*1 all the forms of verdict asked also instruction T, which is as follows:
“If verdict be for petition on his and for the defendant on may his following counterclaim be form: “Mervin C. Wilson, Roberts v. Howard Sr. “We the jury find for petition on his and we assess his damages sum at the of $-- also find for we defendant on his counterclaim damages and we assess his for per- sonal injuries at sum damages $- his and for automobile at the sum $of — n -.
“Foreman.” pass We need upon question to whether court should have instruction T, for the verdict of the shows they did instruction; not follow this and, therefore, if there was error in fact, in giving T, of instruction and the modification of defendant’s instruction the error was S, harmless. We find no error reversible judgment of record and accord-
ingly Blancl, J., concurs; affirmed. Trimble, P. absent. Chicago Fred Error, Trustee, etc., Defendant Klaber, Railway in Error. Rock Co., Island Pacific Plaintiff (2d) 1, 1930. Appeals. December City Court of Kansas
rH05 *2 Knight,- Harber, A. Press T. Gross G. and Gerald E. Cross for M. in error. Burns, Henry Conrad, Luther L. E. 'Durham and Hale Hants error. plaintiff in CAMPBELL, May C. On 4, 1926, James R. Kurfman instituted against an action the Chicago, Rock Island & Pacific Railway Com- circuit pany Grundy court of county, Missouri.
The petition is in three counts. At the close of plaintiff’s evidence the first petition third counts of said and were dismissed they pass and therefore out of the case.
In the petition second count it is averred that thirty-three years age, therein was having married, and wife girl always children; two that he had conducted himself as an upright citizen; honest and that he had served as a States United soldier in the World War and received discharge; an honorable day on the 22nd of October, county, in DeKalb Missouri, the railway through company, and its officer agent, J. S. and Caldwell, of, discharge while he line duty and in of his employment and in the course of his and in the and hear- ing persons wilfully, four named and persons, divers other wantonly, maliciously concerning falsely and to and defamatory certain false and words as follows: you “Kurfman swore to on a lie (Kurfman the witness stand” meaning this and said referring to plaintiff’s while, cause). evidence and as a witness in (mean- “Kurfman ing plaintiff) this swore to a lie and perjury committed while on you I prove witness stand want to that he did and lie on the (meaning plaintiff) stand.” “Kurfman perjury committed while to-day prove by you the witness stand I want on and that he perjury (meaning did commit on that stand.” “Kurfman plain- tiff) you perjury to-day while on the committed witness stand you go acknowledge you unless back on lied and stand you your yourself, job I will perjured see that lose I Will have you you job get any listed can black so that never on railroad country.” (meaning plaintiff) you “Kurfman part lied this today if you stand don’t yourself on the witness perjured Rock will up, go stand and clear see back Island you Island, Rock job” (meaning the term defend- your lose
942' Railway Company, by plaintiff’s ant job, meaning term position tbe which, foreman, Burling- as section Chicago, then was for Quincy ton “Kurfman, you Railroad Company). lied on the perjury, stand and committed yet witness but it ain’t too late being go yourself you save from and if will fired back on the stand help (meaning railway us the defendant', company) out this you ease, protect everything will right, we and see that all and if you you job go don’t do this will sure lose probably penitentiary.” (meaning plaintiff) “Kurfman committed perjury in this case while on the witness stand this case and his soul perjury.” (meaning plaintiff), is black as “Kurfman hell with perjury .committed on the 'Witness stand is so case and he contemptibly low vile that men should refuse associate .all (meaning anything him or him.” “Kurfman have with do *3 plaintiff) perjury stand, committed in this case on and he while being.” is so low I will not him human “Kurfman call a perjured (meaning (meaning plaintiff) himself in this case on while aforesaid), in he is than thief.” the witness stand case and worse a Smith perjured “Kurfman himself when he on the stand that swore seventy-five crossing feet north of the and we want was struck by you boys that Kurfman stand.” show and other lie did lengths by you was struck seven rail “We want to show that Smith (meaning plaintiff) Kurfman com- crossing, north of the and. that (Kurfman) he was' struck about perjury when he swore mitted crossing.” seventy-five north of the feet duly and Kurfman had been sworn testified It is also averred that court of DeKalb in tidal in the circuit oath as a witness a under 1924, October, of wherein Missouri, about 22nd county, day on or husband, her