petition, and there is a consequent failure of proof. See Authorities under 1a above. (2) The court erred in permitting plaintiff's counsel, in his opening statement to the jury, to state to the jury that the defendant had made an offer of compromise over the objection and exception of the defendant. Sterrett v. Ry. Co., 225 Mo. 115; Jacks v. Link, 291 Mo. 295; Smith v. Shell, 82 Mo. 220; Basset v. Moberly Paving Brick Co., 268 S.W. 647; Marshall v. Taylor, 168 Mo. App. 247; Engel v. Powell, 154 Mo. App. 238. (3) The court erred in permitting counsel for plaintiff, in his argument to the jury, to go outside of the record and the evidence in the case and make improper and prejudicial remarks, statements, charges and insinuations, and in permitting such remarks, statements, charges and insinuations to be considered by the jury, and the court further erred in overruling defendant's objections to such argument, in refusing to rebuke counsel for such argument and in refusing to discharge the jury, all over the objections, exceptions and protests of the defendant. Monroe v. Railroad Co., 297 Mo. 644; Haake v. Milling Co., 168 Mo. App. 177; Stubenhaver v. Rys. Co., 213 S.W. 144; Jackson v. Railroad Co., 206 S.W. 244; Torreyson v. United Rys. Co., 144 Mo. App. 626; O'Hara v. Lamb Const. Co., 197 S.W. 163; Kinney v. Railway Co., 261 Mo. 97; Haynes v. Town of Trenton, 108 Mo. 163; Massengale v. Rice, 94 Mo. App. 430; Evans v. Town of Trenton, 112 Mo. 390; Beck v. Railroad Co., 129 Mo. App. 7; Bergfeld v. Dunham, 201 S.W. 640. (4) The court erred in giving to the jury instruction number four, given at the request of the plaintiff, over the objection and exception of the defendant. The instruction assumes as a fact (1) that the alleged slanderous words were false, (2) that the alleged slanderous words were spoken by Ballard, (3) that Ballard was acting within the scope of his employment in the performance of his duties, (4) that the alleged slander was uttered in the presence of other persons, and (5) instructed the jury to believe the words to be false and untrue Mc Keon v. Natl. Cas. Co., 216 Mo. App. 507; Warner v. Railroad Co., 218 Mo. App. 351; State ex rel. Ins. Co. v. Cox, 307 Mo. 194; Boland v. Frisco, 284 S.W. 144.
Mytton & Parkinson for respondent.
(1) There was sufficient evidence of publication introduced to warrant submission of the case to the jury, and plaintiff's Instruction 1 required the jury to find every essential fact necessary to sustain a verdict. Cameron v. Cameron, 162 Mo. App. 114; Clements v. Maloney, 55 Mo. 359; Callahan v. Ingram, 122 Mo. 363; Carpenter v. Hamilton, 185 Mo. 612; Mock v. American Ry. Exp. Co., 296 S.W. 859; Israel v. Israel, 109 Mo. App. 382; Allen v. Edward Light Co., 209 Mo. App. 165. The words spoken by Ballard in the presence and hearing of other diverse persons being actionable per se and being unambiguous and plain, are to be taken in the sense which is most obvious and natural, and the testimony of hearers as to what they understood said defamatory words to mean is inadmissible. Foster v. Aubuchon, 221 S.W. 741; Everhart v. Bryson, 244 Mo. 507; 37 C.J. 71, sec. 463; Israel v. Israel, 109 Mo. App. 366; McCollum v. Smith, 199 S.W. 271; Rohr v. Riedel, 210 Pac. 644; Jones v. Banner, 172 Mo. App. 138; Andreas v. Hinson, 157 Iowa, 43. (2) The evidence that Mr. Harrington, one of defendant's head officers, stated that the company would return to plaintiff the $18 taken from him by Ballard was not an offer of compromise in any sense, but if it was, it was properly admitted in evidence because it was not made without prejudice or under the faith of pending treaty. Moore v. Gaus & Sons Mfg. Co., 113 Mo. 111; Paris v. Waddell, 139 Mo. App. 291; F.R. Newberry v. Mo. Granite & Const. Co., 180 Mo. App. 672; Joseph P. Chio v. Schaper Bros. Merc. Co., 180 Mo. App. 686. (3) Plaintiff's Instruction 4, "providing that if you find for the plaintiff, you will assess his damages," etc., was proper, as it assumed no fact not covered by plaintiff's Instruction 1 predicating a verdict. Burke v. Robinson, 271 S.W. 1007; Henry v. Railroad Co., 3 S.W. (2d) 1007; Powell v. Railroad Co., 255 Mo. 453; Bealls v. Railways Co., 228 S.W. 837. (4) Defendant was given greater latitude in its defense than was justified, for the reason that the issue of justification was submitted to the jury by defendant's instructions, when in fact no proper plea of justification was contained in defendant's answer. Reese v. Fife, 279 S.W. 415.
