Clements v. Maloney

• Decision Date: 28 February 1874
• Parties: JOHN CLEMENTS, Respondent, v. JOSEPH B. MALONEY, Appellant.
• Court: Missouri Supreme Court

55 Mo. 352

JOHN CLEMENTS, Respondent,

v.JOSEPH B. MALONEY, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Sullivan Circuit Court.

A. W. Mullins, for Appellant.

I. In actions of slander, the slanderous words must be proved as charged; proof of equivalent words is not sufficient; so many of the identical words charged as are necessary to constitute in themselves the slanderous accusation, must be proved as laid. (Birch vs. Benton, 26 Mo., 153; Creelman vs. Marks, 7 Blackf., 281; Fox vs. Vanderbeck, 5 Cow., 515; 8 Phil., Ev., 551 & notes; 1 Hill. Torts, 397.)

II. The instruction as to the “circumstances” of the plaintiff was clearly erroneous. There was no evidence on the point. (Wear vs. Hickman, 4 Mo., 106; Vaulx vs. Campbell, 8 Mo., 224; Rose vs. Spies, 44 Mo., 20; Id., 179; Frantz vs. Hilterbrand, 45 Mo., 121.)

III. There was a fatal variance between the contract and the allegations in the petition. (1 Hill. Torts, 396-398, and authorities.)

G. W. Easley and G. D. Burgess, for Respondent.

I. There was no variance between the contract read in evidence, the allegations in the petition, and the proof offered. (§ 1, Art. 3, Wagn Stat.; Reed vs. Larkin, 19 Mo., 192; Murphy vs. Wilson, 44 Mo. 313; Metz vs. Eddy, 21 Mo., 13; Randolph vs. Keiler, 21 Mo., 557.)

II. The instructions taken together presented the law of the case fairly to the jury, and they must be taken as a whole. (Sears vs. Wall, 49 Mo., 359.)

III. The rule as to the measure of damages as presented in the third instruction given for plaintiff. (Buckly vs. Knapp, 48 Mo., 163; Bump vs. Betts, 23 Wend., 85; McNamara vs. King, 2 Gilm., [Ill.] 432; 1st Hill. Torts, 405; Bennett vs. Hyde, 6 Conn., 24; Beehler vs. Steever, 2 Whart., 314; Larned vs. Buffington, 3 Mass., 546.)

VORIES, Judge, delivered the opinion of the court.

This was an action for slanderous words spoken.

The petition charged, that on the 1st day of November, 1870, plaintiff had in his possession a contract which had been previously entered into in writing between the defendant of the one part, and the directors of School District No. 7, in Township 61, of Range 21, Sullivan County, Missouri, on the other part, in regard to the building by defendant of a school house for said school district; and that said defendant on said 1st day of November, 1870, at Sullivan county aforesaid, in speaking of said contract in the presence and hearing of one Sherwood and others, spoke the following false and slanderous words of and concerning plaintiff, that is to say: “John Clements (meaning plaintiff) forged the words, ‘that he (plaintiff) should pay him (defendant) four hundred dollars on or before the 15th day of September, 1870, or as soon thereafter as the same could be collected off of said district, and that he could prove it by twenty-five men.” That he, John Clements (meaning plaintiff), forged the words, “That the work was to be done in a workmanlike manner in the contract;” thereby intending and was so understood by those present, to charge the plaintiff with the crime of forgery, by which plaintiff claims that he has been damaged in the sum of one thousand dollars, for which judgment is prayed. The defendant filed two answers to this petition, but the one upon which the trial seems to have been had, simply denies that plaintiff, on the 1st day of November, 1870, or at any time, had in his possession a contract which had been entered into between the defendant and the directors of School District 7, in Township 61, of Range 21, in Sullivan County, in regard to the building by the defendant of a school house for said district, and denies, that on said day or any day prior or subsequent thereto, he charged the plaintiff with the crime of forgery as set forth in the petition. The evidence introduced by the parties on the trial of the cause tended to prove the issues on their respective parts.

