Everhart v. Bryson

FERRISS, J. Action for slander upon the following petition: “Plaintiff for his cause of action states that the defendant, on or about the 26th day of March, 1907, — 513 — at the city of Centralia, in the State of Missouri, wilfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: ‘Everhart (meaning the plaintiff) and a negro, Snell (meaning one Jam.es Snell), a negro man, ran off together once on money obtained by a forged check.’ And said words were spoken in the hearing and presence of third parties; and by said words the said defendant did charge and intend to charge that the said Ownby Everhart had made and uttered a forged check upon some duly incorporated bank, and had obtained money upon said forged check, and the said words were so understood by the persons who heard them. Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of ten thousand dollars, five thousand dollars of which he says is actual damage, and five thousand dollars as punitive damages, for which sum of ten thousand dollars he prays judgment, and costs.” The answer is a general denial, and then this in mitigation: “Defendant, further answering, says that whatever words he may have spoken of and concerning the plaintiff were spoken without any ill will or malice toward him, and were not spoken with the intent to injure him, but at the time they were spoken, the said defendant did not speak of and concerning the plaintiff as to his own knowledge, and so stated at the time, but defendant did say of and concerning the plaintiff that he, the defendant, had understood that the plaintiff had forged his, plaintiff’s father’s name, to a check, and in that way got some money by which he and the negro man, James Snell, had gone off together, but this defendant in relating said circumstance, in speaking of and concerning the plaintiff and his connection with the said check and the said James Snell, the negro — 514 — man, stated what was current rumor in the vicinity in which plaintiff and defendant lived, and defendant stated at the time of using said words, that the information had come to him from others, and did not undertake to state the same to be a fact, and it was understood by the persons who heard the said speaking that said defendant made said statement not upon his own knowledge but upon the information of others. “Defendant further denies that the language used by him of and concerning the plaintiff is slanderous, or that it amounted to the imputation of a crime by said defendant against plaintiff.” The case was tried before a jury, the verdict being for the defendant. Plaintiff appeals. There was evidence tending to sustain the allegations of both the petition and answer. The plaintiff complains: (1) Of the refusal of his peremptory instruction to find in his favor; (2) of adverse ruling on evidence offered to show the sense in which hearers understood the language used; (3) of instruction numbered 3 given for defendant. The other points are unworthy of consideration. Further facts necessary to an understanding of the opinion will be found therein. I. At the close of the evidence plaintiff asked and the court gave, among others, instructions numbered 1 and 2, as follows: “1. If you believe from the evidence that the defendant spoke of and concerning the plaintiff, in the presence and hearing of J. Kelly Pool, the word's mentioned in the petition, to-wit: ‘Everhart and a negro, Snell, ran off together once on money obtained by a forged check,’ and if you further believe that by said words the defendant did charge and intend to charge that said Ownby Everhart had made and uttered a forged check, and had obtained money upon such — 515 — forged -check, and the said words were so understood by the persons who heard them, then you are instructed that it is your duty to return a verdict for the plaintiff. “2. The court instructs the jury that in this case there is no justification pleaded, and the defendant does not allege that the words he spoke of and concerning plaintiff were true, and if you find and believe the defendant spoke of and concerning plaintiff the words set forth in plaintiff’s instructions numbered one and two, and thereby charged and intended to charge that Ownby Everhart had made and uttered a forged cheek, and the words were so understood by the person who heard them, then the verdict must be for the plaintiff.” Plaintiff also requested the court to give this instruction : “The court instructs the jury that under the law and the evidence in this case you should return a verdict for the plaintiff, and the only matter for your consideration is the amount of damages.” This instruction was refused, and plaintiff excepted. The way to the consideration of plaintiff’s objection to the court’s ruling on this instruction is blocked by an important question of appellate procedure, namely: Can plaintiff object on appeal to the refusal of this instruction, in view of the fact that the above instructions numbered 1 and 2, were given at his request? The case was pleaded, tried and instructed on both sides upon the theory indicated in the above given instructions. The peremptory instruction refused was inconsistent with numbers 1 and 2, given for plaintiff. Defendant contends that plaintiff waived his objection to the refusal of his peremptory instruction by asldng and receiving the instructions which submitted the question of slander or no slander to the jury, and calls attention to the abstract, which fails to — 516 — show that