The State ex rel. Harriman v. Reynolds

• Decision Date: 02 February 1918
• Citation: 200 S.W. 296,273 Mo. 131
• Parties: THE STATE ex rel. WILLIAM HARRIMAN v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

200 S.W. 296

273 Mo. 131

THE STATE ex rel. WILLIAM HARRIMAN v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

February 2, 1918

Writ quashed.

Brownrigg Mason & Altman, Henderson & Henderson, Vincent McShane and John M. Goodwin for relator.

(1) A simple charge of robbery, unexplained by anything else in the statement complained of, is actionable per se. Jones v Murray, 167 Mo. 25. (2) The above proposition is well settled by numerous other authorities. Klinck v Colby, 46 N.Y. 427, 7 Am. Rep. 360; Smiddy v Pearlstein, 201 Mass. 246; Slowman v. Dutton, 10 Bing. 402 (Eng.); Rowcliffe v. Edmonds, 7 M. & W. 12, 4 Jur. 684; Newell on Slander & Libel (3 Ed.), secs. 151-153; 25 Cyc. 286. (3) The Supreme Court has repeatedly held that words which impute or charge the commission of a crime, and especially a felony, are actionable per se. Birch v. Benton, 26 Mo. 153; Rammell v. Otis, 60 Mo. 365; Cook v. Pub. Co., 241 Mo. 326; Tilles v. Pub. Co., 241 Mo. 609. (4) The law is well settled in Missouri by controlling decisions of this court that where the slanderous statement itself is actionable per se, the plaintiff and the trial court had a right to disregard the inducement and innuendo in submitting the case to the jury. Callahan v. Ingram, 122 Mo. 355; Julian v. Kansas City Star, 209 Mo. 91; Sotham v. Telegram Co., 239 Mo. 606; Rail v. Newspaper Assn., 192 S.W. 129. (5) The publisher of a slander or libel is held to have intended to charge the crime of robbery, when he so states, where at the same time he utters or speaks no further words explaining or qualifying what he said. When such additional words are uttered it is then deemed that the poison carries is antidote. Brown v. Knapp & Co., 213 Mo. 631; Cook v. Globe Ptg. Co., 227 Mo. 537. (6) The secret intention of the publisher of a slander or libel is inadmissible to limit the meaning of the actual words uttered or published. 25 Cyc. 358; Newell on Slander & Libel (3 Ed.), pp. 373-374, sec. 362.

Charles E. Morrow for respondents.

(1) The words alleged to have been spoken, taken in their natural and obvious import, do not either in themselves alone or when taken in connection with the inducement pleaded, necessarily charge plaintiff with the crime of robbery or any other crime, and are not actionable per se. (2) At most the words are ambiguous and of doubtful import and do not necessarily carry a defamatory meaning; do not necessarily charge a crime, but may have been meant to charge simply that plaintiff was dishonest. An oral imputation of dishonesty or rascality is not actionable per se. Rammel v. Otis, 60 Mo. 365; Jones v. Banner, 172 Mo.App. 137. (3) The language charged to have been spoken being ambiguous and of doubtful import, plaintiff is bound by his innuendos. Callahan v. Ingram, 122 Mo. 355. (4) Even if the decision does conflict in certain particulars with previous decisions of this court, which we deny, yet the judgment is sustained by good reasons in law and should not be quashed. State ex rel. v. Reynolds, 194 S.W. 880. (5) The plaintiff's instruction condemned in the opinion of the Court of Appeals is erroneous for a number of reasons, and the judgment is right. (a) The words alleged to have been spoken do not charge plaintiff with the crime of robbery, and the instruction is erroneous in assuming that the language used does so charge. (b) To say the least, the words charged are ambiguous, and the plaintiff in his innuendos has limited the charge to larceny and dishonesty, and he is bound by the meaning placed upon the language in his innuendos Callahan v. Ingram, 122 Mo. 355; Crandell v. Greeves, 181 Mo.App. 230; Michael v. Mathies, 77 Mo.App. 556. (c) This instruction correspondingly placed upon the defendant the burden of proving that plaintiff was guilty of the crime of robbery in order to prove the truth of the charge. Patterson v. Evans, 153 Mo.App. 684. (d) It permitted the jury to speculate in their own mind as to what constituted the crime of robbery. Krup v. Corley, 95 Mo.App. 640; Bryce v. Wheeler, 161 Mo.App. 507. (e) It does not define robbery, or inform the jury as to the elements of that crime. Krup v. Corley, 95 Mo.App. 640; Bryce v. Wheeler, 161 Mo.App. 507. (f) The instruction is against the theory on which the case was tried by both parties. It submitted the issue of the truth of the charges made and at the same time assumed that the language charged the crime of robbery, a charge which neither the pleadings nor the evidence justified.

