author: DOERNER, Commissioner.

text:
    Azlee WHITLOCK, Jr., Plaintiff-Respondent, v. Lily WHITLOCK, Defendant-Appellant.
    No. 31988.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      Silas E. Garner, St. Louis, for defendant-appellant.
    Vincent S. Moody, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This appeal, recently reassigned to the writer, is from an order overruling defendant’s motion to set aside a decree of divorce granted plaintiff by default.

Plaintiff filed his petition in the Circuit Court of the City of St. Louis on December 19, 1963, alleging therein, among other matters, that three children were born of his union with defendant; that two others were born during the marriage, of which he was not the father; and that defendant was then pregnant with a third child of which he was not the father. Defendant was duly served with a summons and a copy of the petition on December 26, 1963, but did not file any responsive pleading or otherwise enter her appearance. On January 27, 1964, more than 30 days after service of process, defendant’s default was noted, and the case was docketed for trial on February 12, 1964. Defendant did not appear on that day and after hearing plaintiff’s evidence the court entered a judgment and decree granting plaintiff a divorce and custody of the three minor children he had stated were his.

On February 27, 1964, the defendant filed a verified motion captioned “Motion to Set Judgment and Decree Aside” in which she averred that she had a good and meritorious defense in that the charges made by plaintiff were false and untrue, and that “defendant failed to file an answer and defend the charges, only because she was told by the plaintiff that he was not going to prosecute the cause; that she trusted him and did not seek legal advice until she learned that plaintiff had not kept his promise to her disadvantage. * * * ” Attached to her motion was an answer and cross-bill which defendant proposed to file upon the setting aside of the decree. A hearing on the motion was had on May 22, 1964, at which defendant testified that after she had been served with the summons and the copy of the petition the plaintiff visited her at her home regularly, told her she didn’t have anything to worry about, that he was going to drop the divorce suit, and that if she had known he was going to prosecute the suit she would have hired a lawyer and come to court. She also stated that she had had all six children by plaintiff, and that she first learned that a decree of divorce had been granted plaintiff when she received a copy of the decree from the court on February 21, 1965. On cross-examination she admitted that she had received a letter from the domestic relations investigating department regarding the divorce suit; that she talked to the investigators about the case on February 5, 1964; and that her conference with that department was after plaintiff had told her he was not going ahead with the divorce action. She also admitted that she had read the allegations in the petition that two of the children did not belong to plaintiff and that she was pregnant with the third of which he was not the father; that she and her husband had been separated for several years; that plaintiff had been overseas in the Army; and that although plaintiff visited her sometimes two or three times a week they had had no marital relations while the divorce suit was pending.

Plaintiff then took the stand and testified that while the suit was pending he had seen defendant only once, about January 27, 1965, when he picked up the three children to take them to his aunt, who was visiting in St. Louis and wanted to see them. He denied that he had ever told defendant that he was going to drop the divorce suit, and stated that he had never discussed the action with defendant in any way.

Defendant was recalled, and again she stated that after the suit had been filed she had been seen plaintiff, “Regularly every week” at her house. Asked to fix the date when plaintiff had told her that he wasn’t going to try the suit on February 12, she answered, “The 7th of January.” She added that every time she saw him he told her he wasn’t going to prosecute the case. Counsel for plaintiff asked to see a book which defendant had used to refresh her recollection, and asked what the entry on January 7 with $10 after it meant. Defendant replied that it was when plaintiff gave her that amount for support. Counsel then pointed out that the next entry was on February 21 and that those were the only two entries. Defendant answered that there was also an entry for “January two.” When asked whether she wrote down in the book every time plaintiff came by, defendant replied, “Most of the time.”

At the conclusion of the hearing on May 22, 1964, the court took the matter under submission, and on May 27, 1964, made and entered an order overruling defendant’s motion to set aside the judgment and decree. On June 3, 1964, defendant filed her notice that she was appealing “ * * * from the judgment overruling her motion to dismiss default judgment entered in this action on the 27th day of May, 1964.”

The parties are far from agreement as to the nature and timeliness of defendant’s motion. At one point in her brief (consisting of only two and one-half typewritten pages) defendant refers to her motion as a “ * * * brand new lawsuit * * * ” and indicates that she considers it a petition for review under “The three year statute for review * * without citing the statute to which she refers; and at another place in her brief she terms her motion, “ * * * a new lawsuit which serves the same purpose as the Writ of Coram-Nobis, which brings to the Court facts and material it did not have at the time of the Judgment. ■ * * * ” On the other hand, plaintiff contents himself with the assertion that the motion was not a motion for a new trial and that the court lost jurisdiction over the judgment after 30 days from its entry, but he does not attempt to state what the motion was.

Formerly there were two statutory provisions which authorized the vacating of a judgment upon motion made within three years, Sections 511.170 and 511.250, V.A.M.S. The former has been superseded by Civil Rule 74.12, V.A.M.R. and the latter by Rule 74.32, V.A.M.R. By her reference to the three year statute for review defendant can not have had in mind Civil Rule 74.32 for that rule concerns only a motion based upon an irregularity which is patent on the record, not one depending upon proof of facts dehors the record such as were pleaded in defendant’s motion. Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo., 337 S.W.2d 87; Edson v. Fahy, Mo., 330 S.W.2d 854; Carr v. Carr, Mo., 253 S.W.2d 191. Presumably the statute to which defendant alluded in her brief was Section 511.170, V.A.M.S., superseded by Rule 74.12. But what the defendant overlooks, however, is that the instant judgment was one for divorce and Civil Rule 88.07 (which superseded Section 452.110) expressly provides that, “No petition for the review of any judgment for divorce shall be allowed, * * State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Kern v. Kern, Mo.App., 141 S.W.2d 164; Smoot v. Smoot, 227 Mo.App. 1246, 61 S.W.2d 373. Hence if the motion was a petition for review under Rule 74.12, as defendant seems to contend, it could not be allowed. Neither was the motion one in the nature of an application for a writ of error coram-nobis, as defendant also suggests, for it lacks the requisites set forth in Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048; Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W. 435; and State v. Campbell, Mo., 307 S.W.2d 486. Nor was it, to continue the process of elimination, a direct attack in the same cause upon the jurisdiction of the court ab initio to render the particular judgment in the particular case, as in State ex rel. Coonley v. Hall, 296 Mo. 201, 246 S.W. 35 and Wenzel v. Wenzel, Mo.App., 283 S.W.2d 882; nor a bill in equity to set aside the judgment for fraud on the court in its procurement. State ex rel. Conant v. Trimble, supra; Wenzel v. Wenzel, supra.

