Lewis v. McDaniel

• Decision Date: 31 October 1884
• Citation: 82 Mo. 577
• Parties: LEWIS, Administrator, v. MCDANIEL, Appellant.
• Court: Missouri Supreme Court

82 Mo. 577

LEWIS, Administrator,

v.MCDANIEL, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Franklin Circuit Court. -- HON. A. J. SEAY. Judge.

AFFIRMED.

Crews & Booth and Thos. B. Crews for appellant.

The words charged are not actionable, and the words proved are not only not the same in substance, but are not even equivalent, and do not convey the same ideas. The first instruction for plaintiff was erroneous in the use of the words “in substance,” or “substantially.” Attebury v. Powell, 29 Mo. 427. It is exclusively the province of the court to determine whether there is such an identity between the words proved and those charged in the petition as will support the action. Berry v. Dryden, 7 Mo. 324. The verdict was erroneous in being a general one on two causes of action. Johnson v. Dickers, 25 Mo. 580; Brady v. Hash, 46 Mo. 461. The judgment should be reversed because the jury carried a refused instruction of plaintiff with them to the jury room. R. S., § 3655.

T. A. Lowe for respondent.

There was no substantial error in the trial. The second and third clauses of the petition stated sufficient facts to constitute a cause of action. Elfrank v. Seiler, 54 Mo. 134. It was not necessary to aver and prove special damage, as the law presumed malice. Birch v. Benton, 26 Mo. 153; Barbee v. Hereford, 48 Mo. 323. There was no fatal variance between the words charged and those proved. Birch v. Benton, supra; Pennington v. Meeks, 46 Mo. 217. The first instruction for respondent was proper. Cases just cited. The attention of the lower court was not called to any irregularity in permitting respondent's fourth instruction to go to the jury. The Supreme Court will not consider such exceptions not taken at the time the error is committed. Sweet v. Maupin, 65 Mo. 68; De Graw v. Prior, 53 Mo. 314. The objection comes too late on motion for new trial or in arrest. Hirt v. Hahn, 61 Mo. 496; Berry v. Smith, 54 Mo. 148. The rule that where there are two counts, there must be a verdict on each count does not apply in this case. Brady v. Connelly, 52 Mo. 19; Pennington v. Meeks, 46 Mo. 217; 1 Starkie on Slander, p. 434. The judgment did not abate by reason of the death of plaintiff. Lewis v. Railroad Co., 59 Mo. 495.

RAY, J.

At the November term, 1878, of the circuit court of Franklin county, the respondent filed his petition in an action for slander, in three clauses, in substance as follows:

1st, That on or about the 25th day of December, 1876, in the vicinity and neighborhood of respondent and appellant, in the county of Franklin, the appellant maliciously intending to injury the respondent in his good name, fame and credit, etc., in the hearing of one John Lefler and others spoke of and concerning the respondent the following false, malicious and defamatory words: “John Thompson killed my hogs and eat them, and I want him (respondent) to hear it, and know that I said it.”

2nd, That the appellant still further intending to injure the respondent in his good name, fame and credit, and to cause it to be suspected and believed by neighbors and other good citizens of the vicinity that the respondent was guilty of the offenses and misconduct hereinafter mentioned and charged upon him in a certain discourse which the appellant had on or about the 13th day of August, 1878, at a store in the presence and hearing of one H. H. Tupker and divers other good citizens, falsely and maliciously spoke of and concerning the respondent, the following false and defamatory words, that is to say: “John Thompson killed my hogs and I can prove it, and he (meaning respondent) is the biggest thief on this creek, and I can prove it by Val. Mitchell and his boys that he (meaning respondent) has stolen my hogs.”

3rd, That further intending to injure respondent, etc., the appellant on or about the 15th day of August, 1878, spoke of and concerning the respondent, in the presence and hearing of one Valentine Mitchell and other citizens, the following false, malicious and defamatory words: “John Thompson's water gates were traps to steal other people's stock in,” thereby intending to injure respondent in his good name, etc., and to create the belief that he was a hog thief, and to bring him into disgrace Wherefore he prayed judgment for $5,000 and costs.