the peremptory instruction was asked first, hut, on the contrary, would seem to indicate that it was an afterthought. We do not regard the order in which instructions are offered as important, and will assume that the peremptory instruction was first offered, and refused. [Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. l. c. 313.] It is undoubtedly established law that an appellant cannot complain of an error which he invited. It is also true that if it was error to refuse the peremptory instruction, it was error to give the inconsistent one submitting the question to the jury; but the latter having been given at appellant’s request, lie invited the error if error was committed. It is settled by numerous decisions of this court that a defendant does not waive his objection to the refusal of the court to give his peremptory instruction in the nature of a demurrer to the evidence by asking further instructions to meet those given on behalf of the plaintiff. Should the same rule apply to the plaintiff regarding his peremptory instruction? It may be remarked in passing that this privilege extended to the defendant is not recognized in all jurisdictions. It is in the nature of an exception to the general doctrine of waiver and estoppel. Its recognition in this State is put upon the ground that the defendant does not come into court voluntarily, and cannot retreat therefrom. He is therefore allowed to shift his ground, if need be, to meet the attack of his adversary, which attack he can in no way control. On the other hand, the plaintiff is the moving party. He selects his method of attack. If one theory put forward by him, by his' instructions, is denied by the court, he may retreat from the contest with his rights in. full force for a new attempt. Not so the defendant. If, under these conditions, the plaintiff (his first theory being denied by the court) sees fit to persist and try the case on a different theory, approved by the court, — 517 — he must be held to have waived his objection to the ruling of the court on his first proposition. That such distinction between the plaintiff and defendant exists is clearly indicated in Cochran v. Railroad, 113 Mo. l. c. 366, where Gantt, J., says: “It must be remembered that a defendant occupies a different attitude from his adversary, the plaintiff. The plaintiff brings the action. If the ruling is adverse, he may take a nonsuit. Not so with the defendant. He is in court without his consent. The court may make any number of rulings that he may deem erroneous, but he cannot abandon the case; he is in court, and must remain until the cause is finished. He has a right to tender as many defenses as he has. If the court erroneously deny him one, he must avail himself as best he can of those remaining. He, however, advises the court and his adversary of his claim, and if he submits, as he is bound to do, to the ruling of the court, and tries his case in accordance with the judgment of the trial court, on what principle is he estopped from complaining of the action of the trial court and his adversary in forcing him to fight the battle upon ground selected by them and at a great disadvantage to him? We see no element of estoppel in such a case.” And again, by Lamm, J., in Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. l. c. 307, where he says: “In construing rules of appellate practice in accordance with .right reason regard must be had to the difference between the position occupied by a defendant and that occupied by a plaintiff. The plaintiff goes into court voluntarily; the defendant is elugged’ in, that is, pulled in by the lugs, will ye, nill ye. The plaintiff goes up to battle on his own ground — he pitches the field.” These expressions must mean that the defendant is allowed, by grace, to do something which the plain — 518 — tiff cannot be allowed to do. They have no force unless they deny to plaintiff the right accorded to the defendant. "We think this distinction is radical. The plaintiff, by his instruction asked and given, after his peremptory instruction is refused, plants his case upon the theory of the given instruction. This latter instruction determines the theory of the case, and, having asked it, he must stand by it. The defendant; on the other hand, affirms his instructions, asked after his peremptory instruction is refused, to be right only for the purpose of meeting the theory advanced in those given for plaintiff. For that purpose, and to that extent only, is he bound by them. For this reason he is held not to have waived his peremptory instruction. But the plaintiff has the initiative. At his request instructions are given by the court upon a certain theory. He invites the defendant, indeed forces him, to meet this theory, and trys out the case so made before the jury. If defeated on this battlefield which he “pitches,” he cannot be heard in the appellate court to say that the case was instructed upon the wrong theory, and that his first theory, rejected by the court, was the only true one. This particular point is before this court for the first time; nor can we find, though we have diligently searched, a discussion of it by text-writers or by the courts of other States. Two cases in the Kansas City Court of Appeals — Bealey v. Blake’s Admr., 70 Mo. App. 229, and Eagan v. Martin, 81 Mo. App. 676 — appear to hold contrary to the views above expressed, the Eagan case following the decision in the former case. The ruling in the Bealey case rests upon an