If defendant’s motion did not fall into any of the foregoing categories, then what was it? Despite its caption, and plaintiff’s argument to the contrary, we are of the opinion that it was a motion for a new trial. It was filed on the fifteenth day after the entry of the judgment, and therefore within the time specified in Civil Rule 78.02. And it was based on one of the grounds on which a court is expressly authorized to grant a new trial. Civil Rule 78.01 provides, in part, that the court may award a new trial where it is shown that there was, “ * * * a fraud or deceit practiced by one party on the other * If it was true, as defendant alleged in her motion, that she was prevented from appearing and presenting her defense because plaintiff told her he was not going to prosecute the action and would dismiss the case, then she was the innocent victim of a palpable fraud, and the court was authorized to set aside the judgment and grant her a new trial. Smith v. Smith, 164 Mo.App. 53, 148 S.W. 115; Barnes v. Childers, Mo.App., 246 S.W. 342. And since the motion for a new trial was timely filed, the court was not limited to 30 days from the entry of the judgment within which to act, as plaintiff contends, for the judgment did not become final until the motion was disposed of, or if not passed on within 90 days from the date it was filed, then after that period of time had elapsed. Civil Rules 78.02, 78.04.

Since the defendant’s motion was based on facts dehors the record it did not, of course, prove itself and the burden rested upon defendant to show the court by convincing1 proof that plaintiff had practiced fraud and deceit upon her. McMahon v. May Department Stores Co., Mo., 374 S.W.2d 82. Defendant insisted that plaintiff had told her he was not going to prosecute the action and would dismiss it. With equal vehemence, plaintiff denied that he had ever made such representations to defendant. Thus there was an irreconcilable conflict in the oral testimony which the trial court resolved in favor of the plaintiff. Ordinarily, under that state of the record in a non-jury case, an appellate court defers to the trial court’s finding since it is in a much better position to judge as to the credibility of the witnesses. McMahon v. May Department Stores Co., supra; Mueller v. Mueller, Mo., 318 S.W.2d 365. We perceive no reason, nor has one been suggested, why we should not do so in this case.

The court did not specify in its order the grounds upon which it overruled defendant’s motion. Defendant assumes that the court denied her motion on the erroneous belief that it had lost jurisdiction of the case and that the judgment had become final because more than 30 days had elapsed since the judgment was entered. There is no basis in the court’s order for such an assumption, and we cannot speculate or presume that it erred. Hardy v. McNary, Mo., 351 S.W.2d 17; Arnold v. Fisher, Mo.App., 359 S.W.2d 602. On the contrary, the presumption indulged in by an appellate court is that the trial court’s action from which the appeal was taken was correct, and defendant as the appellant has the burden of affirmatively establishing that the court erred. Morris v. Willis, Mo., 338 S.W.2d 777; Hardy v. McNary, supra. She has failed to sustain that burden.

The judgment should therefore he affirmed, and the Commissioner soyrecom-mends. ^

PER CURIAM.

The foregoing opinion of DOERNER, C., is adopted as the opinion of this court.

Accordingly,\judgment is affirmed.

WOLFE, P. J.VuDDY, J., and ROY W. McGHEE, Special Judge, concur.


source: Caselaw Access Project

author: RUDDY, Presiding Judge.

license: Public Domain

text:
    Mae SMITH, (plaintiff) Appellant, v. J. J. NEWBERRY COMPANY and Walter Tobias, (Defendants) Respondents.
    No. 31717.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      James F. Koester, St. Louis, for appellant.
    Evans & Dixon, Henry D. Menghini, St Louis, for respondents.
   RUDDY, Presiding Judge.

This is an action to recover damages for slander, brought by plaintiff against defendants, J. J. Newberry Company, a corporation, and its store manager, Walter Tobias. A jury trial resulted in a verdict for plaintiff against both defendants for $5000 actual damages and $2000 punitive damages or a total of $7000. The separate after trial motions of the defendants for judgment in accordance with their motions for a directed verdict were overruled and their separate motions for a new trial were sustained on the ground that the verdict was against the weight of the evidence. From the order and judgment sustaining defendants’ motions for new trial plaintiff has appealed.

Plaintiff contends that the action of the trial court in sustaining the motions of the defendants for a new trial was an abuse of discretion because defendants failed to offer any evidence whatsoever in defense of plaintiff’s action. Defendants deny this contention made by plaintiff and they contend that plaintiff failed to make a submissible case against either defendant. This contention of the defendants was duly preserved by them in the trial court by timely trial motions and in their after trial motions to set aside the verdict and to enter judgment in their favor or in the alternative for a new trial and, therefore, they are entitled to have this contention considered on appeal even though the defendants have filed no appeal. Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609; Whalen v. St. Louis Public Service Co., Mo.App., 351 S.W.2d 788.