The answer is a general denial, and also a specific denial of each allegation and of any attempt to injure respondent, or that he was injured.

At the inception of the trial the appellant objected to the reception of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. The court sustained the objection as to all matters alleged in said first clause, and excluded all evidence in regard thereto, and this part of the petition, under this ruling, and the result of the trial, becomes wholly immaterial. The court overruled said objection as to the matters alleged in said second and third clauses of the petition, and admitted the evidence offered by the respondent to sustain them, to which action of the court the appellant excepted. Under the evidence and the instructions the jury returned a verdict for one cent, and judgment was thereupon given for this amount and costs, and the case appealed to this court. It may be stated that, after the appeal was taken, the respondent died, and said Mahlon R. Lewis was appointed administrator of his estate by the probate court of Franklin county, and said Lewis has been duly substituted upon the record in this court.

In a case like this the suit does not abate by death of plaintiff, pending the appeal in this court, and no such objection is here urged. See 59 Mo. 495, 503. The objections urged to the petition in this case are not, we think, well taken. The words set forth in the second and third clauses of the petition plainly impute to and charge the respondent with a felonious offense, and were actionable per se. The law in such case imports a damage, and no averment of special damage was necessary.

Upon the trial the witness Tupker, in whose presence, among others, the slanderous words set out in the second clause of the petition are charged to have been spoken, testifies as follows: “I know defendant. I had a conversation with him on Calvey Creek in August, 1878. He said to me, talking of plaintiff, “You lean to Thompson, he is the biggest thief on the creek, and he could prove it by Mitchell's boys that he killed his hogs.” There was no more said. I went away to my work.” The objection is made that the words thus proved are different from the words charged. It is contended for appellant that the only words in said second clause that are to be construed as actionable in any event, are the words, “I can prove by Val. Mitchell and his boys that he has stolen my hogs,” and that the words used by the witness, “He could prove by Mitchell's boys that he has killed his hogs,” are not substantially the same words and have not even a similar import. If the words thus quoted were all the words employed, and those that alone constituted the charge made in this part of the petition, then, we think, there would not merely be a variance therefrom in the evidence of the witness, but there would be a total failure of proof. Many of the technicalities and niceties with which actions of this description, both as to pleadings and proof, were formerly incumbered, arising in part from the anxiety of courts to discourage such actions, are not at this day and under our system, to be approved. The strictness formerly observed as to proving all the words, and only the words and precisely as said, is not now required. All the words need not be proved; some of them may be omitted, provided those proved are words containing the poison to the character and constitute the precise charge of slander averred. Birch v. Benton, 26 Mo. 161; Pennington v. Meeks, 46 Mo. 217.

In addition to the words in the second clause of the petition, to the effect, that he could prove by Val. Mitchell and his boys that respondent had stolen his hogs, the following words were also charged: “John Thompson killed my hogs, and I can prove it, and he is the biggest thief on this creek.” If the clauses of the sentences in the second set of slanderous words of the petition, and in the above language of the witness are transposed, and this in no wise affects the sense, it becomes apparent, we think, that the poisonous words thus charged and those proved are identical, and not merely substantially the same. In the pleading and proof the direct and unqualified affirmation is made by appellant in speaking of respondent upon the subject of the hogs, that respondent is a thief, and the words charged in the petition and omitted from the proof that he could prove it by Mitchell and his boys that he had stolen his hogs, may be treated as superfluous. They were neither necessary to be averred or proved.

We do not think the words, “he is the biggest thief on this creek,” are in their proper connection here with other allegations, and after verdict of the jury under the instructions, to be regarded merely as an imputation of bad principles or evil propensities. When the term thief is thus applied, it is to be presumed that it is used in a felonious sense, and when admitted or shown to have been used by satisfactory proof, it should then devolve upon the defendant to show that it was not employed in such felonious sense. In this case the defense is a denial that appellant spoke the words, and as there is a conflict in the evidence, the finding of...