Butts v. Long

• Decision Date: 27 May 1902
• Citation: 68 S.W. 754,94 Mo. App. 687
• Parties: BUTTS v. LONG et al.
• Court: Missouri Court of Appeals

68 S.W. 754

94 Mo. App. 687

BUTTS v. LONG et al.

Court of Appeals at St. Louis, Missouri.

May 27, 1902.

SLANDER OF TITLE — PLEADING — PETITION — SUFFICIENCY OF AVERMENTS — WORDS IN FOREIGN TONGUE — DAMAGES.

1. The petition in an action for slander of title declared that defendants did "represent and state in the presence and hearing of certain persons" that the plaintiff was not the owner of certain property described in the petition, etc. It is held, on review of a ruling on demurrer, that those allegations mean that the defendants spoke the language charged.

2. The words "represent" and "state" imply the utterance of the language mentioned in connection with those words, which are fully defined in the opinion of the court.

3. Slander may be perpetrated by two persons jointly.

4. In an action of slander, as also of slander of title, the offensive language must be distinctly averred. It is not sufficient to give merely the general purport of the language; and enough thereof must be proved as uttered to establish the slander.

5. Where words in a foreign tongue are alleged as slanderous, it is sufficient in a pleading to recite the English meaning, without quoting the foreign language.

6. In an action for slander of title, plaintiff is entitled, on a proper showing, to a judgment for at least nominal damages, even though no substantial damages appear.

7. Pleadings must be taken in their natural and ordinary meaning, and their allegations "liberally construed" (Rev. St. 1899, § 629); and, where a pleading is susceptible of two meanings, the one more favorable to the pleader must be adopted as fairly within the intention of the pleader.

8. Only the substantive facts of a cause of action need be stated. The evidence to support the allegations should not be set forth in a pleading.

Bland, P. J., dissenting.

(Syllabus by the Judge.)

Appeal from circuit court, Greene county; James T. Neville, Judge.

Action by J. M. Butts against J. A. Long and another. Judgment for defendants, and plaintiff appeals. Reversed.

Omitting caption, the petition is as follows: "Now comes the plaintiff and, after first having obtained leave of court to file this, his amended petition, states: That the defendants, J. A. Long and W. F. Long, are partners doing business under the firm name of Long Bros., and were so engaged in business at the times hereinafter mentioned, and that on the 13th day of October, A. D. 1900, plaintiff was the owner in fee simple of a certain parcel of land situated in the county of Greene and state of Missouri, to wit, commencing at a point sixty-two feet five inches south of the southeast corner of the lot now owned by George Murrell, deeded to him by W. H. Pipkin; thence south fifty-three feet seven inches; thence west one hundred and twenty-two feet; thence north thirty-three feet six inches; thence east one hundred and twenty-two feet to the place of beginning, — and that he was desirous of selling and disposing of the same, including the building thereon situated, together with a stock of drugs kept therein, and for that purpose entered into negotiations with one J. T. Jones, who was desirous of purchasing the same, and agreed with said Jones on a contract for the sale of said property above mentioned, at the price and sum of twelve hundred (1,200) dollars. That before the passing of the deed, or the payment of the consideration therefor, the defendants, well knowing the facts above stated, and maliciously contriving to injure and damage the plaintiff and prevent him from making the sale as aforesaid, did, maliciously and falsely, and without any probable cause, represent and state in the presence and hearing of certain persons, including the said J. T. Jones, that the plaintiff was not the owner of the north sixteen feet of said property above described, and that he had no right or authority to sell or dispose of the same, and that, if said Jones bought said property from said plaintiff, that he (Jones) would have litigation on account of the same; that they, the defendants, as partners, owned the north sixteen feet above mentioned. And the plaintiff states that, by reason of said false and malicious statements made by the defendants as partners aforesaid, he was prevented from making sale of said property to the said Jones for the said sum of twelve hundred (1,200) dollars, but that he was compelled and did afterwards sell to the said Jones said property for the sum of nine hundred (900) dollars; that by reason of said claim of title by defendants as partners in the manner above set out, in thus preventing the plaintiff from making said sale of said property to the said Jones in the manner first aforesaid, the plaintiff has been damaged in the sum of three hundred (300) dollars, for which sum he demands judgment and cost of suit." To the petition defendants filed the following demurrer: "Come now the defendants herein, and by leave of court file this their demurrer to plaintiff's amended petition filed in this cause, for the reason that said petition fails to state facts sufficient to constitute a cause of action against these defendants in the above-entitled cause." The court sustained the demurrer. Plaintiff declined to amend his petition, whereupon the court rendered judgment for defendants on the demurrer. Plaintiff filed a motion for new trial, which was overruled, and he appealed.