As said in the case of Masdon v. Stine, Mo.App., 66 S.W.2d 579, it needs no citation of authorities on the point that if there was not a submissible case made, the court should have given the peremptory instructions and sustained defendants’ motions for directed verdict and it is just as true that if there was not a submissible case under the evidence, then the court had no right to grant a new trial because the verdict was against the weight of the evidence.

Our first duty is to determine whether or not defendants’ contention that plaintiff failed to make a submissible case has merit. In doing so, we are constrained to view the evidence in the light most favorable to the plaintiff, giving her the benefit of all reasonable inferences therefrom, not in conflict with her theory. Whalen v. St. Louis Public Service Co., supra.

Plaintiff started to work for the defendant, J. J. Newberry Company, in April of 1951 and worked for them continuously until the time she was discharged on May 15, 1958. Her initial position was that of saleslady and she continued in this position until the time of her discharge, at which time she also worked in the stockroom. She was a salaried employee and when the sales would increase she would receive a bonus. A part of her duties as a saleslady was to ring up the cash sales on the cash register provided for that purpose. Prior to the time defendant Tobias came to the store as manager, she was working on the first floor of the store in Men’s and Boy’s Wear, but when Tobias came to the store as manager, she was put in a department in the basement known as the pet and tinware department. She said the work in that department was “far more menial in that department,” adding, "we had to scrub bird cages and things like that and, fish bowls.” When Tobias first came to the store as manager she worked 40 hours a week. At the time of her discharge and shortly before that she worked part time and each week’s time varied between 18 and 24 hours per week.

While she was assigned to the pet and tinware department in the basement she was required to makes sales in any of the departments of the basement when she was needed. There were four cash registers in the basement. Each cash register was for a different department. It seemed that there was a cash register on the east side of the store for the pet and tinware department and one for the toy department and one in the middle of the store for men’s and boy’s wear and one in the back, that is, on the other side of the basement from the department in which plaintiff worked, for hardware and two or three other departments. Plaintiff and the other sales ladies were under instructions to use the cash register in the department in which the sale was made. This was done in order to keep a record of the sales made by each of the departments involved. This procedure was followed because Tobias told them that “he wanted us to increase our sales in those departments and the only way we could do that was to ring the registers in those departments.” Plaintiff said that at one time there was no special register assigned to any girl or department and that they could ring up the sales on any register but that this arrangement was changed by Tobias, as heretofore stated. All sales had to be rung up on the register because, as she said, “the rule was we were not to carry any money on our persons.”

On May 15, 1958, between 2 and 3 P.M., which was during the normal working hours of the plaintiff, she was summoned by defendant Tobias to the ladies lounge on the second floor of the J. J. Newberry Company’s store. It was at this time that the words were uttered that form the basis of this lawsuit. Prior to the time she was summoned to the ladies lounge on the second floor, she was engaged in some sales transactions in the basement, one of which transactions ultimately led to the conversation in question. In relating the sales transactions plaintiff said she was standing at the wrapping station, which is approximately in the center of the basement, and just to the left of where she was standing there was a cash register two or three feet away from the spot where she was wrapping a large package of merchandise, which she said included a large bread box two or three feet square and other items which came to a total sales price of $6.00. The lady purchaser of these items had handed plaintiff a ten dollar bill. Before she rang up this sale and deposited the $6.00 in the cash register, a Mrs. Nell Crossman, who was later identified as a Pinkerton detective agent, walked up to the plaintiff and handed her a hammer and a five dollar bill and asked to be waited on immediately. Plaintiff said in order to expedite the sale, because she had 3 or 4 more people to wait on, she put the five dollar bill in the cash register near her which was open at the time and took out five single dollar bills and gave Mrs. Nell Crossman $4.00 and kept one of the dollar bills in her (plaintiff’s) hand. She did not ring up this sale of the hammer on the cash register out of which she took the change, but immediately after taking out the change for the five dollar bill she started to walk to the other side of the store and there rang up the one dollar sale for the hammer in the cash register provided for hardware department sales, together with another ten cent sale that she had made as she was walking across the store and, as plaintiff said, “that completed the transaction as far as I was concerned.”

At the time the sale for the hammer was made plaintiff did not know that Mrs. Crossman was an agent for the Pinkerton Company; she did not identify herself and all that Mrs. Crossman did was to hand plaintiff a hammer and a five dollar bill, together with a bag. Plaintiff said that when she made the change of five one dollar bills for the five dollar bill handed her by Mrs. Crossman, another employee, named “Mary,” had just used the register and it was still open and that she told Mary, “I am taking change out of the register.” Plaintiff said in the course of the sale of the hammer to Mrs. Crossman she had money from three different people for sales and had not rung them up on the cash register because she was trying to wait on all the people before ringing 'up the sales. It was shortly after plaintiff completed the transactions referred to above that she was summoned by Tobias to the lounge on the second floor.

When she arrived at the lounge, Tobias and a lady (Mrs. Crossman), whose name at the time she did not know, were present. She said she did not see anyone else present when she first went in. Because of the contentions raised by the defendants we feel it necessary to set out the exact conversation that took place between Tobias and plaintiff. When plaintiff was asked to tell what conversation “ensued up there,” meaning in the lounge, she answered:

“Mr. Tobias asked me if I remembered this lady, that’s the first words he spoke as I remember, he said, ‘Do you remember this lady?’ And I said, ‘Yes, I do.’ And I did, I remembered her. And he said, ‘Did you wait on her?’ And I said, ‘Yes.’ And he said, ‘What did you do with the money that you took from her?’ And I said, ‘Well, I rang it up, of course.’ And he said, ‘She said you didn’t ring it up.’ And I said, ‘Mr. Tobias, are you accusing me of taking the money?’ And he said, ‘Well, she said you took it.’ And I went and I said, ‘Well, if you are accusing me of stealing, well, I want to be searched.’ And he said, ‘It doesn’t necessarily mean if there is no money on your person that you haven’t hidden it in the store somewheres.’ Those were the words he used. Q. Was there other conversation then, following this, pertaining to being fired and so forth? A. Yes. He had already said — because he said, when she said that I had taken the money, that I hadn’t rung the money up, I said, ‘Mr. Tobias, are you accusing me of stealing?’ And he said, well, that was proof enough for him. He said, ‘You can go get your money.’ He said, ‘It’s ready for you.’ And I said to him, ‘Do I look like a thief?’ And he said, very sarcastically, he said, ‘Do thieves have a special look?’ ”

No search of plaintiff’s person was made in the store.

