Swoboda v. Nowak

• Decision Date: 06 November 1923
• Docket Number: No. 17996.,17996.
• Parties: SWOBODA v. NOWAK et al.
• Court: Missouri Court of Appeals

255 S.W. 1079

213 Mo. App. 452

SWOBODA v. NOWAK et al.

No. 17996.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Appeal from Circuit Court, Franklin County; A. Breuer, Judge.

Action by Margaret Swoboda against Louis S. Nowak and Jacob Nowak. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded.

W. L. Cole and F. W. Jenny, both of Union., and James Booth, of Pacific, for appellants. F. H. Kasmann and J. M. Owen, both of Union, for respondent.

ALLEN, P. J.

This is an action upon a promissory note for the sum of $200 executed by the defendants, Jacob Nowak and Louis Nowak, father and son, on October 5, 1921, payable to the order of the plaintiff, Margaret Swoboda, three months after the date there of. The trial, before the court and a Jury, resulted in a verdict and judgment for plaintiff for the amount of the note and interest, and the defendants have appealed.

The petition is in the usual form. The answer admits the execution of the note, but pleads that at the time of the execution thereof defendants were not indebted to plaintiff in any sum; that plaintiff and members of her family claimed that the defendant Louis S. Nowak had made certain derogatory remarks concerning plaintiff and one Cecelia Schlitt, and threatened that they would "bring a state case" against these defendants and would send defendant Louis Nowak to the reform school and that defendant Jacob Nowak would lose both of his farms. And defendants alleged that, being cowed, frightened, and intimidated by said threats, they executed the note sued upon; that the note is without consideration, was procured by duress, and is void. And the defendant Louis Nowak pleads that at the time of the making of the note he was an infant under the age of 21 years. The reply admits that defendant Louis Nowak is an infant and denies generally the other allegations of the petition. Plaintiff introduced the note in evidence and rested.

In defense the defendant Louis Nowak testified that he was then 19 years of age, and that he and his father signed this note at the office of a notary public in Washington, Mo.; that on the night prior to the execution thereof, upon the demand of plaintiff and members of her family, he and his father and mother went to the home of plaintiff's parents where were present plaintiff and one Cecelia Schlitt, both young women, and members of their respective families; that plaintiff accused this defendant of having made a slanderous statement about her to Cecelia Schlitt, demanded an apology and money damages, and said that if he did not want to settle it that way she would sue him "on state's case for $2,000," which would probably take both his father's farms; that defendant denied having made any such statement about plaintiff, but plaintiff said that she did not believe him; that plaintiff's father repeated what plaintiff had previously said about suing on state's case; and that Cecelia Schlitt and her mother took part in the conversation saying that they demanded that money be paid to them. And the witness testified that his father therefore said that it would be better to settle the matter, and suggested a meeting on the following day in Washington, Mo., and that on the following day the defendants went to the office of one Thais, a notary in Washington, where they executed the note in suit, defendant Louis Nowak signing also the following statement which was introduced in evidence by defendants, viz.:

"I, Louis Nowak, hereby confess and declare that all indecent remarks and slanderous talk I have said about Miss Margaret Swoboda and Miss Cecelia Schlitt was solely made up by myself and is absolutely untrue and without any foundation whatsoever. I hereby apologize to said Miss Margaret Swoboda and Miss Cecelia Schlitt for everything I have said about them, and promise upon my name and honor never to say it again."

Defendant Louis Nowak further testified that he was not told what "these girls" understood that he had said about them, and that he was frightened when he signed the note and the statement, and on cross-examination he denied that he had been guilty of improper conduct toward Cecelia Schlitt, or that he had made to her the slanderous statement as to plaintiff concerning which Cecelia Schlitt subsequently testified, and denied having admitted on the evening prior to the execution of the note that he had made such statement.

Defendant Jacob Nowak testified that at the meeting at the Swoboda home plaintiff and members of her family threatened to have his son arrested and said that if the defendants did not want to settle the matter for $200 plaintiff's father would make a state's case out of it, and that thereupon he and his son, agreed to execute the note, and did so on the following day.