assumed analogy between the positions of the plaintiff and defendant in this regard, and extends to the former the benefit of the rule established as to the latter, namely, that he does not waive his peremptory instruction by asking others to meet plaintiff’s case. The only authority cited is upon that proposition. As — 519 — these decisions of the Court of Appeals upon this point are not in harmony with the views herein expressed, they must be disapproved. II. When Mr. Pool, in whose hearing the alleged slander was uttered, was upon the witness stand, the following occurred: “Q. Mr. Pool, Mr. Robinson asked you if you understood what he meant by that language, and you said it was plain English. What did you understand he meant by that? A. I understood he meant— “Mr. Robertson: I object to that. “The Court: The objection is sustained. “To which ruling of the court plaintiff then and there excepted and saved his exception.” Plaintiff insists that he had a right tó ask the hearer his understanding of the words spoken by defendant, and appeals for authority to the views expressed by this court in Julian v. Star, 209 Mo. 35; referring to the majority opinion, at pages 75-82, and to pages 113-128 of the dissenting opinion, both opinions conceding this right in certain cases of slander. That case, however, does not concede an unqualified right in all slander cases to take the opinion of a hearer as to the meaning of the words spoken. On the. con- . trary, the evidence is held to be competent only when the words used are ambiguous, and when there are, attendant circumstances which cannot be fairly placed before the jury. In the dissenting opinion in that case (p. 113), Graves, J., says: “To our minds there is and should be a clearly marked line of distinction between libel and slander cases in this regard. We can see reason for the rule in the case of slander or spoken words. Accompanying accent, intonation, facial expression, tone, manner, gesture, etc., are seen and heard by the witness. These things are difficult of description before a jury, so — 520 — that it is practically impossible to place the jury in the place of the hearer. Ex necessitate, the understanding of the hearer becomes essential in the administration of justice, and his bald conclusion of the meaning of the language used is admitted.” But further, on page 115: “But this rule should not apply to slander cases, where the words are unambiguous, and not accompanied by the things aforesaid which are difficult to describe or reproduce before the jury, nor to libel cases.” On the same point, we find this in Starkie on Slander & Libel (5 Ed.), p. 466: “Where the words spoken or the meaning of the terms employed are ambiguous, and it is doubtful in what sense the speaker intended them, the question is in what sense the hearers understood them; and if, when words may have two meanings, the hearers understood them in an actionable sense, the action is maintainable; for the slander and damage consist in the .apprehension of the hearers.” We said in the Julian case of this statement last quoted: “The author there is speaking of words that may have two meanings, one actionable, the other not so.” The words alleged to have been spoken in the case at bar are: “Everhart (meaning the plaintiff) and a negro, Snell (meaning one James Snell), a negro man, ran off together once on money obtained1 by a forged check. ” These words, in themselves, have no double meaning. Each word is plain English. The ambiguity lies in their application. Did the implication that a forgery had been committed apply to plaintiff, or to the negro, or to either or both? This was a question for the jury to settle in the light of all the evidence, and its solution did not depend upon any facts or circumstances which were known to the hearer and could not — 521 — be known to the jury. There were no extraneous circumstances calling for an expert opinion. The objection was, therefore, properly sustained. III. Plaintiff complains also of instruction num7 bered 3 given for the defendant. Here it is: ‘ ‘ The court instructs the jury that it is for you to determine whether the defendant meant by the use of said language to charge the plaintiff with the crime of forgery, and if you find that said language was used by defendant without malice and in good faith, in relating what he had heard of the plaintiff, not intending thereby to injure the plaintiff or charge him with being guilty of the crime of forgery, and further find that said words were not understood by the persons who heard them as charging that Ownby Everhart made or had uttered a forged check, then said language so used does not constitute slander, and you will return a verdict for the defendant. Or, if the defendant said that he understood or heard that the plaintiff and a negro man named Snell ran off together once on money obtained by a forged cheek, and if you believe from the language used under the circumstances defendant did not charge the plaintiff with the offense of forgery, and if none of the hearers understood it as charging plaintiff with the crime of forgery, then the defendant is not liable, and you will so find.” This instruction is the converse of instructions 1 and 2, given for plaintiff, and presents the same theory. Plaintiff is therefore in no position to object that it is improper. [Huss v. Bakery Co., 210 Mo. 44.] Finding no reversible error, the judgment is affirmed. All concur except Woodson and Kennisln,, JJ., who dissent.