tract with said Craig) provided plaintiffs would put in with said logs the aforesaid logs which were on the railroad at Hickman, Ky., all under the direction of said Craig; and if you further find from the evidence that thereupon the plaintiffs, at the direction of said Craig, did put in the said railroad logs with the logs which plaintiffs had gotten out under their said contract with said Craig, and notified the said Craig that they had so put in said railroad logs and requested the said Craig to come, inspect, measure, and take said logs; and if you further believe and find from the testimony in this case that the defendant then refused to take said logs-then your verdict shall be in favor of the plaintiffs." complained of has not been expressly averred in the petition, but is sufficiently implied by what is stated in the context of the petition, when taken as a whole, to cure the defect after verdict. The question of the sufficiency of the petition on formal demurrer is not before us, but on a retrial of the cause the plaintiffs may amend if so advised. [2] The assignment of error that defendant's peremptory instruction to return a verdict for the defendant should have been given, in that the offer of the defendant contained in its letter dated December 2, 1916, was not sufficiently definite to be made the basis of a contract, is without merit. Said At the commencement of the trial defend-letter specifically refers to the written contract between plaintiffs and Craig and states, ant objected to the introduction of any evi- "we will take what you have out under his dence on the ground that the second amended petition upon which the case was tried did the plaintiffs "put in the logs on the railroad contract," making provision, however, that not state facts sufficient to constitute a cause at Hickman, and all under his (Craig's) diof action. At the close of plaintiffs' case, rection." This said contract between plainand again at the close of the whole case, tiffs and Craig was filed with the original defendant interposed peremptory instructions petition in the case as an exhibit and was in the nature of demurrers to the evidence, which were by the court refused. Appellant's first contention is that its objection made at the beginning of the trial to the introduction of any testimony by the plaintiffs on the ground that the petition fails to state facts sufficient to constitute a cause of action should have been sustained, on the ground that though the petition alleged that the defendant agreed to buy certain walnut logs from plaintiffs, provided plaintiffs, under the "supervision" of one Craig, would put in with said logs certain other logs, the petition does not aver that plaintiffs did put in such logs under the "supervision" of Craig. It will be noted that the defendant did not attack the petition by way of formal demurrer and did not raise any objection until after the jury was impaneled. [1] A demurrer ore tenus is not viewed in the same light as a formal demurrer. Young v. Shickle Iron Co., 103 Mo. 324, 15 S. W. 771, and though a petition is informal and the cause of action is defectively stated, still, if it states sufficient facts to show a cause of action, the objection made at the trial to the introduction of any evidence should be overruled. Donaldson v. County of Butler, 98 Mo. 163, 11 S. W. 572. "Also, if a matter material to the plaintiff's cause of action is not expressly averred in the petition, but is necessarily implied in what is stated therein, the objection thereto must be taken by demurrer or motion; such objection cannot be made at the trial by objection to the evidence, and is cured by a verdict." Thompson v. Stearns, 197 Mo. App. 344, loc. cit. 352, 195 S. W. 43, 45, and cases therein cited. We do not deem it necessary to set forth plaintiffs' petition at length, inasmuch as the judgment will be reversed and the cause remanded upon other grounds. We are of the opinion, and so hold, that the matter duly introduced in evidence at the trial. It cannot be seriously contended that the letter of the defendant, bearing date of December 2, 1916, when taken together with plaintiffs' said contract with Craig, does not make defendant's offer to purchase the logs sufficiently definite to make it the basis of a contract, and we therefore rule this assignment against appellant. We next direct our attention to plaintiffs' main instruction, which purports to cover the entire case and direct a verdict, and of which instruction it is complained that it omits an essential element necessary to plaintiffs' re covery. [3] If this is so, then appellant's point is well taken. Sutter v. St. Ry. Co., 208 S. W. 851; Rissmiller v. Ry. Co., 187 S. W. 573. And such error is not cured even though the omitted element is covered by an instruction given for defendant. Walker v. White, 192 Mo. App. 13, 178 S. W. 254; Wilks v. Ry. Co., 159 Mo. App. 711, 141 S. W. 910. [4] Throughout the case the question of Craig's agency was a most important factor and one that was strongly contested on the part of the defendant in the case; yet this instruction does not require the jury, before they can find for plaintiffs, to find and believe from the evidence that Craig was the agent of the defendant company and authorized as such to waive compliance on the part of the plaintiffs with the instructions set forth in defendant's letter to plaintiffs of date of December 2, 1916, which in our opinion, under the record in this case, said instruction should have done and this omission we hold is reversible error. Said letter bearing date of December 2, 1916, specifically stated that they (defendants below) would take the logs in question "provided it is with the distinct understanding that you put in the logs on the railroad at (232 S.W.) Hickman and all under his (Craig's) direction." (Italics ours.) We are of the opinion, and so hold, that under all