In her cross examination plaintiff testified that the conversation just related took place during her normal working hours and that Tobias was an employee of the J. J. Newberry Company at the time and that she was one of the employees that worked under his supervision. She said all of the conversation that took place related to the transaction that had taken place a little bit earlier in the basement with Mrs. Nell Crossman. In the course of her cross-examination the following testimony was given by plaintiff:

“Q. Will you explain to the Court and jury why you brought up the question of stealing, when Mr. Tobias asked you about this particular sale? * * * A. I brought it up in answer to his asking me what I did with the money, and then he said, Mrs. Cross-man said I didn’t ring it up. Q. If you hadn’t rung up some money, that would be a violation — A. That would be stealing, if I hadn’t rung it up. Q. Would it necessarily be stealing? Might not that just mean you didn’t ring up the sale? Wouldn’t that be possible? A. No, because the rules were that we were to ring them up.” Again she was asked “Q. Why did you think anybody was accusing you of stealing; why did you ask that question at that point? A. Because I realized if I hadn’t put it in the register — the rule was we were not to carry money on our person, and if I had not put it in the register, I would have it on my person.” She said that at the time she was sure someone was accusing her of stealing the money.

On redirect examination plaintiff said that Tobias did not tell her what she was being fired for, that is, whether for not ringing up the sale or not using the right cash register. Parts of a deposition of To-bias were introduced in evidence by the plaintiff wherein Tobias testified that Mrs. Crossman, the Pinkerton agent, was not aware of the fact that the money had been put in another cash register.

In her direct examination plaintiff was asked, if during the first of the conversation between herself and Tobias, anyone entered or came into the ladies lounge. She answered, “Yes, I think this girl was in there all the time. She came out of one of the booths. Q. Are you referring to one of the employees ? A. One of the employees; Hazel Fotsch.”

Following the conversation that took place in the lounge, plaintiff was immediately discharged and thereafter she con-suited Mr. Robert E. Sargent, Senior Business Agent of the Retail Employees’ Union, of which union plaintiff was a member. Thereafter, plaintiff went to work for Woolworth Company where she was employed as a cashier and bookkeeper.

Robert E. Sargent testified that prior to the incident in question there had never been any complaints concerning the integrity of plaintiff. Another witness testified that she was acquainted with plaintiff for 9 years and that her reputation for honesty was very high. She was aware that plaintiff had been discharged from the J. J. Newberry Company.

During the course of the direct examination of Mary A. Massie, a witness offered by plaintiff, she was asked: “Mrs. Massie, did you overhear or become aware, or, of your own knowledge, know any incident involving Mae Smith and Mr. Tobias, that occurred prior to May 15, 1958? A. I don’t know what you mean by ‘incident.’ Q. Well, anything that would evidence or show any hard feeling or bad feeling between these two people.” Thereafter, the attorney for the defendant objected to the question as calling for speculation, conjecture and for an opinion of the witness. The court sustained the objection. The witness was then asked if it was general knowledge among the sales people or personnel of the store as to the reason for plaintiff’s discharge and an objection to this question was sustained by the court.

During plaintiff’s direct examination she said that when Mr. Tobias first came to the store the relationship between her and him was very friendly and that she never noticed any unfriendliness in his attitude. Thereafter, she was asked this question: “Was there quite a drastic change in Mr. Tobias’ attitude toward you and his treatment of you?” She was asked this question after she testified that his attitude later had changed quite definitely. An objection was made by defendants’ counsel to this question and the objection was sustained by the court. Thereafter, plaintiff’s counsel asked the court: “Are you going to sustain any objection as to the relationship between the plaintiff and the individual defendant prior to this occurrence?” The court then asked plaintiff’s counsel if there was anything special that he had in mind and thereafter a discussion took place off the record. The nature of the discussion is not shown in the record before us. Upon returning to the record the court said: “Yes. I would sustain an objection to that, if asked.” We can only assume that the discussion that took place off the record had to do with the question propounded to the court by plaintiff’s counsel as to whether or not the court was going to sustain any objection as to the relationship between the plaintiff and the individual defendant prior to the occurrence in question.

