Dyer v. Morris

• Decision Date: 31 August 1835
• Parties: REBECCA DYER v. WILLIAM MORRIS.
• Court: Missouri Supreme Court

4 Mo. 214

REBECCA DYER

v.WILLIAM MORRIS.

Supreme Court of Missouri.

August Term, 1835.

ERROR TO THE CIRCUIT COURT OF MONTGOMERY COUNTY.

TOMPKINS, J.

Dyer sued Morris in an action on the case for words spoken, and had judgment in the Circuit Court; and to reverse that judgment, Morris prosecutes his writ of error. There were four counts in the declaration. Before the trial, the defendant moved the court to strike out each count, and the court did strike out the first and the fourth, but refused to strike out the second and third counts. After verdict and judgment, the defendant moved for a new trial, and the court overruled his motion. A motion in arrest of judgment was then made and overruled.

The reason assigned for a new trial is, that the evidence does not support either the second or third count of the declaration; other reasons were assigned, but as they seem to have been assigned without paying due attention to the subject and to be most obviously bad, they are not adverted to. On the trial the plaintiff in error produced a witness, whom the court refused to permit to testify, because he had been in the court while the other witnesses were under examination, contrary to an order of court made to that effect. The witness stated that he had returned into court, because he was told by the plaintiff in error, that he would not be examined, and the plaintiff in error declared that he did not wish to examine the witness on any point on which the other witnesses had been examined. The inquiry then will be--did the court commit error--1st, in refusing to strike out the second and third counts in the declaration?--2nd, in refusing to arrest the judgment?--3rd, in refusing to grant a new trial?--4th, in rejecting the witness offered.

1st. The words spoken, as charged in the second count are:--“Rebecca Dyer's daughter has gone down the river with two whores; Mrs. Dyer says she is gone to see her uncle--but it is generally believed by those persons who are acquainted with the family, that she is gone with the two women (the two whores aforesaid, meaning to the “goose-horn”--a bawdy house, or house of ill-fame (meaning) at St. Louis. The said defendant meaning thereby, and it was so then and there understood by the said Joseph Counts and other citizens, present as aforesaid, that the said plaintiff was in company with two bawds in a bawdy-house at St. Louis, and herself a bawd.” The words stript of the innuendos, several of which have been omitted as altogether useless, are:--“Rebecca Dyer's daughter, has gone down the river with two whores; Mrs. Dyer says she is gone to see her uncle, but it is generally believed by those persons who know the said plaintiff and her family, that she is gone with the two women to the “goose-horn” at St. Louis.” An innuendo, as “he” (meaning the said plaintiff, is only explanatory of some matter already expressed, it seems to apply the slander to the precedent matter, but cannot add to, enlarge, extend or change the sense of the previous words, and as already stated, the matter to which it alluded must always appear from the antecedent parts of the declaration. See 1 Chitty's Pl. 383, and 1 Saunders 243, note 4, where it is said, that in an action upon the case for saying of another “he has burnt my barn,” the plaintiff cannot by way of innuendo, say, meaning “his barn full of corn,” because that is not an explanation of what was said before, but an addition to it. But if in the introduction, it had been averred that the defendant had a barn full of corn, and that in a discourse about that barn, the defendant had spoken the words of the plaintiff, an innuendo of its being the barn full of corn, would have been good; for by coupling the innuendo with the introductory averment “his barn full of corn,” it would have made it complets The note is long and all the matter well worth a lawyer's attention.

Now to apply the remarks in this note, to the count before us, who can understand that the pleader when he states that the defendant charged that the plaintiff went with two whores to the “goose-horn” at St. Louis, means also to inform us that a “goose-horn” is a bawdy-house, or house of ill-fame; for it is certain that those two words “goose-horn,” do not of themselves import as much, nor is there any thing in the introductory part of his declaration to which his innuendo directs us for an explanation of the term; still less could it be expected that we should understand from those same words that the plaintiff was at the time of speaking those words in the company of two bawds in a bawdy-house, at St. Louis, and herself a bawd. A bawd is one who procures opportunites for persons of opposite sexes to cohabit in an illicit manner, and may be, while exercising the trade of a bawd, perfectly innocent of committing in his or her own proper person, the crime either of adultery or fornication; whatever the person speaking these words might have...