197 Mo. App. 217 | Mo. Ct. App. | 1917
This is an action for slander, brought by C. E. Garey, plaintiff below, in the circuit court of Boone county, against C. M. Jackson, defendant below. After a trial, resulting in a hung jury, the venue was changed by consent to the circuit court of Audrain county, where, upon a hearing of the case, judgment was rendered in favor of plaintiff and against defendant in the sum of $1000 actual damages and $1250 punitive damages, from which judgment defendant appeals.
We think it necessary for a proper understanding of the case that we quote the inducement or colloquium, the false and defamatory words alleged to have been spoken, and the innuendo set out in .plaintiff’s amended petition.
“ ‘That about two years ago in the Summer when the students were away, Mr. Garey (meaning this plaintiff), who was then manager of the students’ co-operative store (meaning the store run and operated by plaintiff), which was conducted for and owned by the university body, resigned his position and opened up a rival -store, (meaning the Missouri store) taking with him (meaning plaintiff) a quantity of second-hand books (meaning then and there and intending'to charge, and charging plaintiff with the offense and crime of unlawfully taking, stealing and carrying away said books and thus guilty of the charge and offense of theft or larceny) he, Garey (meaning the plaintiff), deserted the cause of the students and expressed a determination to put the co-operative store out of business altogether, but Mr. Maddox after a short
“ Plaintiff states that by the use and public utterance of the language set out as aforesaid, defendant falsely, wantonly, and maliciously intended to impute to and charge and did impute to and charge plaintiff with the crime of larceny or theft, and was so understood by the use of said words to charge plaintiff, by the persons who heard him use the same; and did thereby wantonly, falsqg£ ly and maliciously impute to and charge plaintiff, and was by the persons who heard him, understood to impute to and charge plaintiff with having stolen a quantity of second-hand books from the co-operative store, and that said charge was so made for the purpose of injuring the character and reputation of this plaintiff and his business, and for the willful purpose of completely destroying plaintiff’s business. And plaintiff further states that, by the use and public utterance of the language set out as aforesaid, defendant, in addition to the charge of theft or larceny, as aforesaid, falsely, wantonly and maliciously intended to impute to and charge and did impute to and charge plaintiff with being unscrupulous in his trade or
The defendant’s answer sets out the following defenses :
First, a general denial; second, that the words were true in the sense that the plaintiff had taken advantage of his position as manager of the co-operative store to purchase second-hand books for its rival and competitor, the Missouri store; third, that the statements were made in good faith at a business meeting of the students financially interested in the co-operative store and its business.
The reply was a general denial.
The defendant, at the opening of the trial, interposed an oral demurrer to the petition in the form of an objection to the introduction of any testimony. This objection was overruled. Again at the close of the plaintiff’s case, as well as at the close of all the evidence, the defendant requested that a peremptory instruction be given the jury by the court, that the verdict must be for the defendant, which request was refused in each instance, and proper exceptions were saved to the ruling of the court.
The record discloses that there was little conflicting testimony as to the facts in the case.
We find that the appellant’s statement of facts is concise, complete and fair and we quote certain portions thereof herein.
“That some ten years before a co-operative store was organized at the university for the purpose of selling to students text books and other student supplies at low prices. This concern was incorporated as the university co-operative store, with a capital stock of $2000, divided into shares of one dollar each, which were sold to the students. The plaintiff, Garey, was employed as the business manager of this concern, and managed it quite successfully for a number of years. After a time, the original shareholders graduated or left school, and became so scattered that it was becoming difficult to keep up the organization. Garey himself suggested a further danger that
“About the same time in the early Spring of 1909, the board decided to change Garey’s compensation from a commission to a salary basis, and were negotiating with him on this subject for the next year. Whether Garey took offense at this action of the board, or merely desired to start in business for himself is not clear. At any rate, in the early Spring of 1909, he quietly began the organization of a new corporation to deal in books and student supplies.
