Casey v. Aubuchon

• Decision Date: 08 March 1887
• Citation: 25 Mo.App. 91
• Parties: GEORGE F. CASEY, Respondent, v. STEPHEN AUBUCHON, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 91

GEORGE F. CASEY, Respondent, v. STEPHEN AUBUCHON, Appellant.

Court of Appeals of Missouri, St. Louis.

March 8, 1887

APPEAL from the Jefferson County Circuit Court, JOHN L. THOMAS Judge.

Affirmed.

WILLIAMS & GREEN, for the appellant: An instruction which authorizes the jury to find for the plaintiff, in an action of slander, upon evidence of words spoken which are not actionable, is erroneous. Townshend, Slander, (3 Ed.) sect 157; Franz v. Hilderbrand, 45 Mo. 121.

DINNING & BYRNES, for the respondent: The petition embraces one cause of action. Lewis v. McDaniel, 82 Mo. 577; Burch v. Benton, 26 Mo. 161; Pennington v. Meeks, 46 Mo. 217; Mix v. McCoy, 22 Mo.App. 488. The instructions given by the court properly declared the law applicable to this case. Hall v Adkins, 59 Mo. 141; Price v. Whitely, 50 Mo. 439; Hudson v. Garner, 22 Mo. 423; Weaver v. Hendrick, 30 Mo. 502; Buckley v. Knapp, 48 Mo. 152.

OPINION

ROMBAUER J.

This is an action of slander which resulted in a judgment for the plaintiff for five hundred dollars.

The petition, omitting caption and signature, is as follows:

" The plaintiff states that the defendant on the _____ day of August, 1885, in the city of De Soto, in the county of Jefferson, and state of Missouri, in the presence and hearing of a great number of persons, spoke of and concerning the plaintiff the following false and slanderous words, to-wit: ‘ Casey stole five dollars out of the drawer,’ ‘ Casey stole five dollars out of my drawer,’ ‘ Casey has done me a dirty trick; I left him in my store, and when I came back the drawer was short five dollars,’ meaning this plaintiff, and being so understood by those who heard him, and charging him with the crime of larceny, whereby this plaintiff has been damaged in the sum of ten thousand dollars, and for which he asks judgment."

The defendant's answer is a general denial.

On the trial there was evidence tending to show that the defendant did say of and concerning the plaintiff, " Casey stole five dollars out of my drawer," and also that he said, " Casey has done me a dirty trick; I left him in my store, and when I came back the drawer was short five dollars," but there was no evidence of the speaking of the words, " Casey stole five dollars out of the drawer." The court thereupon, of its own motion, instructed the jury as follows:

" If you believe and find from the evidence in this cause that the defendant, within two years prior to the nineteenth day of August, 1885, spoke of and concerning the plaintiff, in the presence and hearing of one or more persons, the following words: ‘ Casey stole five dollars out of the drawer,’ " Casey has done me a dirty trick; I left him in my store, and when I came back the drawer was short five dollars,' ‘ Casey stole five dollars out of my drawer,’ or that he spoke, in the presence of any one or more persons, of the plaintiff, enough of the exact words set out above to constitute the charge of the crime of larceny against the said plaintiff, then you will find the issues for the plaintiff and assess his damages at a sum not exceeding ten thousand dollars."

" If you believe from the evidence that the defendant spoke the slanderous words as charged in the petition, or enough of the exact words charged to constitute the crime of larceny against the plaintiff, then the law presumes they were spoken

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