was Smith, of deceased Nellie administratrix Quincy Company was de- Burlington & Railroad Chicago, and the foregoing false by on account of reason and fendant,. and that good his and injured in name been words he has and contempt and reproach and brought public into reputation and shame, for which and mortification, embarrassment caused to suffer damage. punitive and recovery both actual prayed a he allegation, general an and count is a denial to said The answer the trial plaintiff, before the effect that way mitigation, to at signed statement a written case, had made Nellie Smith cause.; that defendant testimony gave in he with the variance said liable to defending suit and Nellie M. Smith was, and still is judg- any Company Railroad Burlington Quincy Chicago, it; in against may final become ment therein which admitted deposition, trial, and thereafter testifying at said only excuse to defendant said written had testifying contrary gave be lor to said written statement was not made the same was under oath sworn to him. a verdict in plaintiff, assessing
The. returned favor of the damage damage punitive actual at thousand dollars one at the sum of one thousand dollars. overruled, granted filed, appeal new trial Motion for was. judgment. appeal from in That was defendant dismissed
this court on October Thereafter the defendant sued judgment pro- out a error this court writ of in to review brought by in so R. ceedings the suit the said James Kurfman. error, suggestions writ of filed in this After return.to had been
court to the James R. Kurfman convicted effect that Penitentiary undergoing in the State felony sentence asking appointed a trustee be for him. Missouri, appointed and, such, Thereupon Klaber was as-trustee Fred and the has been revived appearance entered his this court cause Kurfman, R. convict name as trustee for the said James his error. Plaintiff in error not, court, does claim that the conviction imprisonment any way of Kurfman should influence the dis- position of this.cause. plaintiff in error, Counsel for with commendable frankness,
their brief state be plaintiff’s conceded that evidence was prima-faeie sufficient to make a case. That admission means it was proper court to submit jury. the case to the We for. therefore it unnecessary deem an make extended statement of the evidence. *4 Plaintiff testified that after he had evidence as a witness in the M. Mr. Caldwell, Nellie Smith case attorney claims for plain- the tiff error, him in house, came to the court placed his hand on his said, “Kurfman, you shoulder and to lie swore on the witness you Kurfman to stand. swore a lie and perjury committed on the today go and if stand don’t you witness back on the witness stand you your help protect job. us, probably and us and will lose Kurf- man, you yourself perjured lied witness the stand and if and you go up back it don’t and clear the- Rock will you island see that job.” you your you lose “If job don’t do will lose and ’’ .go penitentiary. probably to the He further testified that he had signed, written the to in answer referred but that he statement; had he he know never did not at the read time he signed- the statement that it contained a to recitation the effect that ‘‘ ’’ engine blow; prepared had heard that said statement was by sign it, “sign who showed him Caldwell where and said here;” nothing saying also “those statements to- do with had goes case, to trial.” ’At this time he was-section case foreman Burlington Quincy Company Chicago, for Railroad and was discharged eight days George Hall Smith, later. Nellie Fred and of Kurfman Carter testified corroboration of the evidence rela- language by to the used Caldwell. tive witness, any Caldwell, having as a denied made of the state- called plaintiff, this, and, ments attributed to him the he was corro- borated defendant’s witness Cotter. assigned
Error is because the court failed to direct a verdict for plaintiff’s again at the of the defendant close evidence at the and close as of all evidence. Inasmuch it is conceded that assignments prima-facie ease, made a need no further attention. said assignment of is The to the effect that the court erred error giving requested by plaintiff. each of the instructions It recovery argued that Number if any authorized part by Caldwell; of the slanderous words were in- jury struction assumes advises as a matter of law that Cald- alleged well uttered at least two of the slanderous statements and any instruction did that the not fact show- find ing acting scope that Caldwell the words while of in the his authority and in defendant’s business. Said instruc- furtherance correctly allegations petition tion advised the of the as employment alleged Caldwell, relative to the slanderous words proceeds: set forth in the and then petition, as “Now, if the from find the evidence that said as Caldwell agent representative