State ex rel. United Factories v. Hostetter, 36222.
| Decision Date | 01 April 1939 |
| Docket Number | No. 36222.,36222. |
| Parties | STATE OF MISSOURI at the relation of UNITED FACTORIES, INC., Relator, v. JEFFERSON D. HOSTETTER, WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals. |
| Court | Missouri Supreme Court |
v.
JEFFERSON D. HOSTETTER, WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals.
Certiorari.
WRIT QUASHED.
[126 S.W.2d 1174]
M.W. Borders, Jr., and Ethan A.H. Shepley for relator; Borders, Warrick & Hazard and Nagel, Kirby, Orrick & Shepley of counsel.
(1) The Court of Appeals in holding that the issue as to punitive damages was improperly submitted because defendant did not actively participate in the wrongful act of his sales manager is in direct conflict with the line of decisions of this court holding that punitive damages may be allowed against a master although he does not specifically authorize or directly participate in the wrongful act. Buckley v. Knapp, 48 Mo. 152; Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. 737; Rouse v. Railroad, 41 Mo. App. 298; Leahy v. Davis, 121 Mo. 227; McNamara v. St. Louis Transit Co., 182 Mo. 676; 17 C.J. 989, 990; 2 Sutherland, Damages (4 Ed.), p. 410; Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020; Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095; Peak v. Taubman, 251 Mo. 390, 158 S.W. 656. (2) The Court of Appeals in holding that the letters offered in evidence to prove the understanding or condition of mind of the senders were hearsay and inadmissible is in direct conflict with decisions of this court holding that such letters come within an exception to the hearsay rule. Reese v. Fife, 279 S.W. 415; O'Leary v. Scullin Hotel Co., 260 S.W. 55, 303 Mo. 363; State v. Loehr, 93 Mo. 103, 5 S.W. 696; 22 C.J. 261, 279, 281, 284; 3 Wigmore on Evidence (1904 Ed.), sec. 1790, p. 2315. (3) The Court of Appeals erred in holding that the letters introduced in evidence were not properly identified for the reason that the decisions of this court hold that such letters are reply letters and are admissible without further identification. State ex rel. Peters v. Reynolds, 214 S.W. 121; State ex rel. Brotherhood of Amer. Yeomen v. Reynolds, 229 S.W. 1057, 287 Mo. 169; Russell & Co. v. State Ins. Co., 55 Mo. 585.
Wayne Ely and Lyon Anderson for respondents; Leahy, Walther, Hecker & Ely of counsel.
(1) On a writ of certiorari to an appellate court, the determination of error is limited to the finding of a conflict between the Court of Appeals' opinion and the latest ruling opinion of the Supreme Court on the subject either as to a general principle of law announced, or as to a ruling under a like, analogous, or similar state of facts. State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; State ex rel. Kroger Gro. & Baking Co. v. Haid, 18 S.W. (2d) 478. (a) Respondents' opinion does not announce any general principle of law contrary to any previous controlling opinion of this court. (b) Respondents' opinion does not announce any rule of law contrary to any ruling by the Supreme Court under like, analogous or similar state of facts. In the opinion in the case under review it is shown by plaintiff's own evidence that there was a lack of malice on the part of defendant, a fact which is absent from the cases cited and relied upon by relator. (c) Under the controlling decisions of this court, no master, whether corporate or otherwise, can be compelled to respond in exemplary damages for the malicious act of his servant unless the master has directed the particular act to be done, or ratifies it after it is done. Perkins v. Railroad, 55 Mo. 201; Graham v. Railroad, 66 Mo. 536. But if the foregoing rule does not apply, the opinion under review does not conflict with any previous controlling decision of this court. The instant opinion merely holds that where plaintiff's own evidence shows repudiation of the servant's act, malice on the part of the master will not be implied. (2) The respondents' holding that the letters set out in the opinion were hearsay, and inadmissible, does not contravene any previous controlling decision of this court. Unsworn statements of persons not parties to suit are hearsay. Gordon v. Burris, 141 Mo. 602; Home Exchange Bank v. Koch, 32 S.W. (2d) 86, 326 Mo. 369; Hely v. Hinerman, 260 S.W. 471, 303 Mo. 147; Howell v. Sherwood, 242 Mo. 513. (3) The respondents' holding that a letter offered in evidence does not prove itself, but that it is necessary for the party seeking its admission into evidence to offer some proof of its authenticity and genuineness does not contravene any previous controlling decisions of this court. (a) This court cannot look beyond the opinion of the Court of Appeals for evidentiary facts in determining whether such opinion conflicts with Supreme Court decisions. State ex rel. Ward v. Trimble, 39 S.W. (2d) 372, 327 Mo. 773; State ex rel. St. Louis-San Francisco Ry. Co. v. Cox, 46 S.W. (2d) 849, 329 Mo. 292. (b) The opinion fails to show that the letters in question were introduced as reply letters and that relator urged that point before the Court of Appeals. On certiorari, this court need not consider the question whether the ruling of the Court of Appeals conflicts with prior opinions, where from the opinion of the Court of Appeals it does not appear that the point urged was ever presented to the Court of Appeals. State ex rel. Mo. Mut. Assn. v. Allen, 78 S.W. (2d) 862, 336 Mo. 352. (c) The opinion under review merely holds that letters offered in evidence do not prove themselves. This is sound law. 22 C.J. 906; Lentz v. N.Y. Life Ins. Co., 100 S.W. (2d) 588; Welch v. Fraternal Aid Union, 214 Mo. App. 443; Royle Mining Co. v. Fid. & Cas. Co., 161 Mo. App. 185; Wheat v. Wheat, 279 S.W. 755.
FERGUSON, C.
This is an original proceeding by certiorari. The relator prays this court to quash the opinion and judgment of the St. Louis Court of Appeals in the case of United Factories, Inc., v. Brigham (Mo. App.), 117 S.W. (2d) 662, which was an action for damages for libel. The plaintiff therein had verdict for $4000 actual damages and $1000 punitive damages, and judgment thereon. Upon defendant's appeal, the St. Louis Court of Appeals reversed the judgment and remanded the cause, whereupon at the instance of plaintiff, as relator, we granted the writ herein.
[1] In this kind of a proceeding, we look to respondents' opinion for the facts and accept same, as therein stated, as the facts of the case ruled. The plaintiff (relator here), a corporation, was engaged in the manufacture and sale of an oil burner known as "The Heat King Oil Burner." The sole defendant James W. Brigham, was also engaged in the manufacture and sale of an oil burner, "doing business under the trade name of Brigham Oil Burner Company." It will be noted that the Brigham oil burner business was not carried on "by a corporation, nor by a company" but individually by defendant Brigham under the trade name. Both plaintiff and defendant "contacted prospective purchasers, through advertising in newspapers and magazines, and such purchasers became agents for further sales in their respective localities." Albert Kaysing, the sales manager, and one Goldstein were "in active charge" of the Brigham oil burner business. In the course of his employment, as sales manager for defendant Brigham, Kaysing "issued" and "sent out" "Confidential Bulletin No. 62," which is the basis of plaintiff's action for libel. The bulletin is set out in full in respondents' opinion. It suffices here to say that it referred to and compared certain other types of oil burners, then being advertised and sold, with the Brigham burner to the advantage of the latter and made certain statements in reference to such other oil burners which plaintiff alleged to be "false, malicious and libelous." "The bulletin did not refer to plaintiff or its product by name" but plaintiff's petition alleged that certain...
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