Elfrank ex rel. Elfrank v. Seiler

• Decision Date: 31 October 1873
• Citation: 54 Mo. 134
• Parties: MARY ELFRANK by her next friend HERMAN ELFRANK, Plaintiff in Error, v. DREKA SEILER, et al., Defendants in Error.
• Court: Missouri Supreme Court

54 Mo. 134

MARY ELFRANK by her next friend HERMAN ELFRANK, Plaintiff in Error,

v.DREKA SEILER, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Bollinger Circuit Court.

Sutherlin and Wilson, for Plaintiff in Error.

I. The petition is sufficient under the statute. (W. S., 519, § 1; 1020, § 43; 1013, § 3; Stieber vs. Wensel, 19 Mo., 513; Dowd vs. Winters, 20 Mo., 361; Atwinger vs. Fellner, 46 Mo., 276; Bersch vs. Dittrick, 19 Mo., 129; W. S., 1034, § 5.)

II. A failure to set out the words in the Holland language, when words are set out in the English language that are actionable per se, is not a failure to state a cause of action.

III. Defendant should have demurred. Failure to demur was a waiver.

J. C. Noell and W. N. Nalle, for Defendants in Error.

I. Under our statute (2 W. S., 1020, § 43,) commented upon and construed in case of Stieber vs. Wensel, 19 Mo., 513, and Atwinger vs. Fellner, 46 Mo., 276, it is not necessary to set out the foreign words or aver that they were understood; but it is submitted that upon a strict and proper construction of that statute, the pleader having averred in his declaration that the words were spoken in the Holland language, must further aver that the words of slander given in English are a translation.

II. The proper mode of declaring, is to state the words in the foreign language and aver their signification in English, &c. (Heard, Libel and Slander, 238, § 210; 1 Stark., Slander, [1 Am. Ed.] 361, 411.)

SHERWOOD, Judge, delivered the opinion of the court.

Action of slander. The petition charged that defendant's wife spoke of and concerning the plaintiff, and her sister Anna, * * * the following false and slanderous words in the Holland language, and which language and the words spoken were understood by those who heard them, to-wit: Elfranks! that mean people; whoring folks!” The words in the Dutch language were not set forth.

The answer of the defendants was the general issue.

The trial came on, a jury was impaneled, and the plaintiff offered to introduce evidence in support of the allegations of the petition; but this was objected to by the defendants, on the ground that the petition did not state facts sufficient to constitute a cause of action, in that, the words alleged to have been spoken in the Holland language were not set out in the petition in that language, etc., etc.

The court sustained the objection, plaintiffs excepted, took a non-suit with leave, etc., filed a motion to set aside the non-suit and this being overruled, again excepted and brought this cause here by writ of error.

Our statute respecting practice in civil cases has worked a radical change in the rules of pleading which formerly prevailed when the common law had sway; and now, instead of being tested by Chitty, the “ sufficiency” of the pleadings, except where otherwise specially provided, is to be measured by our Practice Act; and by reason of such change many trips and false steps which under the old regime would have proved fatal, are matters of no moment.

There are only two things under our liberal system which are fatal to a suit, and those are, first, that the petition does not state facts sufficient to constitute a cause of...