Conran v. Fenn
| Decision Date | 30 September 1911 |
| Citation | 140 S.W. 82,159 Mo.App. 664 |
| Parties | JAMES V. CONRAN, Respondent, v. BERTRAND F. FENN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Genevieve Circuit Court.--Hon. Charles A. Killian Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
H. A. & C. R. Hamilton and Bert F. Fenn for appellant.
(1) The gist of an action for slander, is the speaking of the alleged slanderous words. If the evidence fails to establish that defendant spoke the exact words alleged to have been spoken or fails to prove enough of the same identical words to make out the slander charged, the court should direct a verdict for defendant. In plaintiff's affidavit for attachment defendant is charged with the commission of a misdemeanor in speaking of plaintiff, in New Madrid county, the words, "He forged that deed." There was a complete failure of proof on this issue and the court should have directed a verdict for defendant on the first ground of attachment. Watson v. Musick, 2 Mo. 29; Cooper v. Marlow, 3 Mo. 188; Berry v. Dryden, 7 Mo. 324; Street v. Bushnell, 24 Mo. 228; Birch v. Benton, 26 Mo. 153; Attebery v. Powell, 29 Mo. 429; Coghill v. Chandler, 33 Mo. 115; Bundy v. Hart, 46 Mo. 460; Clements v. Maloney, 55 Mo. 352; Coe v. Griggs, 76 Mo. 619; Christal v. Craig, 80 Mo. 367; Lewis v. McDaniel, 82 Mo. 577; Noeninger v. Vogt, 88 Mo. 589; Nicholson v. Rogers, 129 Mo. 136; Mix v. McCoy, 22 Mo.App. 488; Smith v. Bauer, 60 Mo.App. 212; Butts v. Long, 94 Mo.App. 687; Krup v. Corley, 95 Mo.App. 640; State v. Fenn, 112 Mo.App. 531; Newell on Sl. and Lib. (2 Ed.), pp. 804-805; Townsend on Sl. and Lib. (4 Ed.), sec. 365; Starkie on Sl. and Lib. (Wendell's Ed.), vol. II, p. 12. (2) The use of slanderous words without referring to any particular individual, creates no cause of action against defendant, and it must be both alleged and proved that the slander was spoken of and concerning plaintiff, and was so understood by those who heard the same. Caruth v. Richeson, 96 Mo. 186. (3) A communication made bona fide upon any subject in which the party communicating has a duty, is privileged, if made to a person having a corresponding interest, although it contains defamatory matter which without this privilege would be actionable. 18 Am. and Eng. Ency. Law, p. 1029; Townsend, Slander and Libel (4 Ed.), 296; Hancock v. Blackwell, 139 Mo. 440. (4) An attachment founded on the twelfth subdivision of section 2294, Revised Statutes, 1909, cannot be sustained unless the crime alleged occasions the damage set forth in the petition. The sixth count of the original petition, being the second count of the amended petition, alleges that defendant and others formed a conspiracy to injure him. Conspiracy alone cannot be made the subject of a civil action and said count, failing to state a cause of action will not support on attachment. Bigelow on Torts, p. 104; Cooley on Torts (2 Ed.), p. 143; 6 Am. and Eng. Ency. Law (2 Ed.), 873; Hunt v. Simonds, 19 Mo. 583; Boss v. Mineral Land Co., 162 Mo. 317; Remmers v. Remmers, 217 Mo. 541. (5) (a) The second count of the amended petition is not sufficient as an action for slander, because the speaking of the slanderous words is the gist of such an action and the words used must be set out in the petition. Birch v. Benton, 26 Mo. 153; Coe v. Griggs, 76 Mo. 619; Christal v. Craig, 82 Mo. 367; Noeninger v. Vogt, 88 Mo. 589; Nicholson v. Rogers, 129 Mo. 136; Smith v. Bauer, 60 Mo.App. 212; Butts v. Long, 94 Mo.App. 687. (b) The constitutive elements of an action for malicious prosecutions are a proceeding instituted without probable cause, with malice and a termination of the prosecution resulting in the discharge or acquittal of defendant. The second count of the amended petition does not allege a prosecution without probable cause, nor does it allege a termination of the proceeding, and it cannot be sustained as an action for malicious prosecution. Newell on Malicious Prosecution, p. 327; Cooley on Torts (2d Ed.), p. 206; Webb's Pollock on Torts, p. 392; Sharpe v. Johnson, 76 Mo. 660; Stubbs v. Mulholland, 168 Mo. 47; Moody v. Deutsch, 85 Mo. 237; Kelley v. Osborn, 86 Mo.App. 239. (c) The second count of the amended petition cannot be sustained as an action for false arrest or false imprisonment. Taafe v. Kyne, 9 Mo.App. 15; Monson v. Rouse, 86 Mo.App. 97; McCaskey v. Garrett, 91 Mo.App. 354; Wehmeyer v. Mulvihill, 130 S.W. 681; Boeger v. Langenberg, 97 Mo. 390; Finley v. St. L. Ref., Etc., Co., 99 Mo. 559. (d) While said second count alleges that defendant conspired to defraud plaintiff of his property, yet there is no allegation that plaintiff was defrauded of any property, or that any fraud was committed. This count is therefore insufficient as an action for false representation. Lewis v. Brookdale Land Co., 124 Mo. 672; Bispham on Equity (6 