Swoboda v. Nowak , 213 Mo. App. 452 ( 1923 )

This is an action upon a promissory note for the sum of $200 executed by the defendants, Jacob Nowak and Louis Nowak, father and son, on October 5, 1921, payable to the order of the plaintiff, Margaret Swoboda, three months after the date thereof. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff for the amount of the note and interest, and the defendants have appealed.

The petition is in the usual form. The answer admits the execution of the note, but pleads that at the time of the execution thereof defendants were not indebted to plaintiff in any sum; that plaintiff and members of her family claimed that the defendant Louis S. Nowak had made certain derogatory remarks concerning plaintiff and one Cecelia Schlitt and threatened that they would "bring a State case" against these defendants and would send defendant Louis Nowak to the reform school and that defendant Jacob Nowak would lose both of his farms. And defendants alleged that, being cowed, frightened and intimidated by said threats, they executed the note sued upon; that the note is without consideration, was procured by duress and is void. And the defendant Louis Nowak pleads that at the time of the making of the note he was an infant under the age of twenty-one years.

The reply admits that defendant Louis Nowak is an infant, and denies generally the other allegations of the petition.

Plaintiff introduced the note in evidence and rested.

In defense the defendant Louis Nowak testified that he was then nineteen years of age, and that he and his father signed this note at the office of a notary public in Washington, Missouri; that on the night prior to the execution thereof, upon the demand of plaintiff and members of her family, he and his father and mother went to the home of plaintiff's parents where were present plaintiff and one Cecelia Schlitt, both young women, and members of their respective families; that plaintiff accused this defendant of having made a slanderous statement about her to Cecelia Schlitt, demanded an apology and money damages, and said that if he did not want to settle it that way she would sue him "on State's case for $2000," which would probably take both his father's farms; that defendant denied having made any such statement about plaintiff, but plaintiff said that she did not believe him; that plaintiff's father repeated what plaintiff had previously said about suing on state's case; and that Cecilia Schlitt and her mother took part in the conversation saying that they demanded that money be paid to them. And the witness testified that his father therefore said that it would be better to settle the matter and suggested a meeting on the following day in Washington, Missouri, and that on the following day the defendants went to the office of one Thais, a notary in Washington, where they executed the note in suit, defendant Louis Nowak signing also the following statement which was introduced in evidence by defendants, viz.:

"I, Louis Nowak, hereby confess and declare that all indecent remarks and slanderous talk I have said about Miss Margaret Swoboda and Miss Cecelia Schlitt was solely made up by myself and is absolutely untrue and without any foundation whatsoever. I hereby apologize to said Miss Margaret Swoboda and Miss Cecelia Schlitt for everything I have said about them, and promise upon my name and honor never to say it again."

Defendant Louis Nowak further testified that he was not told what "these girls" understood that he had said about them, and that he was frightened when he signed the note and the statement; and on cross-examination he denied that he had been guilty of improper conduct toward Cecelia Schlitt or that he had made to her the slanderous statement as to plaintiff concerning which Cecelia Schlitt subsequently testified, and denied having admitted on the evening prior to the execution of the note that he had made such statement.

Defendant Jacob Nowak testified that at the meeting at the Swoboda home plaintiff and members of her family threatened to have his son arrested and said that if the defendants did not want to settle the matter for $200 plaintiff's father would make a State's case out of it; and that thereupon he and his son agreed to execute the note and did so on the following day.

The testimony of the wife of defendant Jacob Nowak is to the same general effect as that of defendants concerning what occurred at the Swoboda home.

In rebuttal Cecelia Schlitt testified for plaintiff. Her testimony is to the effect that one evening in the summer prior to the execution of the note she saw defendant Louis Nowak at a party; that he asked her to walk out with him to get a drink, which she did, whereupon he undertook to take liberties with her person and made an indecent proposal to her; and that when she spurned him, he said: "Why that is nothing, I have done it with Margaret Swoboda." And the witness testified that she subsequently informed this plaintiff of what occurred upon that occasion. She further testified that at the meeting on the evening prior to the execution of the note defendant Louis Nowak at first denied having made such statement concerning plaintiff, but subsequently, being urged by his father to admit it if he had done so, said: "I will take this to my soul that I have said it." And she said that defendant Jacob Nowak said he would "pay it and settle it all in a quiet way," and defendant Louis Nowak agreed to sign a retraction; and that on the following day, in the notary's office, defendant Jacob Nowak said that he had no money but would sign a note if that was satisfactory.

