Johnson v. Bush

• Decision Date: 08 December 1914
• Citation: 171 S.W. 636,186 Mo.App. 107
• Parties: JUSTUS W. JOHNSON, Appellant, v. WADE H. BUSH, Respondent
• Court: Missouri Court of Appeals

171 S.W. 636

186 Mo.App. 107

JUSTUS W. JOHNSON, Appellant, v. WADE H. BUSH, Respondent

Court of Appeals of Missouri, St. Louis

December 8, 1914

Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.

Judgment reversed and cause remanded.

George W. Wadlow and John A. Blevins for appellant.

(1) Defendant's motion to make the amended petition more definite and certain should have been overruled. Sec. 1837 R. S. Mo. 1909; Atwinger v. Fellner, 46 Mo. 276. (2) Defendant cannot by motion to make more definite and certain require plaintiff to furnish the evidence upon which plaintiff expects to prove his case. Sec. 1818, R. S. Mo 1909.

S. T. G. Smith for respondent.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit for damages said to have accrued on account of an alleged slander. The court sustained defendant's motion to make the petition more definite and certain and this he declined to do. Thereupon the court dismissed the case and plaintiff prosecutes the appeal.

The petition is as follows:

"Plaintiff in this, his amended petition, leave to file the same being first had and obtained, for his cause of action, states that the defendant on or about the 6th day of January, 1911, at the city of St. Louis, Missouri, wilfully, wantonly and maliciously spoke of and concerning plaintiff in the presence and hearing of divers persons, certain false, defamatory and slanderous words, to-wit: 'He' (meaning plaintiff) 'is a thief, a rascal, a scoundrel, a damned hound,' thereby charging and intending to charge plaintiff of the crime of larceny and of dishonesty whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of five thousand dollars, for which he prays judgment."

Defendant's motion so sustained by the court, requiring the petition to be made more definite and certain, invoked an order that plaintiff be compelled to state the names of the persons to whom, or in whose presence, the slanderous words were uttered; also the circumstances under which defendant spoke the alleged slanderous words and the place where the same were spoken. So much of the alleged slander above set forth as charges plaintiff with being a thief is, of course, slanderous per se. [See Bridgman v. Armer, 57 Mo.App. 528; Johnson v. Dicken, 25 Mo. 580.] It appears from the context of the words used and as set out in the petition that they all form a part of one conversation in which defendant charged plaintiff with being a thief.

Our statute (Sec. 1837, R. S. 1909) provides as follows: "In an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be not controverted in the answer, it shall not be necessary to prove it on the trial; in other cases it shall be necessary."

Under this statute it has been expressly decided that it is not necessary for plaintiff to set forth the names of the persons in whose presence the words were uttered, or that they were understood by those present. [See Atwinger v Fellner, 46 Mo. 276; see also Guard v. Risk, 11 Ind. 156.] It is true in both of the cases cited the question was presented after verdict on the petition, but the rule is declared the same where the slanderous words are actionable per se when the question is raised, as here, on a motion to make more definite and certain. [See Marks v. Jacobs, 76 Ind. 216.] Indeed, the statute above copied says that it shall be sufficient to state generally the fact that the words were published...