the evidence in the case, and viewing it in the light most favorable to plaintiffs, the plaintiffs have failed to show a compliance with the terms of the said letter in that it is conceded that Craig was not present when the logs lying at the railroad at Hickman were put on the river bank with the rest of the logs gotten out under Craig's contract, but the plaintiffs contend that through their attorney, Mr. Moore, they telephoned to Craig that they were in receipt of said letter and were told by Craig to go ahead and put the logs on the river bank, and that they thereupon did so without Craig being present in person. The defendant company specifically provided that these logs be put on the river bank under Craig's personal direction. Craig not alone knew the logs, their character, etc., but he was conversant with all the facts of the whole transaction; in addition, he was the man through whom the defendant company purchased walnut logs in that district of the state. The record discloses that the logs were put on the river bank without Craig being present, and that after they had in fact been put on the river bank plaintiffs, through their Mr. Moore, telephoned Craig that the logs had been put on the river bank. But the instruction does not, as it should, require the jury to find and believe from the evidence that Craig was the agent of the defendant company with authority to waive the requirement that "all be done under his direction," and to authorize plaintiffs to do the matter on their own hook without any one representing defendant company being present and then to accept notice, on behalf of defendant, that plaintiffs had properly complied with the said requirement. There are several other assignments of error, but in our view they need not be discussed here, in that they are not likely to occur again upon a retrial of the case. For the error in plaintiffs' instruction as noted above the judgment should be, and the same is hereby ordered reversed, and the cause remanded. ALLEN, P. J., concurs. DAUES, J., not sitting. of his wrongful act is whether the act was done while he was doing his master's work, no matter how irregularly; the words "acting within the scope of his employment" with reference legal or technical meaning, but being accepted to the acts of an ordinary employee having no in their ordinary sense. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Scope of Employment.] 2. Corporations 433 (1)-Question whether servant uttering slander acted within scope of employment for jury. Where an employee of a railroad company employed to investigate the loss of a sack of sugar falsely accused a freight hauler of stealing the sack from a station platform, the question whether the alleged slanderous words were spoken while he was so employed and within the scope of that employment was for the jury. 3. 4. Libel and slander 7 (13)-Charge of theft actionable per se. To call a man a thief is actionable per se. Libel and slander 24-No defense that words spoken to, and not of, plaintiff, when heard by others. the words were spoken to, and not of, plainIn a suit for slander, it is no defense that tiff, when heard by others. 5. Libel and slander 123(1) — Question whether slanderous words spoken for jury. In a suit for slander, the question whether the alleged slanderous words were spoken by defendant's servant was for the jury. 6. Libel and slander 24-Defamatory words must be heard and import understood by third persons. To constitute slander, it is essential that the defamatory words be heard and their import understood by third persons. 7. Libel and slander 24-Trial 234(4)— Publication an element of slander; inclusion of words "and it was so understood by those who heard it" in instruction directing verdict in slander case not erroneous. One of the essential elements in an action for slander is publication, and the inclusion of the words "and it was so understood by those who heard it" in an instruction directing a verdict was not error; it being necessary that every essential element of plaintiff's case be included in such an instruction. 8. Libel and and slander 112(I)-Testimony held to show hearer comprehended words in relation to participants in conversation. In a suit against a railroad company for NICHOLS V. CHICAGO, R. I. & P. RY. co. damages by reason of a detective employed by (No. 13765.) (Kansas City Court of Appeals. June 13, 1921.) it having falsely accused plaintiff of stealing a sack of sugar from a station platform, plainMissouri. tiff's testimony that defendant's station agent was the one who first told him of the theft held to establish that such agent, who was one 1. Master and servant 302 (1)-"Scope of of those in whose presence the slanderous employment" defined. The test of whether a servant is acting within the scope of his employment at the time words were uttered, comprehended the words in their relation to the participants in the con-versation. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 9. Corporations 521-Instruction as to liability of railroad company for employee's slanderous words held correct. In a suit against a railroad company for damages by reason of one of its employees having falsely accused plaintiff of stealing a sack of sugar from a station platform, an instruction that, if such employee was an agent of defendant, and while engaged in the course of defendant's business and acting in the scope of his employment and in the actual performance of his duties touching the loss of the sugar made such charge, and it was so understood by those who heard it and was false. to find for plaintiff, fully covered the requirements of the case, and was not misleading in view of the evidence. 