Brown v. Adams, WD
| Decision Date | 09 September 1986 |
| Docket Number | No. WD,WD |
| Parties | Clifford BROWN, Appellant, v. Clinton ADAMS, Jr., Respondent. 36133. |
| Court | Missouri Court of Appeals |
Lynne J. Bratcher, Linda F. Dycus, Kansas City, for appellant.
Clinton Adams, Jr., Kansas City, for respondent.
Before CLARK, C.J., and DIXON and KENNEDY, JJ.
The present appeal is by plaintiff Clifford Brown from a judgment N.O.V. for defendant, granted by the trial court upon defendant's motion after plaintiff had gained a $25,000 jury verdict against the defendant for defendant's alleged malpractice. Plaintiff's claim was that defendant, an attorney, had negligently failed to file an action for slander against his former employer, S.S. Kresge Company, within the limitation period, as a result of which negligence plaintiff had suffered damage.
Respondent has filed no brief in this court.
The ground upon which the trial court granted the judgment N.O.V. for defendant was that the plaintiff's petition had not stated a cause of action against the defendant. Its deficiency was that he had not stated within the petition for malpractice facts showing that it had a cause of action for slander against S.S. Kresge Company.
In order to state a cause of action for slander, it is necessary to allege in haec verba the exact words which are alleged to be defamatory. Fritschle v. Kettle River Co., 346 Mo. 196, 139 S.W.2d 948, 949 (1940); Remmers v. Remmers, 217 Mo. 541, 117 S.W. 1117, 1123 (1909); Bremson v. Kinder-Care Learning Center, Inc., 651 S.W.2d 159 (Mo.App.1983).
Also, in order to state a cause of action against an attorney for malpractice for failure to file a lawsuit within the statute of limitations period, the petition must allege that the plaintiff could have recovered a judgment in the action if it had been diligently prosecuted. Johnson v. Haskins, 119 S.W.2d 235 (Mo.1938); Fischer v. Vonck, 614 S.W.2d 26 (Mo.App.1981); 7A C.J.S. Attorney and Client § 269 (1980).
Whether the petition for malpractice must allege the cause of action for slander with the same precision and specificity as would have been required in the petition for slander itself is a question we do not need to deal with at this time. The trial court and the parties assumed that the malpractice petition against the attorney was required to allege the precise words of defamation, and that plaintiff's petition which alleged simply that plaintiff "was slandered by S.S. Kresge Company during an investigation by the United States Civil Service Commission" was insufficient. Appellant did not in the trial court and does not here dispute the insufficiency of his petition upon which the case was tried.
Appellant says, however, that there was proof of the exact words of Kresge employees which were allegedly slanderous, and that the issue was tried by the express consent of the parties. He follows by saying in effect that the petition's shortcoming was waived by defendant and under Rule 55.33(b) the petition should be treated as having been amended to allege the precise defamatory words. 1 We hold, however, that the defendant did not waive the petition's insufficiency and did not consent to the proof of the exact words.
Plaintiff points us to a certain exchange among the court and counsel for the parties wherein he says counsel for the defendant expressly consented to the trial of the issue of the precise words of defamation. We do not think the words had that effect. In fact, defendant's counsel said (in the exchange indicated by plaintiff):
[W]e have filed an answer to plaintiff's amended petition and are prepared to go forward with that should the Court so order. The problem, of course, that we've discussed at length is plaintiff's desire to endeavor to prove up some alleged slander based upon some documents which ... will not be shown to have any particular probative value in terms of even the words used, slanderous, either per se or per quod, which I really, having researched them, don't see the slander necessarily, and fail to properly apprise us of what we have to meet.... We don't know when they are gathered, we don't know who the reporter was, we don't know who the statements were allegedly made by, and by this document or by that offer, we would submit plaintiff is going to attempt to prove up, which she must in a malpractice action, the underlying claim of slander, and establish that she might have been able to recover.... In any event it puts defendant at a distinct disadvantage in trying to meet it. We don't know what they are going to be.... I would submit that what plaintiff did is copy verbatim from one of those same documents that we are referring to and still does not specify wherein lies the slander. That serves no useful purpose, whatsoever, in apprising the defendant as to what he has to meet. And it is not, I don't believe, defendant's burden necessarily to invite or beg plaintiff to amend her petition to state her case. It's incumbent upon a petitioner in a trial of a lawsuit to have a case properly stated. Certainly we all know and understand should the case go forward it is entirely possible, though I would tend to doubt that plaintiff might adduce evidence which would cause her petition to be or qualify for amendment to perform thereto and thereby state a claim which, in effect, gives plaintiff two shots at this lawsuit, which I don't think is what the law intended in that respect. (Emphasis ours.)
Neither in the foregoing exchange nor elsewhere in the transcript of the trial testimony do we find any consent by the defendant to proof of specific words, not quoted in the petition, which were alleged to be slanderous. Defendant before trial by motion to dismiss, and throughout the trial by objections to testimony and by motion for directed verdict, continued to stress the deficiency of the petition in failing to specify the alleged words of slander.
We hold that there was no express or implied consent to the trial of the issue of whether particular statements of employees of S.S. Kresge Company were made, and if so whether they were defamatory. Rule 55.33(b) is not applicable to this case.
Laying aside the question of the sufficiency of the petition, the evidence itself in the trial of the case fails to show any cause of action which the plaintiff ever had against S.S. Kresge Company. The evidence consisted of reports of background investigation of plaintiff made by the U.S. Civil Service Commission, in connection with an application by plaintiff for employment by the Internal Revenue Service. There are in the documents several statements which attribute dishonest actions to plaintiff while he was in the employ of S.S. Kresge Company. In several instances the person making the statement is not identified and one cannot tell whether the person making the statement was in any way connected with the Kresge Company. In some instances, it is impossible to differentiate between conclusions of the investigator and statements of his informant. Plaintiff himself was quite vague as to which statements in the reports had defamed him. His attorney said, in a bench conference about the admissibility of the investigation reports:
They say he's apparently dishonest, they talk about, he lacks character development, his attitude about his job is not good, he took items without paying for it, you know, they're talking about small merchandise there, not money. They said there was no official document that he took the money, but he could have lived beyond his means. They made all sorts of slanderous statements about that poor man that would be actionable.
Even if the petition had stated a cause of action, there would have been no submissible case upon the evidence. If there is no submissible case, trial error is immaterial. The judgment of the trial court would be affirmed upon that most basic of propositions, that plaintiff made no submissible case against defendant. Reed v. Sale Memorial Hospital and Clinic, 698 S.W.2d 931, 933 (Mo.App.1985).
Judgment affirmed.
DIXON, J., concurs in result and files separate concurring opinion.
I do not agree with all of the statements in the majority opinion and write to state the bases for my agreement with the result and my disagreement with the majority's statements.
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