The testimony of the wife of defendant Jacob Nowak is to the same general effect as that of defendants concerning what occurred at the Swoboda home.

In rebuttal Cecelia Schlitt testified for plaintiff. Her testimony is to the effect that one evening in the summer prior to the execution of the note she saw defendant Louis Nowak at a party; that he asked her to walk out with him to get a drink, which she did, whereupon he undertook to take liberties with her person, and made an indecent proposal to her, and that when she spurned him he said: "Why, that is nothing; I have done it with Margaret Swoboda." And the witness testified that she subsequently informed this plaintiff of what occurred upon that occasion. She further testified that at the meeting on the evening prior to the execution of the note defendant Louis Nowak at first denied having made such statement concerning plaintiff, but subsequently, being urged by his father to admit it if he had done so, said: "I will take this to my soul that I have said it." And she said that defendant Jacob Nowak said he would "pay it and settle it all in a quiet way," and defendant Louis Nowak agreed to sign a retraction, and that on the following day, in the notary's office, defendant Jacob Nowak said that he had no money, but would sign a note if that was satisfactory.

On cross-examination she said, in substance, that she and plaintiff claimed that the defendants were liable to them for money damages, and that they were seeking to collect the same. She denied that anything was said about bringing a criminal prosecution against Louis, but said that she wanted Louis' father to know that she knew that his conduct amounted to a criminal offense.

Plaintiff testified that, having been told by Cecelia Schlitt of the statement said to have been made concerning her by defendant Louis Nowak, she met the latter at a picnic, charged him therewith, and demanded that he retract the same, but he refused to do so, saying that he was a minor and plaintiff couldn't hurt him. Her testimony as to what occurred at the meeting at the home of her parents is to the same effect as that of Cecelia Schlitt; that nothing was said as to sending Louis to the reform school or prosecuting him; and that no threats were made at the office of the notary. Her testimony shows that about a month after the execution of the note defendants demanded its return. On cross-examination she said that she and Cecelia Schlitt had agreed that they "would let the old man (Jacob Nowak) know that the boy had been guilty of a criminal offense," and that she might prosecute him for it; that she knew that what Louis had done was against the law and that she could have him arrested and prosecuted.

We need not refer to the testimony of plaintiff's father, except to say that he testified positively that at the meeting at the Swoboda home nothing was said about bringing a state's case against Jacob Nowak, and that nothing was said about sending Louis to the reform school or prosecuting him, though the witness said that he knew that "if Louis had done the things that these girls had said he did that he had committed a crime."

The testimony of plaintiff's brother, George Swoboda, corroborated that of plaintiff as to what occurred at the picnic mentioned above. And his testimony, as well as that of witnesses for plaintiff other than those mentioned above, is to the effect that at the meeting at the Swoboda home nothing was said about any criminal prosecution; that the meeting was for the purpose of insisting upon the payment of money damages to this plaintiff and to Cecelia Schlitt.

I. At the close of all the evidence in the case defendants requested an instruction peremptorily directing a verdict for them, which was refused, and such refusal is assigned as error here. It is argued, in substance, that from the evidence as a whole the conclusion is irresistible that plaintiff and Cecelia Schlitt conspired to extort money from the defendants by threatening to prosecute the minor defendant, and that the note in suit was obtained by such threats of this character as to constitute duress. While there was evidence tending to support the affirmative defense, we think it too plain for extended discussion that the court could not with propriety have directed a verdict for defendants on the ground that such defense was conclusively established.

II. The giving of plaintiff's instruction No. 1 is assigned as error. This instruction is as follows:

"The court instructs the jury that if you believe and find from the evidence that on or about the 5th, day of October, 1921, defendant Louis Nowak told Cecelia Schlitt that he, the said Louis S. Nowak, had had sexual intercourse with plaintiff, and that said statement was untrue, then and there accrued to plaintiff a cause of action for damages against Louis S. Nowak for and on account of, said defamatory statement; and the court further instructs the jury that if you believe and find from the evidence that defendant, Jacob Nowak, is the father of Louis S. Nowak and that the said Louis S. Nowak is a minor under the age of 21 years, and that the said Jacob Nowak agreed with p...