10. Appeal and error 173 (2)-Plaintiff's inducement of slanderous words must be specially pleaded as justification to be considered on appeal. Mr. Houser, the ticket agent and cashier of defendant at Eldon, sent word to plaintiff that he (Houser) wanted to see him, but plaintiff was not successful in seeing Mr. Houser, but did see Mr. Adkins, freight checker of defendant at said station, and he informed plaintiff that H. W. Scott thought plaintiff had taken a bag of sugar from the station of defendant on Saturday evening. While plaintiff was in the railroad station of defendant settling bills for the freight he was then about to transport to Tuscumbia, Mr. Scott came in, and plaintiff told Scott he wanted to see him, and then asked why he (Scott) had been prowling around his (plaintiff's) truck, to which Scott replied then and there, in the presence of Urich Houser, W. L. McClung, Roy Brockman, and others: "Yes, Shorty; you stole a sack of sugar; what in the hell are you going to do about it?" That alleged slanderous words were induced by plaintiff cannot be considered on appeal where not pleaded specially as a justification. 11. Libel and slander 121 (2)—$500 not excessive for slander resulting in loss of busi-practically as stated above, and charges that ness and chagrin and discomfiture. $500 damages was not excessive for slander, where plaintiff lost business and was subject to the taunts of others, to his chagrin and discomfiture. "Not to be officially published." Suit by George T. Nichols against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. The amended petition charges the facts said W. W. Scott, agent of defendant"In the course of defendant's business for the purpose of locating a 100-pound sack of sugar alleged to have been stolen from the office of defendant, at Eldon, Miller county, Mo., and while acting within the scope of his employ * * * Appeal from Circuit Court, Miller County; ment and in the actual performance of his duJohn G. Slate, Judge. ties * * * did, in the presence of * * U. R. Houser, Roy Brockman, and divers other persons, speak of and concerning the plaintiff the following false, malicious, and defamatory words, to wit: 'Shorty (meaning plaintiff) you stole a sack of sugar here Saturday evening; now what in the hell are you going to do about it?' which said charge, if true, constituted a crime under the laws of the state of Missouri, and would subject plaintiff to degrading punishment, and was so heard and understood by those who heard it. * * * tiff further says that the false and slanderous words so spoken of and concerning the plaintiff * * * have greatly prejudiced him in his good name, fame, and reputation, and have greatly injured him in his business to his damage." Luther Burns, of Topeka, Kan., Barney Reed, of Ulman, and J. E. Du Mars, of Topeka, Kan., for appellant. H. L. Donnelly, and W. S. Stillwell, both of Tuscumbia, and Pope & Lohman, of Jefferson City, for respondent. ARNOLD, J. This is a suit for slander. Plaintiff was engaged in hauling freight from Eldon to Tuscumbia, the county seat of Miller county, Mo.; the latter being off the railroad and about 13 miles from the former. During the months of March and April, 1920, one H. W. Scott was employed by defendant railway company as an officer in its special service department, and his duties were to investigate the loss of stolen property, to secure evidence relative thereto, and to do the necessary things to protect the property belonging to defendant, or in its custody or control. About April 2, 1920, there was a bag of sugar missing from the freight station of defendant at Eldon. Plaintiff was questioned about it by one Mr. Mennell, agent of the defendant company at that point, but no accusations were made against him by said agent. Plain The prayer is for $1,000 actual and $2,000 punitive damages. The defendant filed only a general denial. The cause was tried to a jury and resulted in a verdict for plaintiff in the sum of $500. After its motions in arrest of judgment and for a new trial were overruled, defendant brought the case here by appeal. [1, 2] The first complaint of defendant is that the court erred in overruling its demurrer offered at the close of all the evidence, for the reason that defendant's agent, Scott, was not acting within the scope of his employment, nor in the performance of his duties in connection with his employer's interests, when the alleged slanderous words were uttered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) "The test is not the lawfulness or the un- [ Weigand, 134 App. Div. 644, 119 N. Y. Supp. lawfulness of the means adopted by the serv- 441, 443. The words "acting within the scope ant to accomplish his master's business, but it of his employment," used with reference to is whether such means are so far incident to the acts of an ordinary employé, have no lethe employment as to come within its scope." Voegeli v. Pickel Marble & Granite Co., 49 Mo. gal or technical meaning, but must be accepted in their ordinary sense. Whether the alleged slanderous words were spoken while Scott was employed in investigating the loss of the sack of sugar, and within the scope of that employment, was a question for the determination of the jury. App. 643. "The simple test is whether they were acts within the scope of his employment, not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By 'authorized' is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and positive orders." Wood on Master & Servant, § 307; Fensky v. Casualty Co., 264 Mo. 154, 174 S. W. 416, Ann. Cas. 1917D, 963. In the instant case the testimony shows that defendant's agent, Scott, was employed for the purpose of preventing thefts of freight and any other depredations committed against the property and interests of the company; and at this particular time he was engaged in investigating the loss of a 100pound sack of sugar, and the testimony tends to show that Scott suspected plaintiff of having unwarrantedly taken the same. The witness Houser had so informed plaintiff, and the station agent, Mennell, had questioned plaintiff