“It had been the practice at the close of each school year for the management of the store, in connection with a firm of second-hand book dealers, to advertise to buy the books which .the students had just used. In this way the store obtained what second-hand books it needed for the next year and any surplus was taken by the second-hand dealer.
“At the end of May, 1909, Garey had the usual notice published that the co-operative store would buy sec
“Garey bought no books for the co-operative store; but did at this sale secure a supply for the new concern which he was then secretly organizing. There is some controversy as to the amount of the books thus obtained, but none as to the fact that he secured several hundred for himself, and none for the co-operative store.
“These details appear to be necessary in order to understand the subsequent controversy.
“About the last of June, Garey resigned his position as manager, and soon completed the organization of a new corporation, known as the Missouri store company, in which he and some four or five others became the first stockholders. When a new manager was secured for the co-operative store, he discovered the fact that Garey had not renewed its stock of second-hand books, but had cornered the supply for the new store. During the Fall of 1909 and the Spring of 1910, there was a sharp fight on between the old and new concern. The pi an tiff Garey gives the following account of this period in his cross-examination:
“ ‘Well our price was cut the lower; we cut prices. Q. You cut prices and had a commercial war that year? A. You may call it that. ■ Q. You were trying, if you possibly could to take all the business away from them and force them out of business? A. I would have done so if I could. Q. Each one was making its boast that it was going to'bust the other — that’s a fact, isn’t, it? A. Yes, sir, I expect it is.’
“This was the state of affairs between the business managements of the two store companies when a meeting of students was held at the university on December 6, 1910, to nominate a new board of directors for the co-operative store. The defendant, as chairman of the old board, presided -at the meeting, and as a preliminary to the nomination of directors, made a fifteen or twenty minute talk, in which he explained'the origin and organization of the co-operative store; the interest of the stu
According to this stenographic report, which is admitted to he substantially correct, the defendant made the statements set forth in plaintiff’s amended petition, with, however, one important additional statement which the stenographic report shows the defendant to have made in connection with the reference to taking the second-hand books for the Missouri store, which statement does not appear in plaintiff’s petition. We quote these additional words, in italics, in connection with the paragraph in which they belong, as found in the stenographic report. ■ ■
“Said it was a matter of common knowledge that about two years ago, during the Summer, when the students were away, Mr.' Garey, who was then manager of the co-operative store, resigned his position and opened up a rival store, taking with him a quantity of second-hand books, but whether he toolc them in a proper manner he could not say; or, in other words, he (Garey) deserted the cause of the students and expressed a determination to put the co-operative store out of business. . . . The co-operative store is a public institution. Do not criticize its managements, its goods, etc., but if you are not satisfied with its directors, its management or its manager, say so, and elect new ones, . . . The co-operative store has a shrewd and unscrupulous enemy. ’ ’
Plaintiff was permitted to show by his stenographer and his business associate Orr, that they understood the words to charge plaintiff with stealing. All the other witnesses simply understood the language to mean that there was some dispute about the books and that the speaker did not think Garey had a right to them.
The defendant frankly admitted using substantially the language reported by the stenographer but dis
We will first take np the question as to whether or not the statements complained of in plaintiff’s petition, and upon which this action is founded can be held to have been qualifiedly privileged communication.
It is the law in this State that before the defense of qualified privilege is available it must appear that the statements made by the defendant were made in the discharge of some duty, either public or private, either legal, moral or social, to a person or persons having a corresponding interest or duty, and were spoken in connection with and were relevant and germane to some matter involving such an interest or duty, and that the words were spoken in the interest of or for the protection thereof. In addition they must have been uttered in good faith and spoken on a proper occasion, from a proper motive and based upon a probable cause, and in the honest belief that such statements were true. The duty or interest on which the privilege is founded-must actually exist, and it is not sufficient that the defendant honestly believes that such duty or interest exists. It is the surrounding circumstances as they appeared to the defendant at the time of the utterance of the words that the court considers in determining the question of privilege. [Odgers on Libel and Slander (4 Ed.), p. 234; Newell, Slander and Libel (3 Ed.), p. 575; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S. W. 100.]
