Lightfoot v. Jennings
| Decision Date | 09 January 1953 |
| Docket Number | No. 42982,No. 2,42982,2 |
| Citation | 363 Mo. 878,254 S.W.2d 596 |
| Parties | LIGHTFOOT v. JENNINGS |
| Court | Missouri Supreme Court |
Hosmer & Newberry, Springfield, for appellant.
Wear & Wear, Sam M. Wear and William A. Wear, Springfield, for respondent.
BARRETT, Commissioner.
This is an action for actual and punitive damages for slander and libel. There are three counts in the plaintiff's second amended petition, two for slander and one for libel. The defendant filed a motion to dismiss all three counts of the petition for failure to state a cause of action. The trial court sustained the motion as to counts one and two and the plaintiff has appealed. The defendant has filed a motion to dismiss the plaintiff's appeal as premature for the reasons that count three of the second amended petition and count four of the first amended petition have not been disposed of, hence there is not a final appealable judgment.
Unquestionably, it is the general rule that for the purposes of an appeal a judgment must be a final judgment and to be final the judgment must dispose of all parties and all issues in the case and failing in this respect an appeal is premature and subject to dismissal. Section 512.020 RSMo 1949, V.A.M.S.; Supreme Court Rule 3.24; Deeds v. Foster, Mo.Sup., 235 S.W.2d 262; Graham v. Bottorff, Mo.App., 240 S.W.2d 191; Shoush v. Truitt, Mo.App., 235 S.W.2d 859. But the general rule is not applicable to the record and circumstances of this appeal. When the plaintiff filed his second amended petition he abandoned the allegations of his former petitions, including count four of the first amended petition, and even though the former petitions are included in the transcript upon this appeal they are not now appropriately before this court. New First National Bank v. C. L. Rhodes Produce Co., 225 Mo.App. 438, 37 S.W.2d 986; Wood v. Wells, Mo.Sup., 270 S.W. 332; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660. Consequently, for appellate purposes and finality of judgment, count four has been disposed of. As to count three of the petition involved upon this appeal, the defendant has entered into a stipulation which recites that through inadvertence on the part of the reporter the original transcript is incomplete. The court entered a judgment of dismissal as to counts one and two and the court also entered this judgment: 'It is further ordered by the Court that a separate trial be had on Count Three in this cause.' The record does not reveal the court's reasons for ordering a separate trial of count three, except for the fact that it is for libel, they all involve the same parties and, more or less, common questions of law and fact, Brush v. Harkins, D.C., 9 F.R.D. 604; 1 Carr, Civil Procedure, Sec. 795, but the defendant does not claim that the trial court abused its discretion in ordering a separate trial of count three. Bedser v. Horton Motor Lines, 4 Cir., 122 F.2d 406. There is no claim of an abuse of discretion and under the civil code the court was authorized to order the separate trial. Sections 510.180, 511.040, 507.050 RSMo 1949, V.A.M.S.; Supreme Court Rule 3.29. And, a separate trial having been ordered as to count three, the judgment of dismissal as to counts one and two was a final appealable judgment, Harper v. St. Joseph Lead Co., 361 Mo. 129, 233 S.W.2d 835, and the question for review is whether those counts state claims upon which relief can be granted, that is whether they state causes of action for slander. There is no allegation or claim of special damages and the precise question as to both counts is whether the language relied upon is defamatory and slanderous per se.
In the first count the plaintiff alleges that a public meeting was held in one of the court rooms in the Greene County Courthouse. In the course of the meeting the defendant stated that 'M. D. Lightfoot was paid by private utility money to defeat the bond issue' at a special election. Whereupon, it is alleged, the plaintiff presented a complete list of contributors to campaign funds to be used against the bond issue and 'read such list to the meeting in detail and thereupon plaintiff asked if a notary public was in the crowd and one John McKinney, a then commissioned notary public within and for the County of Greene, State of Missouri, arose and at plaintiff's instigation and suggestion, said John McKinney, a notary public, swore plaintiff under oath administered by said notary public that said statements were true and correct and further that 'other than two one-dollar bills mailed anonymously years ago'' plaintiff was never paid one cent by anyone. After this episode it is alleged the defendant uttered the following slander: The basis of the claim that the language is slanderous per se is this allegation 'meaning and intending to mean and being understood by those present to mean that private utility money was used by plaintiff in the aforesaid bond election and that the plaintiff had sworn falsely, said charge of false swearing being a crime under the law of the State of Missouri.'
The appellant contends that the language complained of imputes to him the crime of making a false affidavit, a crime punishable by imprisonment, even though a misdemeanor, and is therefore slanderous per se. It may be conceded, if in the stated circumstances the language complained of imputes to the plaintiff the crime of making a false affidavit, that he has stated a cause of action for slander, even though there is no allegation or claim of special damages. Vaughn v. May, 217 Mo.App. 613, 274 S.W. 969; Tincher v. National Life & Accident Ins. Co., 235 Mo.App. 663, 146 S.W.2d 663; Boyce v. Wheeler, 197 Mo.App. 295, 195 S.W. 84. 'Words charging a person with having sworn falsely in reference to an affidavit have also been held actionable when involving criminal responsibility.' 33 Am.Jur., Sec. 32, p. 58. The Missouri Statute with reference to making a false affidavit is this: 'Every person who shall willfully, corruptly and falsely, before any officer authorized to administer oaths, under oath or affirmation, voluntarily make any false certificate, affidavit or statement of any nature, for any purpose, shall be deemed guilty of a misdemeanor, and shall upon conviction be punished by imprisonment in the county jail not less than six months, or by fine not less than five hundred dollars.' Section 557.070 RSMo 1949, V.A.M.S. In connection with the statute and the allegatons of the petition it is also assumed, for the purposes of this opinion, that the notary was authorized to perform the functions of his office in the unusual circumstances alleged in the petition. State v. Boland, 12 Mo.App. 74; 66 C.J.S., Notaries, Sec. 6(c)(2), p. 615. It will be noted, however, that there is no allegation in the petition from which it is a possible inference that the plaintiff made an affidavit. He alleges that he read the list of contributors to the audience and that the notary 'swore the plaintiff under oath administered by said Notary Public that said statements were true and correct * * *.' Even the plaintiff does not claim that he made an affidavit and the defendant's language that 'no sworn statement can change the truth' is not a charge that he did make a false affidavit. An affidavit is a 'sworn statement in writing.' 2 C.J.S., Affidavits, Sec. 10, p. 932; Webster's New International Dictionary. The statute with reference to false affidavits, Section 557.070 RSMo 1949, V.A.M.S., 'covers only the case of something in writing,--as, for instance, an affidavit, which is a written oath; and a statement under the ejusdem generis rule * * * must also be in writing.' State v. Carpenter, 164 Mo. 588, 594, 65 S.W. 255, 256. The language relied upon, in the circumstances, does not impute to the plaintiff the crime of making a false affidavit and is therefore not slanderous per se, and the trial court did not err in dismissing count one of the petition for failure to state a...
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Riss v. Anderson
...must be charged in order to invoke this rule. It has been said that where the crime is a felony the rule applies. Lightfoot v. Jennings, 1953, 363 Mo. 878, 254 S.W.2d 596, 599; Tilles v. Pulitzer Pub. Co., 1912, 241 Mo. 609, 145 S.W. 1143, 1149. Other cases make it clear, however, (a) that ......
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...v. Pulitzer Publishing Company, Mo., supra, and whether the alleged libelous words, when given their natural meaning, Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, are 'capable of the defamatory meaning ascribed to them' is a question of law for the court to decide on a motion to dism......
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