Christal v. Craig

• Decision Date: 31 October 1883
• Citation: 80 Mo. 367
• Parties: CHRISTAL v. CRAIG, Appellant.
• Court: Missouri Supreme Court

80 Mo. 367

CHRISTAL

v.CRAIG, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

Dysart & Mitchell for appellant.

The petition is fatally defective in having no ad damnum clause. R. S. 1879, §§ 3511, 3512; Devean v. Skidmore, 19 Am. Law Reg. 784; Brownson v. Wallace, 4 Blatch. 465; Bumpass v. Webb, 3 Ala. 109. Plaintiff's third instruction was erroneous. Bliss on Plead., § 305; Dyer v. Morris, 4 Mo. 214; Curry v. Collins, 37 Mo. 324; Rammell v. Otis, 60 Mo. 365; Hall v. Adkins, 59 Mo. 144. Plaintiff's fourth instruction was also misleading and improper. Berry v. Dryden, 7 Mo. 324: Birch v. Benton, 26 Mo. 153.

Berry & Thompson for respondent.

There is no misjoinder of causes in the petition. It states but a single cause of action. Pennington v. Meeks, 46 Mo. 217; Palson v. See, 54 Mo. 291. If there was an improper joinder of several causes of action in the same count, the remedy was by motion to elect. Mulholland v. Rapp, 50 Mo. 42. A petition is not fatally defective because inartistically drawn. State v. Carroll, 63 Mo. 156. All slanderous words uttered in the same conversation are admissible in evidence. Pennington v. Meeks, 46 Mo. 217. The petition sufficiently alleges that plaintiff was damaged. Bowie v. Kansas City, 51 Mo. 454; Yeates v. Reed, 32 Am. Dec. 42.

PHILIPS, C.

This is an action for slander. The petition contains but one count, though it sets out several distinct causes of action. The first assignment of words spoken is: “You and your mob all swore to lies in the probate court at Macon in my suit against the estate. You and John, Lin and Martha all swore to a lie in that case.” The second averment is: “Your son Lin has no father. He never did have any. He don't belong to the Christal family. He is not Stewart Christal's child.” Third: “You tied horses on the railroad to get them killed, and you got the benefit of it, and you know you did.” Fourth: “You have been all over my place at night, and in my smokehouse pilfering; you have been in my smoke-house a dozen times after night.” Fifth: “You let your husband starve to death for want of something to eat.” Sixth: “You have took my pocket-book and money, and got it there in your bucket.” To all of which there was the general averment: “He, the defendant, thereby meaning to charge plaintiff with being guilty of the henious crimes of perjury, larceny and adultery.” There was no ad damnum clause to the petition, but the following prayer at the conclusion of the petition: “Wherefore plaintiff prays judgment against the defendant for the sum of $5,000, for costs,” etc. The answer was a general denial.

At the trial the defendant objected to the introduction of any evidence, for the reasons that the petition did not state facts sufficient to constitute a cause of action, because it mingled in one and the same count several distinct causes of action, and because no damages are alleged in the petition. The court overruled the objection. Defendant then asked the court to exclude all testimony on the charge of perjury, for tying horses on the railroad track, and for starving plaintiff's husband, for the reason that the charges are not so pleaded as to constitute any cause of action. This request the court likewise refused. The testimony and instructions in the case will, so far as may be needful, be noticed in the proper connection in the course of this opinion. The jury returned a verdict for plaintiff in the sum of $500, and judgment was rendered accordingly. From this judgment the defendant has appealed to this court.