On cross-examination she said, in substance, that she and plaintiff claimed that the defendants were liable to them for money damages, and that they were seeking to collect the same. She denied that anything was said about bringing a criminal prosecution against Louis, but said that she wanted Louis' father to know that she knew that his conduct amounted to a criminal offense.

Plaintiff testified that having been told by Cecelia Schlitt of the statement said to have been made concerning her by defendant Louis Nowak, she met the latter at a picnic, charged him therewith and demanded that he retract the same, but refused to do so saying that he was a minor and plaintiff couldn't hurt him. Her testimony as to what occurred at the meeting at the home of her parents is to the same effect as that of Cecelia Schlitt; that nothing was said as to sending Louis to the reform school or prosecuting him, and that no threats were made at the office of the notary. Her testimony shows that about a month after the execution of the note defendants demanded its return. On cross-examination she said that she and Cecelia Schlitt had agreed that they "would let the old man (Jacob Nowak) know that the boy had been guilty of a criminal offense," and that she might prosecute him for it; that she knew that what Louis had done was against the law and that she could have him arrested and prosecuted.

We need not refer to the testimony of plaintiff's father except to say that he testified positively that at the meeting at the Swoboda home nothing was said about bringing a State's case against Jacob Nowak, and that nothing was said about sending Louis to the reform school or prosecuting him; though the witness said that he knew that "if Louis had done the things that these girls had said he did that he had committed a crime."

The testimony of plaintiff's brother, George Swoboda, corroborated that of plaintiff as to what occurred at the picnic mentioned above. And his testimony, as well as that of witnesses for plaintiff other than those mentioned above is to the effect that at the meeting at the Swoboda home nothing was said about any criminal prosecution; that the meeting was for the purpose of insisting upon the payment of money damages to this plaintiff and to Cecelia Schlitt.

I. At the close of all the evidence in the case defendants requested an instruction peremptorily directing a verdict for them which was refused, and such refusal is assigned as error here. It is argued, in substance, that from the evidence as a whole the conclusion is irresistible that plaintiff and Cecelia Schlitt conspired to extort money from the defendants by threatening to prosecute the minor defendant, and that the note in suit was obtained by such threats of this character as to constitute duress. While there was evidence tending to support the affirmative defense, we think it too plain for extended discussion that the court could not with propriety have directed a verdict for defendants on the ground that such defense was conclusively established. II. The giving of plaintiff's instruction No. 1 is assigned as error. This instruction is as follows:

"The court instructs the jury that if you believe and find from the evidence that on or about the 5th day of October, 1921, defendant, Louis Nowak, told Cecelia Schlitt that he, the said Louis S. Nowak, had had sexual intercourse with plaintiff and that said statement was untrue, then and there accrued to plaintiff a cause of action for damages against Louis S. Nowak for and on account of said defamatory statement; and the court further instructs the jury that if you believe and find from the evidence that defendant, Jacob Nowak, is the father of Louis S. Nowak and that the said Louis S. Nowak is a minor under the age of twenty-one years, and that the said Jacob Nowak agreed with plaintiff to pay her the sum of two hundred dollars in settlement of her damages resulting from said defamatory charges made by defendant, Louis S. Nowak, and that thereafter, in pursuance of said agreement, the note in suit was executed by both defendants and delivered to plaintiff, you will find the issues for the plaintiff in the sum of two hundred dollars with interest at the rate of six per cent per annum from October 5, 1921, against both defendants."

The first complaint of this instruction is that it erroneously assumes that Jacob Nowak, the father, is liable for the tort of his co-defendant, his minor son. But it is obvious, we think, that this instruction does not proceed upon the theory that the father is liable for the torts of his minor son. The essential facts thereby required to be found sufficed to warrant a verdict against defendant Jacob Nowak on the theory that there was a valid consideration for the execution of the note by him. And the fact that the instruction also required the jury to find that he was the father of his co-defendant and that the latter was a minor (which facts were undisputed) cannot be regarded as prejudicial to defendant Jacob Nowak.