After plaintiff had concluded her evidence and her attorney had informed the court that the evidence offered “will conclude the plaintiff’s case,” defendants’ attorney told the court that he was not going to put on any evidence. At this point defendants’ attorney filed a written motion in behalf of each defendant for a directed verdict, which motions were overruled by the court. Thereafter, the record shows the following proceedings took place in the chambers of the court, not in the presence of the jury:

“Mr. Menghini: (attorney for defendants) It ^appears that the plaintiff’s attorney wishes to make an offer of proof, and I object to the Court entertaining an offer of proof at this time, for the reason that it is not timely; and, furthermore, that the plaintiff’s case has been closed and motions for directed verdict, as to both defendants, filed and ruled upon.
“Mr. Byrne: (attorney for plaintiff) I would like to make the following offer of proof; namely: That had plaintiff been permitted to testify concerning the relationship between she and the co-defendant, Mr. Walter Tobias, immediately prior to the occasion out of which the lawsuit arose, that the evidence would have shown that Mr. Tobias’ feeling changed from one of good-will towards plaintiff to one of spite and malice, and that this was brought about by plaintiff, Mae Smith, walking into a room in which the Defendant Tobias was engaged in an embrace with a married woman employee, a woman other than his wife; and that subsequently to that occasion, Defendant Tobias, as manifested by his subsequent conversations and actions with the plaintiff, namely: demeaned her in her position at the store in the type and caliber of work that she subsequently did; and, in his conversations with her, manifested an ill-will and malice toward her, and that this ill-will and malice, because of this prior situation, is what occasioned, in fact, the occurrence complained of in plaintiff’s petition, and was the outcome or was the precipitating factor in the utterance of the slanderous words, as alleged by plaintiff.”

Defendants’ attorney then renewed his objection to the offer of proof and moved to have it stricken from the record, which motion and objection were sustained by the trial court.

In support of their contention that plaintiff failed to make a submissible case defendants assert that plaintiff’s evidence showed affirmatively that whatever words were spoken by defendant Tobias on the occasion in question were spoken on an vc-easion of conditional or qualified privilege and that the trial court so ruled in reading defendants’ instruction No. 5 to the jury. They further assert that inasmuch as the words were spoken upon an occasion of conditional or qualified privilege, it was necessary for plaintiff to produce substantial evidence of actual malice toward the plaintiff on the part of either defendant and that plaintiff failed in this respect and for this reason failed to make a submissible case.

It is true that the court in its instruction No. 5 offered by the defendants and given by the court told the jury that the occasion on which the publication complained of in this action by the plaintiff was made was a privileged occasion and further instructed the jury, “and therefore unless you should find from the preponderance or greater weight of the credible evidence that in speaking the words charged defendant Tobias was actuated by actual or express malice, then your verdict should be for both defendants.” We think the trial court was correct in ruling, as a matter of law, that the occasion on which the words were uttered was one of qualified or conditional privilege. Hellesen v. Knaus Truck Lines, Inc., Mo., 370 S.W.2d 341; Rauch v. Gas Service Co., 241 Mo.App. 976, 235 S.W.2d 420; Gust v. Montgomery Ward and Co., 229 Mo.App. 371, 80 S.W.2d 286.

In the case of Hellesen v. Knaus Truck Lines, Inc., supra, the Supreme Court, quoting from an opinion in an Arkansas case [Polk v. Missouri Pac. R. Co., 156 Ark. 84, 245 S.W. 186, 29 A.L.R. 220] said:

“ ‘ “A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable. Upon such occasion and under such circumstances, although the matter communicated is defamatory and false, the law will not infer malice, but the existence thereof must be shown by some evidence beyond the falsity of the statements communicated.” ’ ” (370 S.W.2d l. c. 345.)

In the case of Garey v. Jackson, 197 Mo.App. 217, 193 S.W. 920, which was an action for slander, we said at l. c. 922:

“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.”

To the same effect, see 53 C.J.S. Libel and Slander § 89, pages 143, 144, 145; Rauch v. Gas Service Co., supra; Boehm v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 710; Gust v. Montgomery Ward and Co., supra.

We think the words uttered by Tobias were actionable per se in that the conversation when considered in its entirety charged plaintiff, as she understood, with the stealing of the money in connection with the sale of the hammer to Mrs. Nell Cross-man, the Pinkerton detective. However, notwithstanding the actionable nature of the words and th°eir defamatory character and their apparent falsity, there can be little doubt that they were uttered in connection with the discharge of a duty that Tobias had as manager of the J. J. Newberry Company store to the plaintiff who had a corresponding duty to the corporate defendant, her employer. The words spoken were relevant and germane to a transaction that plaintiff had consummated with Mrs. Nell Crossman. The words spoken by Tobias were in the interest of and for the protection of the corporate defendant. The words were uttered on a proper occasion, during normal business hours and were based upon a probable cause, inasmuch as Mrs. Nell Crossman, the Pinkerton detective agent, had reported the transaction to Mr. Tobias and he in the honest belief that her report was true, questioned the plaintiff who had a duty in the transaction. No doubt exists that both the defendant Tobias and the plaintiff had a duty and interest in connection with the matter discussed in the lounge on the second floor of the corporate defendant’s store. The words uttered and circumstances related above form a sufficient basis to support the defense by defendants of qualified privilege.

As said by the Supreme Court in the Hellesen case, upon such a privileged occasion and under such circumstances although the matter communicated is defamatory and false, the law will not infer malice but the existence thereof must be shown by some evidence beyond the falsity of the statements communicated. As we said in the case of Boehm v. Western Leather Clothing Co., supra, the occasion of qualified privilege rebuts the presumption of malice which the defamatory publication otherwise imported, “the question then resolves itself into one of whether there was evidence of actual or express malice” on the part of the defendant “so as to have overcome and destroyed the privilege and have prevented the occasion from furnishing a legal excuse.” (161 S.W.2d l. c. 717.) We said in that case:

“By actual or express malice is meant malice in fact as distinguished from implied malice, that is, the actual presence of an improper motive on the part of the defendant implying the purpose and desire to injure. It may, and in common acceptation does, denote that the defendant was actuated by spite or ill will towards the plaintiff, but in its legal significance such degree of personal hostility is not in all events essential. On the contrary, it is the willfulness or evil intent of the act — the wanton disregard of the rights and interest of the party injured — which suffices to render the act malicious in its legal sense; and hence the usual definition that by malice is meant the intentional doing of a wrongful act without just cause or excuse.” (161 S.W.2d l. c. 717).

