Houston v. Lane

• Decision Date: 28 February 1867
• Citation: 39 Mo. 495
• Parties: GEORGE W. HOUSTON, Plaintiff in Error, v. WILLIAM LANE, Defendant in Error.
• Court: Missouri Supreme Court

39 Mo. 495

GEORGE W. HOUSTON, Plaintiff in Error,

v.WILLIAM LANE, Defendant in Error.

Supreme Court of Missouri.

February Term, 1867.

Error to Putnam Circuit Court.

H. M. & A. H. Vories, for plaintiff in error.

The court below erred in overruling plaintiff's motion to strike out part of the defendant's answer. The justification attempted to be set up to the third count in the petition was bad, and ought to have been stricken out on plaintiff's motion. The plea or answer should neither be broader nor narrower in its allegations than the petition attempted to be answered; if it is so, it is bad, and should be stricken out. In this case, the charge as alleged in the petition is one of larceny, and the justification is of another, and is otherwise evasive.--Swan v. Berry, 3 Blackf. 298; Starkie on Slander, 333; Stillwell v. Baxter, 19 Wend. 487; Terry v. Field, 10 Vt. 353.

Hall & Oliver and Shanklin, for defendant in error.

The court below committed no error in refusing to sustain the motion to strike out certain parts of the answer. The answer is in the nature of a confession and avoidance, and the part of the answer complained of is properly set up in the answer by way of avoidance or justification of the speaking of the words complained of. Motion to strike out was not the proper remedy, but a demurrer was the remedy.FAGG, Judge, delivered the opinion of the court.

Upon an inspection of the record in this case, it is apparent that the judgment of the court below must be reversed. It is an action for slanderous words spoken by the defendant, and is brought to this court from the Circuit Court of Putnam county by writ of error. The petition contains three counts, the first two of which charge the defendant with speaking certain false and slanderous words of and concerning the plaintiff, by which it was intended to impute to plaintiff the crime of perjury. The third is as follows:

“3. Plaintiff further states that on or about the 15th day of July, 1865, at Putnam county, Missouri, in a conversation with divers good citizens of said county respecting certain timbers which he (the defendant) accused the plaintiff with stealing, the meaning whereof was well understood by those present and hearing the same spoken and published of and concerning the said plaintiff the following false, scandalous, and defamatory words, to-wit, ‘he (meaning plaintiff) has lied and stole’ meaning thereby, as was well understood by those hearing the same, to charge the plaintiff with committing the crime of larceny; whereby plaintiff says he is damaged,” &c.

It is admitted by the answer that the defendant did speak the words as charged in the first two counts of the petition, coupled with the averment that the same were true as spoken. The same reply is made to the charge contained in the third count, with this addition, that the words so spoken did not refer exclusively to the timber mentioned in the petition, but were intended to include several other larcenies committed at various times by the plaintiff. The answer then proceeds to charge that the plaintiff did, on or about a certain time stated, steal and carry away certain goods and chattels, the property of the defendant, to-wit, “one well bucket and rope attached thereto, of the value of three dollars, and one spade of the value of two...