about how many bags of sugar he had removed from the station on Saturday. For the purpose of showing the scope of Scott's duties, defendant introduced in evidence the printed instructions of defendant issued for the guidance of its special agents. Section 17 of said "instructions," read into the record, is as follows: "When a crime has been committed involving the interests of the company, no time should be lost, or exertion spared, to discover the offenders and bring them to justice. In making inquiries in criminal cases the greatest attention must be paid to details. Officers of short experience are apt to neglect points that appear trivial and of no importance, but which may actually be of the utmost value in the subsequent conduct of the case at issue." [3] To call a man a thief is actionable per se. Johnson v. Bush, 186 Mo. App. 107, 171 S. W. 636; State ex rel. v. Reynolds, 273 Mo. 131, 200 S. W. 296; Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020, 43 Am. St. Rep. 583; Krup v. Corley, 95 Mo. App. 640, 69 S. W. 609; 25 Cyc. 300; Milton v. Mo. Pac. R. R., 193 Mo. 46, 91 S. W. 949, 4 L. R. A. (N. S.) 282. It follows logically that to tell one, "Shorty (meaning plaintiff) you stole a sack of sugar here Saturday evening; now what in the hell are you going to do about it?” is actionable per se. [4, 5] The slanderous words were spoken to plaintiff in the presence of U. R. Houser and W. L. McClung, as testified to by each, thus clearly supplying the necessary element of publication. It is no defense that the words were spoken to, and not of, plaintiff, when heard by others. 25 Cyc. 364, 366. The question of whether the alleged slanderous words were, in fact, spoken by Scott was for the jury to determine after hearing and weighing the testimony. on both sides, and was decided in favor of plaintiff. [6] Defendant further contends that it is essential in an action for slander that the defamatory words be uttered and be heard and their import understood by third persons. This declaration of law cannot be denied. In the instant case both Houser and McClung testified that they heard the defamatory words and understood what they meant. [7] This last conclusion disposes also of defendant's contention that the court erred in giving instructions A and B. In its objection to both of these instructions, given at the request of plaintiff, defendant claims error in the use of the words "and it was so under stood by those who heard it." One of the es the publication of the slanderous words. Instruction A, of which complaint is made, purports to cover plaintiff's entire case and to direct a verdict. It is therefore necessary that every essential element of plaintiff's case be included in such an instruction. The inclusion of the words "and it was so understood by those who heard it" was not error. It appears from this section that the special agents are first required to spare no ex-sential elements in an action for slander is ertion to discover the offenders and bring them to justice, and to pay great attention to details in making investigations of criminal cases. Agent Scott testified that on the day in question he was on official duty in and about the defendant's business at the station at Eldon, and that he had in hand the matter of the loss of the sack of sugar. The test of whether a servant is acting within [8] Defendant's contention that instruction the scope of his employment at the time of A is erroneous because it limited the jury in his negligent act is: Was the act done its field of consideration in this: That the while the servant was doing his master's court should have instructed the jury that work, no matter how irregularly. Jones v. | hearers or bystanders must have understood the meaning of the conversation which they heard, and comprehended the words in their relation to the participants in the conversation, and have understood and comprehended that Nichols was being charged with the theft of a sack of sugar from the railroad company. This position is untenable. Plaintiff testified that Houser is the man who first told him of the theft of a sack of sugar, or "put him on." Can it then be seriously contended that Houser did not know the relations between Scott, Houser, the sack of sugar, and the defendant company? We think not. [9] The instruction charges the jury that"If you believe and find from the evidence in this case that one W. W. Scott on or about the day of April, 1920, while he was an agent of the defendant, if you so believe and find from the evidence that he was the agent of defendant, while he was engaged in the course of defendant's business, and while acting in the scope of his employment and in the actual performance of his duties for defendant touching the loss of a sack of sugar, and it was so understood by those who heard it, and that said charge was false, then you will find the issues for the plaintiff. The instruction fully covers the requirements of the case, and, in the light of all the facts in evidence, the jury could not have been misled. The instruction was not erroneous. [10] The next contention of defendant is that the alleged slanderous words were induced by plaintiff and defendant is not, therefore, liable. This contention is by way of justification and cannot prevail, because the matter should have been pleaded specially as a justification. It cannot be considered at this time. [11] Lastly the defendant complains that the verdict is excessive. The only testimony on this point is that of plaintiff, and that remains unrefuted by defendant. It is to the effect that plaintiff has lost business, and that he is subject to the taunts of others who greet him as "Sugar," much to his chagrin and discomfiture. Under this testimony, we do not think the verdict is excessive, and we so hold. We find no reversible error in the record. The verdict is for the right party and is affirmed. All concur. |