I. The petition in this case is bad pleading. It is true, as contended for by respondent, that the same slander may be stated many times, and in different forms in the same count. But I apprehend it will be found on examination of the cases, that the words or utterances thus grouped together in one count, after all, constitute but one substantive offense. The case of Pennington v. Meeks, 46 Mo. 217, referred to by counsel, related solely to one offense, the alleged stealing of a hog. So in the case of Birch v. Benton, 26 Mo. 153, there was really but one actionable speaking alleged, though in different phraseology. The only actionable words alleged were those charging the defendant with adultery. But this petition contains averments in the same count imputing the crimes of perjury, larceny and adultery. Each of these is a distinct offense for which action might be laid separately. The matter of defense to each might be distinct, and I am of opinion that under the code, while they might all be united in the same petition, they should be separately stated with the relief sought for each cause of action. R. S. 1879, § 3512. Bliss on Plead., § 125; Pike v. Van Wormer, 5 How. Pr. 171. But is the appellant in a condition to take advantage of the alleged defect? His remedy was clearly to have moved the court for a rule on plaintiff to elect on which cause of action he would go to trial, and to strike out the others. Mooney v. Kennett, 19 Mo. 551; Otis v. Mechanics' Bank, 35 Mo. 128. Having failed to make such motion, the defect of misjoinder is waived. But does the defendant waive anything more? Suppose the fact be in this case that among the causes thus united in the same count, one or more be bad for failure of a sufficient statement, and there is a general verdict on all the causes, would the verdict and judgment be upheld? The rule is well settled that where the petition contains several causes of action stated in separate counts, if one of the counts be bad for insufficiency in statement, a general verdict for plaintiff on all the counts will not be sustained. Brownell v. P. R. R. Co., 47 Mo. 243, and authorities cited. On principle it must obtain that where the several causes of action are united in one count, and the case is tried on all, and a simple verdict and assessment of damages in favor of the plaintiff, if one or more of the causes of action assigned be bad, so as not to support the verdict, the verdict must be bad as to all. How is it possible for the court to tell whether the jury took one or all the alleged slanderous words into their estimation? How much proof of the imperfect cause, and how much on the good, did the jury consider? Was it the fact proved touching the bad count that influenced the verdict, and if so, to what extent? Would the jury have given any damages of moment on account of the words properly alleged in the petition, without proof of the others? These are difficulties and complications incident to the violation of the rules of good pleading, which suggested themselves to the mind of Judge Scott in Mooney v. Kennett, 19 Mo. 553. He clearly indicated the inclination of his mind to the construction we here suggest.

The court below gave, on behalf of plaintiff the following instruction:

3. “If the jury believe from the evidence that the defendant, at the time and place and manner charged, spoke of and concerning plaintiff the following words: ‘Your son Lin has no father. He never did have any. He don't belong to the Christal family. He is not Stewart Christal's child,’ thereby intending to charge plaintiff with adultery. Or, ‘You have been all over my place after night, and in my smoke-house pilfering. You have been in my smokehouse a dozen times after night.’ Or, ‘You have took my pocket book and money, and have got it there in your bucket,’ intending at the time to charge plaintiff with the crime of larceny, then the jury should find for the plaintiff and assess her damages at any sum not exceeding $5,000.”

The first of the charges, it is observed, is that of adultery. Are the facts stated sufficient to constitute the offense? Section 2120, Revised Statutes, makes it actionable to publish falsely that any person has been guilty of adultery. The term “adultery” is employed in this statute in its common law sense or its ordinary acceptation. For the plaintiff, a woman, to be guilty of this offense she must have been married at the time. Abbott's Law Dic., title ““Adultery;” 1 Bouvier's Dic., title “Adultery.” It is not averred in the petition that the plaintiff was a married woman at the time the child Lin was begotten, or at any other time, nor is there enough averred to legitimately authorize the inference. Unquestionably at common law there should have been a colloquium averring her coverture, or the birth of the child in lawful wedlock. Has the statute in any wise obviated or modified the rule? Section 3552, Revised Statutes, declares that: “In the action for slander it shall not be necessary to state in the petition any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff.” This provision, however, dispenses with the employment of the colloquium only so far as it shows “that the defamatory words applied to the plaintiff,” and goes no further. “All the averments necessary in common law pleading to show the meaning of the words must still be made.” Bliss Plead., § 305. The change made by the statute in the rule of pleading in this respect, is not to require a statement of the extrinsic facts showing the application of the words to the plaintiff. But the extrinsic facts, when not embraced in the imputed words to show their meaning and the character of the person to whom applied, must still be stated as at common law. Fry v. Bennett, 5 Sandf. 54; Pike v. Van Wormer, 5 How. Pr., supra; Curry v. Collins, 37 Mo. 328, 329. But it is said the innuendo supplies the defect, in that it says: “Meaning he was not a child of plaintiff's husband.” The office of the innuendo is simply to apply the words. It is never a substitute for an averment. It is not the statement of a fact, but an inference. Being merely explanatory in its function, the only...