defendant, such of the while in the line of discharge duties, of his to defendant and the course his employment, said said and used to in the and hear- ing language persons named, of one or more before hereto- language set out and use of said or sufficient thereof to fore charge having plaintiff with perjury committed at the time charges upon aforesaid, (and trial were false there thereof, pretended is no evidence of the truth nor is it so claimed or defendant); plaintiff, then the verdict should be be necessary says it is jury, in this the court to the connection in this prove speaking should of all the set out words to prove instruction but it is' sufficient to sufficient charge perjury in manner afore- crime of accuse ’’ said. question to whether
This instruction submitted defendant, in the line Caldwell, agent representative of while *5 discharge in the course of employee of and his duties as such him, is there- and it employment, spoke to the words attributed subject to. fore not to the criticism above referred is, upon ground, Said instruction is criticised another that that it require persons presence did not the find that in to the whose alleged hearing spoken, the words were heard and slanderous
945 instruction them. The does submit ques- understood the spoken words were in presence hearing tion whether the the but persons, of certain named does the jury find that persons alleged understood the utterance. This contention is upon proposition based the that slanderous words are not actionable publication published that is not until a per- unless son hears and understands them. Taylor 185 App. 330,
In
Mo.
l. c.
White,
v.
Said the Court: erroneous,
“This is it instruction that authorized a verdict for finding on a words plaintiff mere defendant uttered the of and concerning regard plaintiff they without to the fact as to whether presence of and heard and were understood others. publication is certain there can be no slander without It words It be shown spoken. must slanderous matter was .com- person it, since, otherwise, to some third who understood municated publication. no be a there is There must communication of the is, speaking presence a of them words—that to or person other than the and the defendant —in order of some (25 366, Cyc. 365, 367); for, indeed, the constitute slander publica- in the damages which therefrom consist slander and ensue is, speaking in the of others de- tion—that hear it. apprehension of those who famatory [Caruth words and Cameron, 162 633; 9 S. Cameron v. Mo. Richeson, Mo. 110, 114, App. 171.] principal given which one copied, above is the
“The instruction case, if for it the whole a verdict and authorizes covered finding part as to no whatever on the whether required understood in their usual sense spoken were heard and words and, indeed, is deficient, In this the instruction present. those finding requires a part other none though it a verdict as respect matter, of this but all authorize defamatory con- speak enough for defendant others or not. cerning plaintiff, and understood whether heard say present witnesses who were It is true several others, they them, but who were charged heard the words contrary, defendant herself. as does insist to present, likewise copied is er- above entirely plaintiff’s clear that It jury, for au- to misdirection roneous, it amounts warrant such insufficient to finding on facts thorizes in law.”
946
aIn by later case the same court, and language one in which the per used was se, slanderous the court said: “This first instruction told jury they the that if believed from the evidence that on or about 23, October 1912, and in city of Louis, St. ‘addressing the defendant plaintiff in presence hearing of persons, other plaintiff of and concerning words substantially (setting as follows out the words used in petition), plaintiff is entitled to recover compensatory damages in action, verdict favor,’ should be in her if jury found the words malice, they were with etc., might, in addition to awarding compensatory -damages, punitive damages. award
A second instruction at plaintiff the instance of makes no necessity finding reference to charged of that the words must presence hearing have been in the of others.. uttered compelled “We are to hold that both this first instruction well second, fatally as the are erroneous. It was essential to recovery only plaintiff prove she publication there was made words, them; offensive but that those who heard understood is, charge understood that defendant meant to being guilty practice charged.” of the or act 194 Grob, [Frazier 183 App. 405, 415, Mo. l. c. S. W. 1083.] A reading careful opinion of the Frazier case, supra, has convinced us-the court to publication intended hold that made person if some third or heard understood the offensive person meaning not that heard understood the obviously slanderous utterance.