Lyman L. Starnes sued St. Joseph Railway, Light, Heat & Power Company for slander and obtained a judgment in the Buchanan County Circuit Court for $518 actual damages and $250 punitive damages. Defendant appealed to the Kansas City Court of Appeals where the judgment was reversed and the cause remanded. [Starnes v. St. Joseph Ry., Light, Heat & Power Co., 22 S.W. (2d) 73.] Deeming its decision contrary to the previous decisions of the Springfield Court of Appeals in Paris v. Waddell, 139 Mo. App. 288, 123 S.W. 79, and Hilburn v. Insurance Company, 140 Mo. App. 355, 124 S.W. 63, and contrary to the decision of the St. Louis Court of Appeals in the case of Lehmann v. Hartford Fire Ins. Co., 183 Mo. App. 696, 167 S.W. 1047, the Kansas City Court of Appeals certified and transferred the cause to this court on its own motion, and it is now properly before us for all purposes. [Sec. 6, Am. of 1884, Art. VI, Constitution of Missouri.]
The petition pleads that on January 7, 1928, and prior thereto, plaintiff lived in St. Joseph and purchased electricity for lighting his home from the defendant; that on January 6, 1928, defendant's meter inspectors called at plaintiff's home and inspected the meter; that after such inspection, said inspectors claimed that the electric meter had been tampered with; that the electric current was cut off from plaintiff's home on January 6, 1928, at one P.M., and remained cut off until seven P.M. on January 7, 1928; that on January 7, 1928, plaintiff called at the defendant's office to inquire the reason for cutting off the electric current, and that while there, one of defendant's agents "while acting within the scope of his employment and in the actual performance of his duties thereof touching the matter in question in the presence and hearing of plaintiff and divers other persons, whose names are unknown to plaintiff, falsely, wantonly and maliciously spoke of and concerning the plaintiff the following false, malicious and defamatory words, to-wit:
Defendant's answer contained a specific denial of the words alleged; admitted that plaintiff had been one of defendant's electric customers; alleged that the electricity furnished was intended to be measured through an electric meter; that said meter was inspected on January 5, 1928, and was found to have been damaged and tampered with since its last inspection, and after its installation; that on January 6, 1928, defendant removed said damaged meter; that plaintiff came to defendant's office and was informed that the meter was removed because it had been tampered with and damaged; that whatever was said by defendant's agent to plaintiff was said without malice and only in an effort to explain to plaintiff the reason for the removal and the cost of installation of a new meter and safety switch.
[1] Appellant's first point is that the court erred in refusing to sustain Instruction B, in the nature of a demurrer to the evidence; appellant contending that "there is no evidence that the slanderous words alleged in the petition and submitted in plaintiff's instruction were communicated to and understood by any one," and that "the words stated in the presence of plaintiff's wife (but not believed by her) are not the slanderous words alleged in the petition, and there is a consequent failure of proof." In ruling such a demurrer the evidence must be considered in the light most favorable to plaintiff, and for that purpose we quote as follows from the statement of the evidence appearing in the opinion of the Kansas City Court of Appeals:
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