It is true that on some occasions when intemperate language is used it serves to destroy the qualified privilege. However, we find no words used by defendant Tobias at the time of the conversation in question, with the plaintiff, that can be called intemperate language or held to be expressions in excess of what the occasion warranted. Boehm v. Western Leather Clothing Co., supra; Gust v. Montgomery Ward & Company, supra.

In the case of Garey v. Jackson, supra, we said that the occasion on which a qualified privileged communication is made rebuts the inference 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.” (193 S.W. l. c. 923.)

When there is a sufficient basis to support the defense of qualified privilege it becomes the burden of the plaintiff to pr^re that the statements complained of were actuated by express or actual malice. We find no evidence in this record to show that defendant Tobias was actuated by a wilful or evil intent in uttering the words charged by plaintiff and, as the cases hold, where there is an absence of the intentional doing of a wrongful act without just cause or excuse, there is no showing of express or actual malice. There is nothing in the evidence to show that prior to the conversation that led to plaintiff’s discharge there had been any personal disagreement between plaintiff and defendant Tobias. While it is true that she testified that after Tobias came to the store as manager she was put in the department that required a more menial type of work and that she had worked 40 hours a week prior to his arrival but thereafter she only worked on a part time basis, however, this testimony without more is an insufficient basis for showing express malice on the part of defendant Tobias. It is true that plaintiff testified that the attitude of defendant To-bias toward her had changed and because of the court’s action in sustaining an objection by defendants’ counsel to a subsequent question that pertained to the nature of the change in the attitude, plaintiff was prevented from further testifying in this area. As we shall point out later, we think the court erred in not permitting plaintiff to testify to the relationship that existed between the plaintiff and defendant Tobias prior to the day of her discharge.

Heretofore we have summarized all of the evidence presented to the jury and after careful examination of this evidence we find nothing that would support a finding by the jury of actual or express malice on the part of either defendant. In view of our finding that the conversation forming the basis of the charge of slander was made upon an occasion of qualified privilege and that there is no evidence upon which a jury could find the existence of actual or express malice, the trial court should have sustained the defendants’ motions for directed verdict at the close of plaintiff’s case. Ordinarily, such a finding on our part would require a reversal of the court’s order and judgment, with directions to enter a judgment for the defendants.

However, we think the trial court erred in not permitting the plaintiff to testify to the relationship that existed between the plaintiff and defendant Tobias prior to the day of her discharge. We also think that the trial court erred in not permitting plaintiff, after the close of her case, to testify concerning the changed relationship and attitude of defendant Tobias, which in her offer of proof she said resulted from an incident wherein she (plaintiff) walked into a room in which defendant Tobias was engaged in an embrace with a married woman employee who was not his wife. In this offer of proof plaintiff wanted to show that subsequent to this incident defendant Tobias manifested ill-will and malice toward her. We think this evidence, if admitted, would have made a submissible jury case for the plaintiff on the question of the existence of actual and express malice.

Because of this plain error in the record, which obviously, if not corrected, will result in a miscarriage of justice, we feel compelled in the exercise of our discretion to resort to Civil Rule 79.04, V.A. M.R., which provides that plain errors af? fecting substantial rights may be considered on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom. Williams v. Southern Pacific Railroad Co., Mo., 338 S.W.2d 882; Johnson v. Kansas City Public Serivce Co., 358 Mo. 253, 214 S.W.2d 5. Plaintiff having received a verdict would not be required to file a motion for new trial and point out this error to the court and Civil Rule 79.04, supra, is provided as a safeguard against a situation such as this where some great wrong might be rendered unless resort was had to this rule. Harrison v. St. Louis Public Service Company, Mo.App., 251 S.W.2d 348.

Therefore, in the interest of justice and to avoid a miscarriage of justice, we have resorted to Civil Rule 79.04, supra, and we sustain the trial court’s action in granting a new trial.

The order of the trial court sustaining defendants’ motions for new trial is affirmed and cause remanded for a new trial.

ANDERSON, J., and FRANK D. CON-NETT, JR., Special Judge, concur.


author: ANDERSON, Judge.

text:
    CITY OF ST. LOUIS, Plaintiff-Respondent, v. Joanne V. LONG, Defendant-Appellant.
    No. 31826.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      Murry L. Randall, Morris A. Shenker, John L. Boeger, St. Louis, for defendant-appellant.
    Thomas J. Neenan, City Counselor, Gary M. Gaertner, Asst. City Counselor, St. Louis, John J. Fitzgibbon, Associate City Counselor, for plaintiff-respondent.
   ANDERSON, Judge.

This appeal involves the alleged violation of certain ordinances of the City of St. Louis. In an information filed by the City Counselor it was charged that on or about March 2,1963, at or near 3965a Olive Street, within said City, defendant did unlawfully receive money for her promise or agreement to engage in illicit sexual intercourse, in violation of Ordinance 50549, Sections 773.010 and 1.100 of the Revised Ordinances of 1960 of the City. The transcript filed here does not show the result reached in the Municipal Court, but in the Court of Criminal Correction, to which one of the parties obviously appealed, defendant was found guilty by the jury and her punishment assessed at 90 days. Following an unavailing motion for a new trial, and sentencing, defendant appealed.