This instruction is further attacked on the ground that it purports to cover the whole case and directs a verdict without requiring a finding on the affirmative defense pleaded. As to this we need only say that the defense relied upon was fully put to the jury by instructions given at defendant's request. Where the plaintiff's instruction, though purporting to cover the whole case and directing a verdict, omits some feature which is not anelement of his cause of action but is a matter of affirmativedefense pleaded, such omission may be cured by an instruction or instructions for the defendant submitting such feature. See State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651, a recent decision of the Supreme Court en Banc, where the earlier authorities are discussed at some length.

III. Plaintiff's instruction No. 3 is as follows:

"The court instructs the jury that plaintiff is entitled to a verdict for the amount sued for, unless you find and believe from the preponderance of the evidence that there was no consideration for the note sued for or that the plaintiff and members of her family threatened they would bring a State's case against defendants, and that defendants were cowed, frightened and intimidated thereby and executed said note solely because of such threats and intimidations.

"And the court further instructs the jury that by `consideration' is meant `a benefit to the party promising or a loss detriment to the party to whom the promise is made.'"

The only complaint made of this instruction is that the concluding sentence thereof, defining what is meant by the term "consideration," is a mere abstract proposition of law, not applied in any way to the facts of the case, and constituted error. We think that this assignment is without merit. The word "consideration" was used in the early part of the instruction, and there was no impropriety in the court's action in defining the term. There is no contention that the definition thereof is in any wise incorrect.

IV. It is said that the court erred in refusing an instruction offered by the defendant Louis Nowak (instruction No. D), to the effect that if the jury found that said defendant was a minor, under the age of twenty-one years at the time of the execution of the note sued on, there could be no recovery against him. We think that the court did not err in refusing this instruction. It is well settled that, in general, an infant is liable for his torts. While the general rule applicable to the contracts of an infant is that he is not liable thereon, the general rule, on the other hand, is that an infant is liable for his torts; the latter rule being taken with the qualifications that an infant is not liable for a tort which involves an element necessarily wanting in the case of infancy. In 14 R.C.L., p. 260, sec. 36, touching this matter, it is said:

"Thus in the case of slander malice is a necessary ingredient in the wrong. But the law presumes that an infant under the age of seven years is not doli capax. It is obvious, therefore, that in the case of slander an infant cannot be held liable for his tort until he arrives at that age, or acquires that capacity which renders him morally responsible for his actions."

In the instant case it cannot be doubted that the minor defendant had reached such age as to render him responsible for a tort of the character here involved. And that he was liable for such tort, if committed, cannot be doubted. [Fears v. Riley,148 Mo. 49, 49 S.W. 836; 31 C.J. 1090; 22 Cyc. 618 et seq; 14 R.C.L. 259 et seq.] And while ordinarily an infant is not liable upon a note executed by him during infancy, unless by ratification after he reaches his majority, it has been held that, since the law makes the infant liable for his torts, he may be held liable in an action upon his note given in settlement of a tort, so long as the consideration for the note is open to inquiry, in like manner as he would have been liable on the original cause of action. [See Ray v. Tubbs,50 Vt. 688; 14 R.C.L., p. 254, sec. 32; 31 C.J. 1083; 22 Cyc. 588.] And this view we think is sound.

V. Complaint is made of plaintiff's instruction No. 4, which is as follows:

"The court instructs the jury that the law presumes the note sued on was given for lawful purpose, and it devolves on defendants to show by the preponderance of the evidence that it was given for an unlawful purpose, before they are entitled to a verdict in this case."

The attack upon this instruction is that when evidence had been adduced, pro and con, as to the character of the consideration for the note, as shown above, then any presumption of a valid and lawful consideration disappeared from the case; and that it was error to refer to such presumption in submitting the case to the jury. This argument is indeed sound. In so far as any presumption of this character existed in favor of this note, it could operate merely by way of coming to plaintiff's aid to make a prima-facie case. When the facts all came in before the jury such presumption had no further procedural purpose to serve, and it was error to throw the same into the scales in favor of plaintiff in submitting the case to the jury. [See Griffith v. Continental Casualty Co., 235 S.W. 83; Brunswick v. Insurance Co., 278 Mo. 154, 213 S.W. 50; 7 A.L.R. 1213; Prentiss v. Illinois Life Ins. Co., 225 S.W. 695; State v. Swarens, 241 S.W. 935; State v. Finkelstein, 191 S.W. 1002; Grigsby v. Haycraft,88 Mo. App. 354, l.c. 362.] In the case last cited it is said, by GOODE, J.:

"There was abundant testimony on both sides of the question, and neither was entitled to have the jury instructed that there was a presumption favorable to it (citing cases). The doctrine of those cases is that a disputable presumption should not be mentioned in instructions to the jury when there is evidence tending to disprove it, and the rule is equally appropriate in controversies like this. The jury may be misled by such references."

