Tincher v. National Life & Acc. Ins. Co.

• Decision Date: 02 December 1940
• Citation: 146 S.W.2d 663,235 Mo.App. 663
• Parties: E. H. TINCHER, RESPONDENT, v. THE NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

146 S.W.2d 663

235 Mo.App. 663

E. H. TINCHER, RESPONDENT, v. THE NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

December 2, 1940

Appeal from the Circuit Court of Boone County.--Hon. W. M Dinwiddie, Judge.

AFFIRMED.

Judgment affirmed.

Clark Boggs, Peterson & Becker, Howard B. Lang, Jr., and William L Nelson, Jr., for appellant.

(1) The court erred in refusing appellant's instruction 2, being a demurrer at the close of all the evidence, and erred in submitting the case to the jury under respondent's instructions 1, 5 and 6, because there was no evidence of actual damages and the words proved to have been spoken are not actionable per se for damages to respondent's personal reputation. Boyce v. Wheeler, 197 Mo.App. 295, 195 S.W. 84, 87; Atterbury v. Brink's Express Co. (Mo. App.), 90 S.W.2d 807, 808; McKim v. Moore, 291 Mo. 697, 237 S.W. 773; Ogle v. Sidwell, 167 Mo.App. 292, 301, 149 S.W. 973; Kunz v. Hartwig, 151 Mo.App. 94, 131 S.W. 721, 724. (2) The court erred in refusing to permit appellant to prove that respondent's profession prohibits advertising by its members and that respondent advertised in newspapers, and in refusing to permit appellant to prove that respondent was not eligible for admission to the American Medical Association. Stark v. Publishers George-Knapp & Co., 160 Mo. 529, 61 S.W. 559; Black v. Epstein, 221 Mo. 286, l. c. 305, 120 S.W. 754; Gordon v. Miller, 11 Mo.App. 342, 85 S.W. 943; Yager v. Bruce, 116 Mo.App. 473, 93 S.W. 307; Williamson v. Eckhoff, 185 Mo.App. 234, 170 S.W. 322; Hess v. Gansz, 90 Mo.App. 439. (3) The court erred in rejecting the deposition of respondent because it contains statements made by the respondent which show that he violated the ethics of his profession and thus materially refuted his proof that he was a doctor of good standing and reputation in the community. Dawes v. Williams, 328 Mo. 680, 40 S.W.2d 644. (4) The court erred in giving respondent's instruction 1 because the jury were not required to find that the words therein contained and alleged to have been spoken were spoken with the intent to charge, and understood to charge, that the respondent was unlawfully practicing medicine. King v. Reith, 341 Mo. 467, 108 S.W.2d 1, 5. (5) The court erred in giving respondent's instruction 5 because: (a) The instruction erroneously advised the jury that the words spoken charged the plaintiff with practicing medicine without a license. Atterbury v. Brink's Express Company (Mo. App.), 90 S.W.2d 807, 808; Kunz v. Hartwig, 151 Mo.App. 94, 131 S.W. 721, 724. (b) It erroneously charges the jury that the words spoken are actionable per se. King v. Rieth, 341 Mo. 467, 108 S.W.2d 1, 5. (6) The court erred in giving the respondent's instruction 6 because there is no evidence to support a verdict for damages to respondent's personal reputation and good name.

Baker & Baker for respondent.