Emanuel Stuckey, a detective assigned to the Vice Division, Bureau of Investigation, of the St. Louis Metropolitan Police Department, was the only witness in the case. Stuckey testified that on March 2, 1963, at approximately 11:00 P.M., he went to the Hollywood Hotel, located at 3965a Olive Street, within the City, to investigate a complaint of prostitution. He had in his billfold a ten dollar bill, the serial number of which had previously been recorded at the Police Station. Stuckey related that he went to the desk, at the head of the stairs, and inquired of the clerk, Mrs. Velma Lee, if there were any girls in the hotel, if he could get a girl. After some discussion as to identification, Mrs. Lee told him to register but not to use his right name, which he did. Stuckey said he paid something more than $2.00 for the room, and was taken by Mrs. Lee to Room No. 2 and told to wait. After about five minutes Mrs. Lee returned, and told him she couldn’t get a girl and that she thought he was a detective. Following further discussion she decided he was probably all right, said she would get him a girl, and took him to Room No. 15 in a different part of the hotel. Immediately after he entered that room the defendant, whom he identified at the trial, appeared in the corridor and walked into the room. Regarding what was said and done the transcript (copied verbatim) shows that Stuckey testified:

“A Thats the lady here, and then after that, I don’t recall the exact words, ‘hello’, and ‘nice’ night’, she said when we first met, so then she inquired, what kind of party, did I want to have, and I asked her, what would it cost me, and she said, what do you want, and I said, well, what would a ‘lay’ cost me, and this is the term used for intercourse, and she said, well, how much, did you want to spend, at this point, I told her, I didn’t want to spend more than $10.00, she said, well, $10.00, will be all right, I got my billfold out, and I removed the $10.00 bill, from the billfold, at that time, I had in my right hand; the billfold was in my left hand, I said, should I pay you now, or something like that, she said, no, I want to inspect you, she pointed to the fly of my trousers, and I said, what, do you mean, you want to inspect me first, and so then I started to reach for my fly, with the hand with the bill in it, and then I started to put the bill back in my wallet, and as I was, I finally held the bill out, to Miss Long, at this time, she took the bill, took and held it in both hands, after she accepted the bill, I then reached into my pocket, removed my badge, informed her, I was a police officer, she was under arrest, then took the bill back, out of her hand, at this time.”

Immediately before the case was submitted to the jury, in response to the Court’s inquiry whether he had anything further, Mr. Gaertner, the Assistant City Counselor, stated that he would like to read into the record the Ordinance and the charge. To this defendant’s counsel objected on the grounds that there was “ * * * no reason for reading the Ordinance.” The Court remarked that it did not take judicial notice of the Ordinance, and defendant’s counsel replied, “Very well.” Mr. Gaertner then said that the City introduced Ordinance 50S49, Section 773.010 and Section 1.100, and read to the jury that part of Section 773.010 providing:

“No person shall engage in illicit sexual intercourse or sodomy for money or other thing of value, or receive money or other thing of value, for a promise, agreement, or contract to engage in illicit sexual intercourse, or sodomy.”

However, Section 1.100, which fixes the penalty for a violation at a fine of not less than $1 nor more than $500, or by imprisonment for not more than 90 days, or both, was not read to the jury.

At the conclusion of the City’s case defendant orally moved for a directed verdict of acquittal, and when that was overruled, offered no evidence.

Defendant has raised but two points in her brief. She does not attempt to invoke the doctrine of entrapment in either of them. See Kansas City v. Martin, Mo.App., 369 S.W.2d 602. The first of defendant’s points to be considered is that the court erred in overruling her motion for judgment of acquittal because the evidence was insufficient to show a violation of Section 773.010. In that connection defendant states that the Ordinance defines the offense to be the “ * * * ‘promise * * to engage in sexual intercourse * * *’ * * * ” and argues that the evidence does not reveal that defendant “promised” to do anything. What the Ordinance actually proscribes, however, is the receipt of money for a “promise, agreement, or contract” to engage in illicit sexual intercourse, not merely a promise. Taking into account the circumstances under which the conversation between Stuckey and defendant occurred, and what was said, we are of the opinion that the jury could reasonably find both a promise and an agreement on the part of defendant to engage in illicit sexual intercourse. Like a “solicitation” neither a promise or agreement to do so need be in any particular form of words. Kansas City v. Martin, supra. We hold that the court did not err in overruling defendant’s motion for judgment of acquittal.

Defendant’s remaining assignment is that the court erred in instructing the jury as to the extent of the punishment which could be assessed if it found the defendant guilty, for the reason that there was no evidence of any ordinance providing for such punishment. It is true, as defendant contends, that courts do not take judicial notice of municipal ordinances and that they must be introduced into evidence. Cox v. City of St. Louis, 11 Mo. 431; City of St. Louis v. Ameln, 235 Mo. 669, 139 S.W. 429; City of St. Louis v. Young, 248 Mo. 346, 154 S.W. 87. The transcript shows that the City introduced into evidence both Section 773.010, which defined the offense, and Section 1.100, which specified the punishment. Copies of both, certified by the City Register, have been filed in this court by the City under a stipulation, agreed to by defendant, that all original exhibits may be omitted from the transcript on appeal and be separately filed in this court. What the defendant really contends is that Section 1.100 was not introduced in evidence because it was not read to the jury. But as that Section concerned only the punishment to be -assessed on conviction, its effect was a matter of law for the court and it was not necessary to read it to the jury. Williams v. City of St. Joseph, 166 Mo.App. 299, 148 S.W. 459.

The judgment is affirmed.

WOLFE, P. J., and WOODSON OLD-HAM, Special Judge, concurs.


author: WOLFE, Presiding Judge.

text:
    Dolores ARMSTRONG, Plaintiff-Appellant, v. Earl ARMSTRONG, Defendant-Respondent.
    No. 31934.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Samuel H. Libermann, II, Kramer, Chus-ed & Kramer, St. Louis, for plaintiff-appellant.
    Karl F. Lang. St. Louis, for defendant-respondent.
   WOLFE, Presiding Judge.