In Joseph Railway, Light, Starnes v. St. & Power Company, Heat (2d) 75, 80, this, court considered an instruction that presence told the that if “in hearing the defendant persons” spoke, and divers other maliciously etc. the al- leged words, was. entitled to recover. ‘‘ The court said: The is then find he uttered directed words, omitting the slanderous to find that alleged slanderous words heard or understood some third person. We think the instruction is erroneous.” It is evident the judged by is, instruction under consideration when the rule an- foregoing cases, erroneous, purports it nounced because cover the whole case and to a verdict for the with- authorize alleged requiring out find that slanderous words were hearing person ivho heard uttered of some third them. understood complaint Further is made this instruction because certain parenthetical expressions therein, forth being argued set said ex- pressions disputed assume the existence of facts and are misleading. jurors This court must assume that the were men of at average least intelligence and, were, they they if ex- were not those mislead pressions. Complaint 6 given number on behalf
of defendant in error. It is as follows: jury before “As pretense by there is no answer of de fendant, evidence or otherwise that J. S. justified Caldwell was in if speaking, did, making the words or charge's of, to and against plaintiff specified as in second instruction here and if he, Caldwell, acting in line of his duties to and for defendánt, charges made said and statements and charged thereby perjury, is, with said, justification there as before no thereof and plaintiff." verdict must be for part The first jury instruction told the there pre- was no by answer,
tense evidence or otherwise that justified Caldwell was in speaking, did, if he the words making- charges or of, to and against specified in the “second instruction here ’’ given, proceeds and it jury to advise the if said Caldwell, ‘‘acting in line of his duties to defendant, and for charges made said thereby charged and statements and perjury, with is, there said, justification before no thereof." Thus far the instruction is advising limited to justifica- the effect that there was no in case, tion pleading either or evidence, and after so ad- vising it concludes with words “and verdict must be for plaintiff.” very therefore, by It terms, purports its to cover the case, whole because it directs a plaintiff upon verdict for the finding by the Caldwell or the words made the charges doing acting duty that when so he was in the line of his thereby charged defendant and perjury. This in- charged struction does not to find that the words petition, enough them, or Caldwell while duty acting charges the line of his for defendant nor that the presence hearing statements were made of some third person. It is therefore clear that said instruction violates the rule foregoing obviously announced in part opinion of this that words not published, are actionable unless uttered in the is, - hearing Moreover, person. some the conclud- ing plaintiff" words of the instruction verdict must be for “and readily very directing could been understood as a verdict for have justification plaintiff merely proven. pleaded because The use of such closing part of an instruction has been condemned with the by this court. “Besides the closed defendant,’ which rendered words ‘and verdict for the must be objectionable." al., 225 v. Jewett et [Privitt 129.] n - fatally Said instruction is erroneous. objec- assigned overruling an Error is court to the action of the tion during made the course of argument the trial counsel for objection error. The sufficiently made is not definite enable this court to particular determine what was referred to in the objection, and can therefore not be considered. Oin account of the errors pointed out, above the Commissioner recommends judgment be reversed and the cause remanded. Boyer, C., concurs.
PER foregoing opinion by CURIAM:—The Campbell, C., is adopted opinion as the judgment the court. The is reversed and the cause remanded. All concur, except, Trimble, J., P. absent. *8 The Auburn, Carson Bank of Nebraska, National Respondent, v. Joseph Appel The American National Bank of St. al., et
lants. The First National Bank Auburn, Nebraska, Respondents, Appel Joseph The American National Bank al., of St. et 34 S. (2d)
lants. 143. City Appeals. Kansas Court of December