Coe v. Griggs

• Decision Date: 31 October 1882
• Parties: COE, Appellant, v. GRIGGS.
• Court: Missouri Supreme Court

76 Mo. 619

COE, Appellant,

v.GRIGGS.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Knox Circuit Court.--HON. JOHN C. ANDERSON, Judge.

AFFIRMED.

W. W. Cover for appellant.

Blair & Marchand for respondent.

HENRY, J.

This is an action for slander. The petition contains three counts. The first charges that defendant spoke of and concerning the plaintiff the following: ““You stole that money.” “He stole that money, and you know it, I know it, and we all know it.”

The second count charges that the language employed was: “You are a damned thieving scoundrel, you damned thief.”

The third charges that defendant said of plaintiff the following: “Damn you, you stole my rock, and you know it.” “You stole the rock, and you know it.”

The answer to the first count is a general denial. As to the second and third counts, defendant justified, and also pleaded, by way of mitigation of damages, that in the spring of 1875, at Knox county, plaintiff leased to one Miller a rock quarry on plaintiff's land for two years; that in November, 1875, defendant contracted with Miller for sixteen perches of rock to be taken from said quarry, and that in December, 1875, Miller took out of said quarry sixteen perches of rock and set them apart for defendant who paid Miller for them, and Miller notified plaintiff of the fact; that afterwards plaintiff hauled away said rocks without the consent or knowledge of defendant, and converted them to his own use; and that on the foregoing facts he spoke of plaintiff the words mentioned in plaintiff's second and third counts, believing at the time that plaintiff had stolen his rocks. The reply is a general denial. From a judgment in favor of defendant plaintiff has appealed.

1. SLANDER: plea in mitigation.

It is contended that the matter pleaded in mitigation is insufficient, because it is not alleged that plaintiff wrongfully or feloniously took the rock, or that he took it with the intent to convert it to his own use, or without defendant's consent. The force of this objection is not perceived. Defendant had already justified by alleging that plaintiff did unlawfully steal, take and carry away the rocks, and Starkie on Slander, page 477, cited by appellant's counsel in support of the proposition that in a plea of justification the same particularity is required as in an indictment for larceny, says: “Where the original charge is in itself specific, the defendant need not further particularize it in his plea. In an action on the case for calling plaintiff a thief and saying that he stole two sheep of J. S., the defendant pleaded that the plaintiff stole the same sheep, by reason of which, etc.; the plea was held good.” If in the matter pleaded in mitigation, defendant were required to repeat the slander complained of, it would be an absurd blending of mitigation and aggravation. The matter alleged in mitigation contains the ground on which defendant made the charge, and if it went to the full extent of alleging the plaintiff's guilt, it would be a plea of justification, with the particulars. It would defeat the very object of such pleading, authorized by the statute, to require the defendant to reiterate the slander. Atteberry v. Powell, 29 Mo. 429, and other cases cited by appellant's counsel, have no application to this case.

2. ______: justification: evidence.

He also complains of the rejection of testimony offered by him to prove that after the commencement of the suit defendant repeated the slander alleged in the first count. By his plea of justification defendant in the most formal, deliberate and solemn manner, admitted the speaking of the words, and justified. This was a continuous declaration from the filing of the plea to the close of the case, in the most solemn and public manner, that plaintiff had stolen defendant's rocks, and how it would have helped plaintiff's case to prove an oral repetition of the same, within the same period of time, we are at a loss to conjecture.

3. ______: practice.

He also objects that defendant's attorney was permitted to read to the jury plaintiff's petition. This is a most remarkable complaint, and we doubt if any court was ever before called upon to decide such a question. It was the plaintiff's own petition in the cause on trial. His own statement of the grievancies which defendant was...