This is a motion of defendant Earl Armstrong to modify a decree of divorce entered on March 3, 1953. Under the decree the plaintiff was awarded $10.00 per week alimony and $15.00 per week for support of two children born of the marriage. The decree was modified on January 29, 1960, by awarding custody of the two children to the defendant. The present motion seeks to have the alimony award reduced from $10.00 a week to $1.00 a year. The court sustained the motion and the plaintiff prosecutes this appeal.

The facts of the matter are that when Dolores Armstrong was granted a default decree of divorce in 1953 there had been two children born of the marriage, both sons. The defendant regularly paid the award of $15.00 a week for support of these children while they were in the plaintiff’s custody, and $10.00 a week alimony to the plaintiff. The defendant remarried, and in 1957 the plaintiff turned the custody of the older of the two children over to the defendant. In March of 1959 the defendant filed a motion to modify the decree seeking custody of the younger son who still remained in the plaintiff’s custody. The modification, sought at that time, was on the grounds that since the divorce the plaintiff had given birth to three illegitimate children and that the son born of the marriage, at that time age twelve, was living in an unwholesome and immoral atmosphere. The court modified the decree and gave custody of the two children to the defendant, but left undisturbed the alimony award of $10.00 a week. The defendant had missed only one month in the payment of alimony and that was because he did not have the money with which to pay it.

As stated, the defendant has remarried and he maintains a home for his present wife, one stepchild, and his two sons. When the divorce was decreed he was a mail handler working in the Post Office. He earned, at that time, $4,300.00 a year. Since then he has become a letter carrier and is now earning $5,685.00 a year. In addition to the above sum the defendant has earned $200.00 to $300.00 per year as a non-commissioned officer in the United States Army Reserve. The children are now in high school and in addition to their naturally increasing needs, the expense of their maintenance has increased. The older of the two requires a tutor which is an additional cost over those that normally occur. The defendant is building a home and bearing the cost of this, in addition to the regular expenses which he is under. Title to the home, he is in the process of constructing, is held by him jointly with his present wife. He owns no other property except one automobile. He carries $10,000 Army National Life Insurance.

The plaintiff testified that she lived with her parents who were both working. She kept house for them but she intended to get a job. She “sometimes” gives her mother $25.00, but that wasn’t enough, and she “helps” on the food. Since the decree was first modified and the two sons of the marriage taken from her she has had two more illegitimate children, bringing the total of her illegitimates to five. She said that a man named Riley was the father of four of the children and that .Riley gave her $6.00 a week for about two years but that she was not getting any money from him at the time of the hearing below. She was receiving $101.00 a month State Aid for her five illegitimate children.

As stated, the trial court, upon the foregoing evidence, sustained the defendant’s motion to modify a decree and reduced the alimony, as requested, to one dollar per year. The first point that appellant raises is that the court erred in so doing in that a decree for the award of alimony is only to be modified upon a change of circumstances and that no such change has here occurred since the last modification which awarded custody of the children of the marriage to the defendant. It has been frequently held that increased expenses for the maintenance and education of a child is sufficient change of circumr stances to justify a modification increasing the award for the child’s maintenance. Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354; Bradshaw v. Bradshaw, Mo.App., 317 S.W.2d 21; Hawkins v. Hawkins, Mo.App. 250 S.W.2d 817. In the matter under consideration we have something of a converse of the situations presented in the cases above cited. In those cases the mother, having custody, was asking an increase in support money for the children; while here the defendant father, having custody, seeks to be relieved of alimony payments because of the increasing needs of the children. Circumstances warranting, we see no reason why such relief should not be granted.

In determining whether or not the circumstances warrant the modification granted, it may be well to re-state the basic rule under which such actions are tried and determined. The action for divorce and subsequent motions to modify are statutory, but we follow the rules and principles of equity in determining the rights and liabilities of the parties. Heibel v. Heibel, Mo.App., 366 S.W.2d 37; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483; Fawkes v. Fawkes, Mo.App., 204 S.W.2d 132. The appellant contends that the trial court erred in considering the immoral acts of the plaintiff and that such acts occurring after divorce in no way affect the right of the divorced wife to alimony. We are cited to cases in other jurisdictions which hold that acts of adultery by a divorced wife occurring after the decree do not constitute grounds to relieve the former husband of alimony awarded at the time of the divorce. These cases do not particularly concern us here. We have considerably more than acts of adultery. We have the plaintiff’s own evidence that she had four children by Riley who also contributed to her support. It may quite logically be inferred from her evidence that she was living in illicit cohabitation with him.

In Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, loc. cit. 1067, the court held that it would be “unseemly” that a divorced wife should be allowed to collect alimony from her former husband after her subsequent marriage was brought to the court’s attention. It appears to be more “unseemly” to permit a divorced wife to draw alimony from the modest earnings of her divorced husband, while living as the plaintiff herein is living. The matter, however, does not end at this point. We are concerned with the inherent jurisdiction of a court of equity to provide for the comfort and well being of children properly before the court. State ex rel. Stone v. Ferriss, Mo., 369 S.W.2d 244, l. c. 249.

The court in such circumstances views the needs and resources of the parties. Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886. It weighs all the equities in apportioning the earnings of the defendant and considers his obligations for his children and the maintenance of his home. These equities weigh heavily in favor of the defendant.

The plaintiff also asserts that the defendant cannot ask a court to reduce the alimony where he has failed to pay all of the installments due. Such is not the law, where, as here, the defendant has paid all alimony except for one month when he could not pay because he did not have the money. The plaintiff still has her right to collect alimony due up to the time of the modification. Equity does not require one to do something he cannot do before it extends relief.

The judgment of the trial court is affirmed.

ANDERSON, J., and WOODSON OLD-HAM, Special Judge, concur.

RUDDY, J., not participating.