Ed.), sec. 217; 14 Am. and Eng. Ency. Law, p. 137, 139; Morrison v. Lods, 39 Cal. 381; Meyer v. Yesser, 32 Ind. 294. (6) There can be no conspiracy to do a lawful act. Mrs. M. H. Powell had a right to remarry at any time, and, even if the other contracting party had a license issued under an assumed name, the contract was valid and no one can attack the same, and certainly a stranger to the contract cannot question the marriage. Hunt v. Simonds, 19 Mo. 583; Alexander v. Relfe, 9 Mo.App. 133; 21 Am. and Eng. Ency. Law, p. 312. (7) The bona fide sale and transfer of land by a debtor is not a ground of attachment, and it devolves on the person attacking the sale to prove that the transfer was fraudulently made to hinder, delay and defraud creditors. 14 Am. and Eng. Ency. Law, p. 265; Hickey v. Ryan, 15 Mo. 63; Gates v. Labeaume, 19 Mo. 17; Chandler v. Fleeman, 50 Mo. 239; Dougherty v. Cooper, 77 Mo. 528; Furth Grocery Co. v. May, 78 Mo.App. 323.
Stanton, Pratt & Whitledge for respondent.
This is a suit for damages said to have accrued to plaintiff on account of an alleged slander spoken of and concerning him by defendant. The process of attachment is invoked in aid of the principal case and as the finding and judgment on both the attachment and suit on the merits were for plaintiff, the appeal by defendant under our statute (Sec. 2335, R. S. 1909), presents both matters for consideration.
We will first dispose of the questions arising on the trial of the attachment, and afterwards consider the appeal with respect to the merits, or the main case.
By his affidavit for attachment, plaintiff avers four separate grounds therefor. The two first of these predicate upon the twelfth subdivision of section 2294, Revised Statutes 1909 pertaining to attachments, and state that the damages for which the action is brought accrued on account of injuries arising from the commission of a misdemeanor by defendant, while the other two grounds predicate upon the seventh and eighth subdivision of the same statute. One of them goes to the effect, substantially, that defendant has fraudulently conveyed his property so as to hinder or delay his creditors, and the other that defendant has fraudulently concealed, removed or disposed of his property and effects so as to hinder or delay his creditors. All of these matters were put in issue by defendant's plea in abatement, and a trial thereof was had before the jury. As before stated the first ground for the attachment predicates upon the twelfth subdivision of the statute in that it is alleged that the injury, for which the damages sued for are sought, arose from the commission by defendant of a misdemeanor. The misdemeanor said to have been committed by defendant and from which the damages are said to flow is alleged to be that defendant Fenn, maliciously intending and contriving to scandalize and to bring in disrepute the plaintiff, did unlawfully, falsely and maliciously charge plaintiff, in the presence of one J. F. Gordon, with the crime of forgery. The misdemeanor charged, in short, is criminal slander spoken of and concerning plaintiff by defendant and the slanderous words set forth in the affidavit as those imputing to plaintiff the act and offense of forgery are that "he, Conran (meaning J. V. Conran, plaintiff) forged that deed," meaning and referring to a quitclaim deed from M. H. Powell to J. V. Conran, dated June 8, 1903, acknowledged June 10, 1903, before Lule R. Colvin, a notary public in and for the City of St. Louis. Section 4817, Revised Statutes 1909 denounces as a misdemeanor the false and malicious speaking of words by one person of another which impute a felony, the commission of which would subject such person to disfranchisement and other degrading penalties. There can be no doubt that the charge set forth in the affidavit as having been spoken by defendant of and concerning plaintiff, if substantiated on the trial, would infringe the provision of the statute cited and render the defendant liable to answer for the commission of a misdemeanor. But, in order to sustain the attachment on the ground stated, it devolves upon plaintiff to prove the charge laid; that is to say, it devolves upon plaintiff to prove the slanderous words set forth or enough of them to constitute the charge laid. The slander proved must substantially correspond with that charged. This rule, it has been repeatedly held by the courts, means that if the words charged to have been spoken are proved, but with the omission or addition of others not varying the same, then the variance is immaterial. It is not enough, however, that the words proved are of equivalent meaning. They must be substantially the same words laid in the affidavit or enough of them to convey the poison involved. [Noeninger v. Vogt, 88 Mo. 589; Watson v. Musick, 2 Mo. 29; ...
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