Fallenstein v. Booth

• Decision Date: 31 July 1850
• Citation: 13 Mo. 427
• Parties: FALLENSTEIN v. BOOTH.
• Court: Missouri Supreme Court

13 Mo. 427

FALLENSTEIN

v.BOOTH.

Supreme Court of Missouri.

July Term, 1850.

APPEAL FROM HOWARD CIRCUIT COURT.

Booth commenced this action in the Howard Circuit Court against Fallenstein, charging him with having spoken the slanderous words charged in the following count, to-wit: “For that the said defendant, wickedly intending to injure the plaintiff heretofore, to-wit: on the first day of May, 1849, in a certain discourse which he then had of and concerning the plaintiff, did in the presence and hearing of divers persons, maliciously and falsely speak and publish of and concerning the plaintiff, the following false, scandalous and defamatory words; that is to say, he (meaning the plaintiff) stole his note-- he (meaning the plaintiff) stole his note and carried it off in his pocket--he (meaning the plaintiff) stole his note and tore it up--he (meaning the plaintiff) stole it--he (meaning the plaintiff) stole my note--he (meaning the plaintiff) stole my note and carried it off in his pocket--he (meaning the plaintiff) stole my note and tore it up--he (meaning the plaintiff) stole my note from me--he (meaning the plaintiff) stole the note from me--he (meaning the plaintiff) stole the note--he (meaning the plaintiff) stole the note from me and carried it off in his pocket--he (meaning the plaintiff) stole the note and carried it off--he (meaning the plaintiff) stole his note to me--he (meaning the plaintiff) stole the note he had given me.”

The second count in the declaration is in the same form, except the speaking of the words is laid in the second person. The declaration has the general conclusion. By means of the committing of which grievances by the said defendant, &c.

The defendant filed the general plea under the statute, and at the December term, 1849, upon the trial of the cause, plaintiff proved by one Peterson Parks, that in a conversation in the store of defendant between plaintiff and defendant, concerning a promissory note for $1 92, which plaintiff had a short time before executed to defendant, defendant said “he had stolen his note;” that this was in reply to what plaintiff had said, that was in substance that he had given his note, and could not pay the account until he got his note. Defendant proved by Mason and Bradley, who were both present at the interview about the note, that defendant did not speak the words as stated by Parks. That he said in substance, the note being gone, did not release plaintiff from the payment of the debt, and that the matter lay between Mason and his clerk, and defendant, and that he did not believe Mason took it, because he had the care of much more important papers all the time. Upon this evidence, the cause being submitted without argument, the jury returned a verdict for plaintiff of one thousand dollars. Motions for setting aside the verdict for a new trial, and also in arrest of judgment being overruled, Fallenstein has brought his case here by appeal.

CLARK & DAVIS, for Appellant. 1. It is contended by appellant, that upon the face of the record, there is no cause of action stated. That the term “note,” used in the court as being the thing stolen, is too uncertain and indefinite for a direct charge of slander. That being the case, there is no averment in the declaration, that by the use of these words, defendant intended to charge plaintiff with the commission of larceny or any other crime, or that he was so understood. 2. There is no allegation in the declaration that any special or particular kind or description of note was meant by the words spoken, neither is there any innuendo used as to the application of the term note, nor is there any colloquium averred concerning a note of any kind. Starkie on Slander (bottom page) 304 to 312; 2 Pick. 320; 15 Wend. 232; 1 Chitty, 437; 8 Mo. R. 512; 1 Chitty, 429, 430, 431. 3. And if the declaration were sufficient to support the judgment after verdict, the damages were excessive, and under all the circumstances, a new trial ought to have been granted. The words spoken are as proved in the third person. That cannot be so; such things occur in draughting bills of exceptions inadvertently. The testimony of Parks is also to the effect that the conversation was in the store of the defendant, and when both parties were present, and this is also stated in the testimony of Mason and Bradley. 4. The speaking of the words, then, was upon an occasion and under circumstances which rebut the idea of malice. Plaintiff being asked for a small amount due him by defendant, required the note to be got before he would pay it, and that being gone under circumstances very peculiar, to say the least, defendant uttered the words to his face, in his own house, in the heat of blood, and the idea of previous malice is rebutted by all the facts that up to that time, plaintiff had been buying and dealing on credit in that store.

LEONARD & PREWITT, for Appellee. 1. There is nothing in the case to warrant the interference of this court upon the ground of “excessive damages.” Coleman v. Southwick, 9 Johns. 45. 2. The words laid are actionable, and the declaration good even upon demurrer. Words are to be understood as the community understand them, and the old rule of understanding them in their mildest sense is abandoned. 1 Starkie on Slander, side page 45 and 51, and cases there cited in note 19; Woolnoth v. Meadows, 5 East, 463; Hagley v. Hagley, 2 Bailey, 592; Davis v. Johnson, 2 Bailey, 579; Wiley v. Campbell, 5 Mon. 396; 2 Binn. 34, Brown v. Lamberton; Hume v. Arrowsmith, 1 Bibb; Walton v. Singleton, 7 Serg. & Rawle, 451; Andrews v. Kossenheifer, 3 Serg. & Rawle, 254; Cornelius v. Slyck, 21 Wend. 71; Rev. Stat. 1845, p. 360, § 37. 3. If it were not good on demurrer, here there has been a...