(1) The court did not err in overruling defendant's demurrer and in submitting the case to the jury. The language used was slanderous per se because (a) The language used imputed to Dr. Tincher the crime of practicing medicine without a license. 36 Cyc., p. 1153; Atterbury v. Brinks Express Co., 90 S.W.2d 807; Starms v. St. Joseph Railway Co., 331 Mo. 44, 52 S.W.2d 852. (b) It tended to disparage, degrade and destroy the plaintiff in his professional capacity. Heitzeberg v. Von Hoffman Press, 340 Mo. 265, 100 S.W.2d 307; 36 C. J., p. 1180, sec. 30. (2) This court did not err in refusing to permit appellant to prove respondent's profession prohibits advertisement by its members and that respondent advertised in newspapers, and in refusing to permit appellant to prove that respondent was not eligible for admission to the American Medical Association. (3) The court did not err in rejecting the deposition of the respondent as a whole. Dawes v. Williams, 328 Mo. 680, 40 S.W.2d 644; McCaslin v. Mullins, 17 S.W.2d 684. (4) The court did not err in giving respondent's instruction No. 1, because. (a) Words are to be taken in their ordinary and usual meaning, and when taken in their ordinary and usual meaning are slanderous per se, it is not necessary for the jury to find what they mean, what is intended to be charged, or what is understood to be charged. 36 C. J., 1155, sec. 2; pages 1161 and 1162, sec. 4; Heitzberg v. Von Hoffman Press, supra; Atterbury v. Brinks Express Co., supra; Starms v. St. Joseph Railway Co., supra. (b) Because the instruction did submit the issues which appellant claims were omitted in the following language: "If you find . . . that the speaker intended to charge, and those hearing the words understood him to charge that the plaintiff had no license to practice medicine . . ." (5) The court did not err in giving respondent's Instruction 5, because the language charged and proven did actually charge the respondent with practicing medicine without a license, which is a crime under our statute, and was in fact slanderous per se for that reason, and for the further reason that they affected him in his professional capacity. (6) The court did not err in giving respondent's instruction No. 6. Instruction No. 6 must be read in connection with instruction No. 1. Moreover, where words are slanderous per se no proof of damage is necessary. (7) Defamatory words are actionable per se if they are of such nature that the court can presume as a matter of law that they will tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned or avoided. 36 C. J., pages 1163 to 1164, sub-div. "D," sec. 1; Walsh v. Pulitzer Pub. Co., 250 Mo. 142; 157 S.W. 326. (8) The Missouri rule is that oral words are actionable without proof of specific damage when. (a) They defame one's fitness or integrity in business or office, or prejudice him in his trade, profession or business. (b) They impute the commission of an indictable offense punishable by corporal punishment, irrespective of whether or not the offense charged may be legally said to involve moral turpitude. Birch v. Benton, 26 Mo. 153; Boyce v. Wheeler, 197 Mo.App. 295, 195 S.W. 84, 87. (9) It is not necessary that any particular words or phraseology be used to denote the crime. Any words fairly susceptible of constituting the alleged charge and which the hearers may naturally understand as intended to convey such meaning are sufficient. Boyce v. Wheeler, supra. (10) Unless pleaded in the answer neither privilege nor justification can be considered. 36 C. J., pages 1231 and 1238; Sitts v. Daniel, 284 S.W. 857. (11) Where an agent of a corporation, in the course of his employment by a corporation, utters slanderous words the corporation itself is liable for both compensatory and punitive damages. Starms v. St. Joseph Railway Co., supra; Atterbury v. Brinks Express Co., supra.

SHAIN, P. J. Bland, J., concurs; Cave, J., not sitting.

OPINION

SHAIN, P. J.

--This is an action for slander. The facts briefly stated are that a Mrs. Perkins held a sick and accident policy in the defendant company and made application to said company for sick benefits. The defendant company required that an application for benefits should be accompanied by a certificate of a physician.

The plaintiff herein, who is shown to be a regularly licensed physician, duly signed, as a physician, the application of Mrs. Perkins for said sick benefits. The said application of Mrs. Perkins was made upon a blank form furnished by the defendant company and, after being filled out and certified to by said physician, was duly sent to the defendant company. Thereafter, the defendant company turned down Mrs. Perkins' claim and imparted to her the grounds upon which her claim was rejected.

The issue in this case is predicated upon the language used by defendant's agent and employee informing Mrs. Perkins of the reason assigned by the company.

The plaintiff herein alleges as follows:

". . . that in informing the claimant of the rejection of said claim on or about February 20, 1939, less than one year prior to the filing of this petition, the defendant, through and by its said agents, servants and employees, acting within the scope of his and their employment, and in the furtherance of defendant's business at Columbia, Boone County, Missouri, willfully, wantonly, maliciously and falsely said to and in the presence and hearing of divers persons, of and concerning plaintiff, the following false, defamatory and slanderous words, to-wit: 'I (meaning defendant's agent, servant and employee) have bad news for you (meaning applicant). I (meaning defendant's said agent, servant and employee) have a letter from the company (referring to the defendant) saying they (referring to the defendant) cannot pay your claim because Dr. Tincher (referring to the plaintiff) is not a licensed doctor.' 'We (referring to the defendant and its agents, servants and employees) have written to Jefferson City and he (referring to the plaintiff) has no license."

Further pleading as to meaning and consequences, the plaintiff alleges as follows:

" . . that by said false, defamatory and slanderous words the defendant, through its said agents, servants and employees, acting within the scope of their employment, intended to charge, did charge, and those hearing those statements understood said agents to charge, that this plaintiff was an imposter; that he had no right to practice medicine; that he had violated the criminal statutes of this State, having violated the provisions of Sections 9117 and 9118, R. S. of Missouri for the year 1929; that he was incompetent and unfit to practice medicine; that his statement and certificate as a physician had no value and no probative force; that by said statements so spoken...