The statements complained of were spoken by the president of a co-operative store at an annual meeting of the members thereof, which membership was made up of the students of the university of the State of Missouri. Each of the students present at the meeting had a pecuniary as well as a moral interest in the welfare of the said co-operative store. For a year or more prior to the meeting there had been a keen rivalry between the Missouri store of which the plaintiff was manager, and the co-operative store, and the plaintiff had .openly stated that he would, if possible, put the co
Did not the defendant, as the president of the company and one of the trustees, owe a duty to the students who made up the body corporate, to explain the condtion of its affairs? Was it not his duty to explain to them the necessity and the need for a joint and united effort on the part of all the students to stand by the organization of the company in which they were all directly interested? And was it not defendant’s duty in this connection as president of the company to fully explain the methods used by their competitor in taking the trade of the students from the co-operative store, and to tell them of the unfair advantage that plaintiff had taken of the situation regarding the annual purchase of second-hand books? We feel defendant, as-president of the company, clearly owed such a duty to the student body comprising the membership of the cooperative store, and we hold that in the instant ease the statements of defendant complained of were made under circumstances which make the same a qualifiedly privileged communication and should have been so treated by the trial court.
Second: Holding as we do that the statements complained of in plaintiff’s petition were a qualifiedly privileged communication, we next come to the question, what burden, if any, is thereby cast on plaintiff.
“The proper meaning of a privileged communication is said to be this: That the occasion on which it was made, rebuts the utterance arising, prima-facie, from a statement prejudicial to the character of the plaintiff; and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill will, independent of the circumstances in which the communication was made.” [Finley v. Steele, 159 Mo. 299, 60 S. W. 108; Holmes v. Royal Fraternal Union, supra.]
We must remember that the defendant could not have been actuated by any monetary consideration or any motive of personal gain. Further, he was the dean of the medical school of the university and had been chosen by the student body as one of the directors and trustees, and he was the president of the company. The record shows the defendant at no time had any personal disagreement with the plaintiff; in point of fact defendant offered to retain plaintiff as manager of the company at the very time when plaintiff had already entered into negotiations to form a separate company in opposition to and in competion with the co-operative store, and of which he was to become the manager. The defendant, as the president of the co-operative store, was determined to imbue the students, for whose benefit the company was being run, with' its need of their loyalty and co-operation. It was but natural that he would review the history of the business for the previous year or more and' would explain the keen competition that had arisen out of the fact that the plaintiff had opened up a competing store, and in this connection to explain how plaintiff had obtained a considerable advantage over the co-operative store in competition for the business of the fall and winter of 1909, just after the plaintiff had opened his store; and so to tell them that the plaintiff, while, and though still manager of the co-operative store, had purchased the second-hand books for the new rival store and not for the co-operative store, contrary to the custom in each' of the previous years, and this too with
After a careful review of the facts in the case we hold that plaintiff has not shown defendant to have been actuated by ill will or malice in the uttering of the words charged- and proven to have been spoken.
In view of what we have held above it is not necessary to discuss at length the question, whether or not the statements made and complained of herein were .true, as alleged in defendant’s answer. We feel however, that plaintiff’s case alone, as presented in the record before us, shows that the statements proven by plaintiff to have been made by the defendant, on the-occasion complained of, were in substance true. There could be but one conclusion reached by reasonable minds on this record; -not alone that the statements made did not intend to charge the plaintiff with the commission of any statements that plaintiff was a shrewd.and unscrupulous enemy of the co-operative store. ' •
In view of what we have stated above we hold that the statements complained of were made without malice, in good faith, and were based upon a reasonable cause and were made upon an occasion which made them a qualifiedly privileged communication. The trial court should, at the close of plaintiff’s case, have sustained the demurrer to the evidence which was interposed by defendant.
The judgment of the trial court is reversed.