In the instant case it cannot be doubted, we think, that there was evidence adduced by defendant tending to support the defense of duress or illegal consideration. [See Lacks v. Butler County Bank, 204 Mo. 455, l.c. 478; Hensinger v. Dyer, 147 Mo. 219, l.c. 226, 48 S.W. 912.] In the case last cited, it is said:

"Duress may be said to exist when one person is, by threats of a criminal prosecution of such a character as to deprive him of his own free will and agency, induced to make a contract or perform some act that he would not otherwise make or perform."

It is argued for respondent, in substance, that duress could not have been present at the time of the execution of these notes before a notary in the city of Washington on the afternoon of the day following the meeting at the home of plaintiff's parents, since no threats were made at the notary's office and if threats or prosecution were made on the prior evening defendants had ample opportunity to seek advice touching the matter. But if threats of this character are made they may well constitute duress, not only when made, but so long as they may continue to operate upon the mind of the party threatened, affecting his free will and agency.

It is true that if threats of prosecution were made they were threats to prosecute the minor defendant, Louis Nowak alone; but it has been frequently held that threats to criminally prosecute an infant may constitute duress as to his father or other near relative. [See 9 R.C.L., 726.]

It is contended by respondent, however, that appellant is in no position to complain of the giving of plaintiff's instruction No. 4 for the reason that appellants requested and obtained an instruction, defendants' instruction F, as follows:

"You are instructed that while the court has instructed you that the law presumes that the note sued on was given for a lawful purpose, it is not meant that the defense of threats and duress is withdrawn from your consideration, and notwithstanding such presumption, if you believe that defendants were caused to execute said note by threats and duress, as submitted in these instructions, you will find the issues for defendants."

It is said that a party cannot complain of an instruction in harmony with one requested by him, citing: Thorpe v. Railway Co.,89 Mo. 650; Farrell v. Fire Ins. Co., 66 Mo. App. 153, l.c. 165, 166; Bauer Grocery Co. v. Smith, 74 Mo. App. 419, l.c. 424; Lange v. Railroad, 208 Mo. 458, l.c. 475, 106 S.W. 660. The general doctrine thus invoked is sound enough, but in the instant case it appears, we think, from the very wording of defendants' instruction F that it was requested by defendant only after defendant had been forced to do so by the giving of plaintiff's instruction No. 4; and that therefore it could not be held that defendant invited the error. In Griffith v. Continental Casualty Co., supra, touching a matter of this character, it is said:

"The record does not show in express terms the order in which the instructions were asked and ruled upon, but it does not stand to reason that appellant would have asked the court to give IX if it had first asked and the court had given VII, or that it would have asked for both at the same time. The only rational conclusion to be drawn from the premises is that appellant asked VII after I had been given and XI refused, as it says. Under such circumstances it did not invite the error, but, yielding under protest to the theory of the trial court, did the best it could to minimize the effect of the erroneous instruction already given. [Bailey v. Kansas City, 189 Mo. 503, 513, 87 S.W. 1182.]"

Furthermore as to the giving of plaintiff's instruction No. 4, it should be noted that while we have held above that the infant defendant may be held liable on his note given in settlement of a tort, the consideration thereof being as fully open to inquiry as though the suit were on the original cause of action, nevertheless we regard it as clear that the above-mentioned presumption was not available to plaintiff as against the infant defendant. The infancy of this defendant stood admitted by plaintiff's reply. And since, prima facie, an infant is not liable on a note given during infancy, no presumption could attend the note in favor of plaintiff as against the infant defendant.

We are consequently forced to the conclusion that it was not only error but prejudicial error to give plaintiff's instruction No. 4. The judgment must consequently be reversed and the cause remanded. It is so ordered.

Becker and Daues, JJ., concur.