C. W. Hamlin, for appellant. A. S. Cowdon, for respondents.

BARCLAY, J. (after stating the facts).

The action is for slander of title. At pages 204, 205, Newell, in his work on Slander and Libel, says: "Three things are necessary to maintain the action for slander of property or of title: (1) The words must be false; (2) they must be maliciously published; (3) they must result in pecuniary loss or injury to the plaintiff." The words which convey the poison of slander are the gist of the action, and must be alleged, whether in the simplest form of slander or of title. Townsh. Sland. & Lib. p. 638.

So far this opinion has been prepared by our learned colleague, the presiding judge. We proceed to consider the applications of the rules of law so well stated.

The petition under review purports to recite the language used by defendants which forms the groundwork of this action. The recital, it is true, is not marked by quotation marks. That form is immaterial, so we think. The charge is that defendants "did, maliciously and falsely, and without any probable cause, represent and state in the presence and hearing of certain persons, including the said J. T. Jones, that the plaintiff was not the owner of the north sixteen feet of said property above described, and that he had no right or authority to sell or dispose of the same; that, if said Jones bought said property from said plaintiff, that he (Jones) would have litigation on account of the same; that they, the defendants, as partners, owned the north sixteen feet above mentioned." The foregoing plainly charges that the defendants did represent and state the objectionable matter in the presence and hearing of certain persons, including the said J. T. Jones. We are not concerned at the present time with the question of the probability or improbability of the narration by the pleader in the passage quoted, except to hold that the recital does not involve an impossibility. It appears to us that the petition may fairly be construed to mean that the defendants spoke the language charged in the presence and hearing of third persons. Whether each defendant made those statements simultaneously or about the same time does not appear, nor need it appear. Slander may be committed by two persons jointly. State v. Marlier (K. C.) 46 Mo. App. 233. Plaintiff is not required to state the evidence by which he expects to prove his allegations. Indeed, it would be improper for him to do so. Rev. St. 1899, § 615. A fair interpretation of the words "represent" and "state," aforesaid, imply that the language complained of was actually used by the defendants. Some of the established meanings of the word "represent" are "to describe or portray in words"; to "declare," "set forth" (Cent. Dict. 1897); "to exhibit to another mind in language" (Webst. Int. Dict. 1894). The verb "state" is defined to mean (among other things) "to aver or allege"; to "represent fully in words"; to "narrate"; to "recite." Cent. Dict. 1897; Webst. Int. Dict. 1894. There is nothing in the language complained of to indicate that it does not portray the words used by the defendants.

The rule of law is well settled, at least in Missouri, that, in an action of slander, the offensive language must be distinctly averred as uttered. Watson v. Musick, 2 Mo. 29. The rule is not different in actions for slander of title. It is, moreover, a general rule that if it appears from the allegations that the pleader is not reciting the language used, but only its general purport and effect, his pleading is bad on that account. Gutsole v. Mathers, 1 Mees. & W. 496; Harris v. Warre, 4 C. P. Div. 125. Yet it has been held by the supreme court in at least two instances in this state that, where words in a foreign tongue are alleged as slanderous, it is sufficient to recite the English meaning of the language, and that the exact words in the foreign tongue need not be mentioned. Stieber v. Wensel, 19 Mo. 513; Elfrank v. Seiler, 54 Mo. 134. In the former of these cases the point was taken for granted. In the latter, such pleading was held good under the Code, as against an objection at the trial that the petition did not state a cause of action. The last-cited ruling is controlling authority to this court under Const. Amend. 1884, § 6. In Harris v. Woody, 9 Mo. 113, a declaration which alleged that the defendant said that the plaintiff had committed perjury was assumed (in 1845) to be a sufficient pleading of a slander, before the enactment of the reformed Code of Procedure. In the case at bar it may be that the exact words...