Stowers v. Western Bentley Mercantile Co.

• Decision Date: 20 May 1940
• Docket Number: No. 19565.,19565.
• Citation: 140 S.W.2d 714
• Parties: STOWERS v. WESTERN BENTLEY MERCANTILE CO.
• Court: Missouri Court of Appeals

140 S.W.2d 714

STOWERS v. WESTERN BENTLEY MERCANTILE CO.

No. 19565.

Kansas City Court of Appeals. Missouri.

May 20, 1940.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be published in State Reports."

Action by James M. Stowers against the Western Bentley Mercantile Company, for slander. From an order awarding new trial after verdict for plaintiff, plaintiff appeals.

Affirmed.

Allan R. Browne and K. L. Stockman, both of Kansas City, for appellant.

Johnson, Garnett & Quinn and Battle McCardle, all of Kansas City, for respondent.

CAMPBELL, Commissioner.

Action for slander. The plaintiff had a verdict for $1 actual and $2,500 punitive damages.

The defendant's motion for new trial was sustained on the ground that plaintiff failed to define the word "malice" in his instructions. The plaintiff has appealed.

The petition alleged that defendant on June 25, 1936, falsely and maliciously spoke of and concerning plaintiff the following false and slanderous words: "He is a dirty crook and a dead beat"; "was taking out his money and spending it for drink instead of paying his bills"; that said false statements were made by defendant on other occasions, and were made in the hearing and understanding of Charles Bessenbacher, the employer of plaintiff in the Alcohol Tax Unit of the United States Government; and that defendant stated to Bessenbacher that plaintiff was "no good, and a dead beat"; that said false and slanderous statements were also made by defendant within the hearing and understanding of Mrs. B. C. Leap; that by said statements the defendant meant to and did imply and was so understood by the persons hearing the same to mean that plaintiff was an accomplice of thieves, that he cheated and could not be relied upon in his said employment.

The action of the court in sustaining the motion for new trial on account of the failure of plaintiff's instruction to define the word "malice" cannot be sustained for the reason defendant, having failed to request the court to define the word, may not thereafter complain of the plaintiff's failure. Trepp v. State National Bank, 315 Mo. 883, 905, 289 S.W. 540.

The motion for new trial assigned the court erred in refusing defendant's request for directed verdict; erred in giving instructions on behalf of plaintiff. If any ground in the motion is well founded, then the action of the court in awarding a new trial must be sustained. Schroeder v. Rawlings, Mo.Sup., 127 S.W.2d 678.

It is sufficient to say the evidence favorable to plaintiff shows defendant published the alleged slanderous words.

It is settled law in Missouri that words spoken of a man are not actionable per se unless they charge or necessarily impute the commission of a crime; that words spoken of one in his trade or calling to be actionable per se must impute to him fraud, want of integrity or misconduct...