FARIS, J. Graves, C. J., Walker, Blair and Williams, JJ., concur; Bond, J., concurs in result; Woodson, J., dissents.

OPINION

In Banc.

Certiorari.

FARIS J.

This is an original proceeding by certiorari, whereby it is sought to bring up for quashal, the opinion and record of the St. Louis Court of Appeals in a cause lately pending in that court, wherein relator William Harriman was respondent, and one T. M. Sayman, was appellant. [Harriman v. Sayman, 193 S.W. 1001.]

The said case of Harriman v. Sayman was an action for slander. Upon a trial thereof in the circuit court of the city of St. Louis plaintiff had judgment for $ 1500 actual damages, and $ 3500 punitive damages. From this judgment defendant therein after the conventional motions appealed. Upon a hearing in the St. Louis Court of Appeals, that court in an opinion rendered by Judge Becker, reversed and remanded the case for a new trial, upon the ground that a certain instruction, which is set out below, was erroneous.

Thereupon the respondent in that case, who is the relator here, after filing his motion for a rehearing, which was overruled, sued out here this writ of certiorari, to bring up the record in said cause, upon the ground that the opinion of the St. Louis Court of Appeals contravened certain well-settled rules of law decided by this court, more particularly in the case of Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020.

The alleged point of contradiction urged,. together with such other facts as may be necessary to an understanding of the case, will be found in the subjoined opinion.

The gist of the alleged slanderous words as charged and proved in the case of Harriman v. Sayman, supra, was that Sayman, who as stated was the defendant in the slander suit, had said of relator to one Guilbeault he "has robbed me of hundreds of dollars and if you intend to keep a crook in your employ you won't get any more work of mine." This statement was garnished by an indecent and profane reference to relator, which while adding to the luridness of the epithet applied, adds nothing of pertinence to the alleged slander as a matter of law. In the relator's petition filed by him in his action for slander this allegation and innuendo occur:

"That on or about September 6, 1911, plaintiff entered into the employ of defendant as a printer and manager of defendant's printing business, which was conducted under the name of the 'Rush Printing Company;' that under and by virtue of plaintiff's employment as before stated it was his duty to manage, conduct, transact and carry on all of the business of said Rush Printing Company; that on December 13, 1912, plaintiff severed his connection with defendant as aforesaid and ceased to work for defendant in the capacity before mentioned; that at said time, and at all times prior thereto, plaintiff had fully and honestly accounted for and turned over to defendant all money and property of whatsoever kind he had in his possession belonging to said defendant, and plaintiff had fully and efficiently and completely performed all of the duties and all of the services imposed upon him by his contract of employment with defendant. . . .

"That on or about the 3rd day of January, 1913, in St. Louis, Missouri, after plaintiff had left the employ of defendant, defendant, well knowing all of the beforementioned facts, set forth concerning plaintiff, wickedly, designedly and maliciously contriving to injure plaintiff in his good name and standing in his business and occupation, as before defined, and to bring plaintiff into public scandal, infamy and disgrace with all persons, and especially those with whom plaintiff was then connected and associated in the pursuit of his business and occupation, or by whom he would likely become employed and associated with, and with his then employer, in the presence and hearing of Z. Guilbeault and other persons, whose names are unknown to plaintiff, who were then employed by the T. J. George Press Room Company, for whom plaintiff was at the time working, wilfully, wantonly and maliciously spoke of and concerning plaintiff, and concerning him in his business and occupation, certain false, defamatory and slanderous words, to-wit:

"'Where is Mr. Harriman (meaning plaintiff)? Are you (meaning Guilbeault) going to let him out, as I told you over the 'phone yesterday? That G-d d-n s-n of a b-h has robbed me (meaning defendant) of hundreds of dollars, and if you intend to keep a crook in your employ you won't get any more work of mine. Put that under your cap,' meaning and referring to plaintiff, and meaning thereby that plaintiff was a thief and had wrongfully taken and stolen money and property from the defendant, and meaning thereby that plaintiff was guilty of the heinous crime of larceny, and meaning thereby that plaintiff was dishonest and lacked credit, integrity and ability in his occupation and business of a printer and other services he performed in connection therewith, and meaning thereby that plaintiff was a dishonorable and dishonest employee and unworthy of being employed by his then employer."

In the trial of the slander suit plaintiff therein asked and the court gave this instruction, to-wit:

"The court instructs you that if...