Among other proofs introduced by plaintiff, was what purported to be the written agreement referred to in the plaintiff's petition, and together with said instrument, plaintiff offered to prove by oral testimony, that the agremeent offered in evidence was the same instrument to which defendant referred in making the charges against plaintiff, which are set forth in the petition, and which had been referred to by the witnesses in the cause. The defendant objected to the reading of the instrument in evidence, and also to the oral evidence identifying the instrument as the one referred to by defendant, on the ground that there was a variance between the instrument offered in evidence, and the one referred to by plaintiff in this, that the instrument referred to in the petition was described as executed by the defendant on the one part, and the School directors of School District No. 7 on the other part, while the agreement offered in evidence purported to have been executed on the part of the school directors of school district No. 8, and was only signed by the plaintiff as director of said district. The court overruled the objections to this evidence, and the defendant excepted. At the close of the evidence the court, at the request of the plaintiff, instructed the jury as follows:

1st. “That if the jury believe from the evidence, that defendant and plaintiff did on or about the first day of April, 1870, enter into a contract in regard to the building of a school house and placed the same in the hands of S. A. Maloney to hold for them, and that defendant afterwards, to-wit: on or about the first day of November, 1870, in the presence and hearing of one H. A. Atkins, in speaking of plaintiff and said contract, spoke of and concerning the plaintiff the following words, to-wit: That John Clements forged the words, “that he should pay him four hundred dollars on or before the 15th day of September, 1870, or as soon thereafter as the same could be collected off of said district;' or that he substantially spoke of and concerning plaintiff said words, and that they were false, they are bound to find for plaintiff.”

2nd. “If the jury find for the plaintiff, they will assess his damages at any amount to which they may believe from the evidence that he is entitled, not exceeding the sum of one thousand dollars.”

3rd. “The jury in making their verdict may take into consideration all the facts and circumstances as detailed by the witnesses, and in estimating the damages which they may think plaintiff has sustained, may take into consideration his circumstances and the injury to his feelings, and may add thereto as compensation for the injury smart money.”

4th. “If the jury believe from the evidence that defendant spoke of and concerning the plaintiff the words charged in the complaint, or substantially the same words and that they were false, then the law presumes that they were spoken wilfully and maliciously.”

The defendant objected to these instructions and his objections being overruled, he excepted. The court then at the request of the defendant instructed the jury as follows:

1st. “That before the jury can find a verdict for plaintiff they must be satisfied from the evidence that the defendant spoke of and concerning the plaintiff the exact words mentioned in the petition, or enough of said exact words to make a material alteration of said contract, and that he charged plaintiff with making such alteration after the paper was executed; and the jury must exclude from their consideration any and all other words that defendant may have spoken with reference to the plaintiff, not specified in the petition.”

2nd. “It devolves upon the plaintiff to make out his case to the satisfaction of the jury, and unless the jury in this case can find that plaintiff has made out a case as specified in the instructions by a preponderance in his favor of the testimony adduced, then the jury ought to find for the defendant.”

There were some other instructions given and refused, but they are not necessary to any real point raised in this court, and will not be further noticed.

The jury found a verdict in favor of the plaintiff for two hundred dollars. The defendant filed his several motions for a new trial and in arrest of the judgment, which being overruled by the court and a final judgment rendered on the verdict, the defendant again excepted and appealed to this court.

The first objection made by the defendant to the action of the Circuit Court, is as to the legality of the first and second instructions given to the jury by the courtat the request of the plaintiff. The jury are told by said instructions, that if they find from the evidence that the defendant spoke the slanderous words set forth in the petition, of and concerning the plaintiff, or that he substantially spoke of and concerning plaintiff said words, and that they were false, they must find for the plaintiff. It is insisted by the defendant that these instructions are erroneous; that...