Miller v. Dorsey
| Decision Date | 31 May 1910 |
| Citation | 129 S.W. 66,149 Mo.App. 24 |
| Parties | JASPER MILLER, Respondent, v. GEORGE J. DORSEY, Appellant |
| Court | Missouri Court of Appeals |
May 6 1910, Submitted on Briefs
Appeal from Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.
AFFIRMED IN PART; REVERSED AND REMANDED (with directions) IN PART.
STATEMENT.--Plaintiff commenced this action against defendant in the circuit court of Lewis county on the 28th of January, 1908. Afterwards he filed an amended petition containing five counts. As the answer to the petition takes up each count separately, for convenience we state the answer to each count as we proceed with the statement.
The first count charged that defendant, "on the day of 1907," in the presence of one Thomas Day and in a conversation with defendant, said of and concerning plaintiff, "You are a thief; get away from here; you are a thief; you are a dirty, lying, thieving s--of a b--."
Answering this count defendant interposed, first, a general denial second, a specific denial of speaking the words charged third, specifically denies that by any words spoken he charged plaintiff with having committed larceny and denies the party present understood him so to charge; fourth, he denies knowledge of having spoken the words charged and alleges that plaintiff had at the time insulted, aggravated abused and enraged him and whatever he said was said in the heat of passion caused and provoked by plaintiff as aforesaid, and were words of abuse only and not of accusation, and were so intended as such and the hearers so understood them; fifth, he alleges that the articles which he is charged with having accused plaintiff of stealing were fixtures, a part of the real estate; that they were not the subject of larceny and that the taking would only be trespass and the hearers were at the time so informed and knew.
By the second count it is charged that the defendant accused plaintiff of stealing by speaking of him as follows: "I didn't call him a thief; but he stole some things out of the house and some wood."
The answer to this is substantially the same as that to the first count.
By the third count it is charged that the defendant accused plaintiff of having committed larceny by speaking of and concerning him as follows:
The answer to this is practically the same as to the other two counts, with the additional averment that the person to whom it is alleged the language was spoken of and concerning plaintiff "at the instance and request of plaintiff, that he might in behalf and for plaintiff, obtain and procure statements and utterances from defendant," to enable plaintiff to bring this suit and for the purpose of obtaining such statements, related and communicated to him utterances and communications of plaintiff, and this aggravated and enraged defendant and caused him to speak and utter any words of abuse, if any he did, on that occasion, and whatever he said was said in the heat of passion and were words of abuse only and not of accusation and the hearer so knew and understood.
By the fourth count it is charged that defendant accused plaintiff of forgery by speaking of him as follows: "They have changed the contract."
To this fourth count a general denial, a specific denial of speaking the words charged and a denial that the hearer understood defendant to charge plaintiff was guilty of forgery or that he intended so to charge was interposed.
By the fifth count it is charged that the defendant accused plaintiff of forgery by speaking of and concerning him the following words:
To this count defendant interposed the same defenses as interposed to the fourth count, with the additional averments as to the conversation having been brought on by a person acting at the instance of plaintiff and as are contained in the answer to the third count.
A general denial was filed by way of reply.
The trial was had before the court and a jury. Testimony was introduced on the part of plaintiff tending to show that defendant had spoken the words charged, or enough of the exact words charged to sustain the allegations of the several counts of the petition as to the words uttered.
There was evidence on the part of plaintiff tending to show that there had been a dispute between plaintiff and defendant as to a matter of indebtedness between them and as to the acts of plaintiff in removing certain property from a house and farm, which had been occupied by plaintiff but sold by him to defendant, and that in this conversation or dispute, the defendant enumerated certain articles which he claimed did not belong to plaintiff, such as window curtains, muslin sheeting which was nailed up to divide a room in the house, brackets off the wall, some fence posts not in place but strung along a division line, and some cord wood, which he claimed plaintiff had taken, and in the course of this dispute defendant became angry and uttered the words complained of in the first count, along with other words which were very abusive. There was evidence on the part of plaintiff tending to show that the words charged in the second and third counts of the petition were uttered by defendant of plaintiff concerning the same transaction and articles. There was also testimony on the part of plaintiff tending to show that the brackets referred to which he had taken from the house were iron brackets which had been put up by him and which he had been accustomed to move around with him when he moved.
Witness Norris, who was the one claimed to have been sent to defendant by plaintiff or his attorneys to trap him into a conversation and secure evidence for the prosecution of this case, denied any such employment.
A witness for plaintiff was asked on cross-examination if he understood from what defendant said that he was calling or intending to charge plaintiff with being a thief or whether he understood it to be simply words of abuse or reproach. He answered that he
One of the witnesses testified that he supposed from what he knew of the articles defendant accused plaintiff of carrying away that they belonged to the place, were fixtures, and that plaintiff could not be truthfully said to have stolen them.
We do not think it necessary to set out the testimony covering the allegation in the fourth and fifth counts of the petition for reasons which will hereafter be stated.
On the part of the defendant there was testimony tending to prove that the defendant was very angry when he uttered the words charged; also that plaintiff had admitted in conversations he had had with different parties that he had taken things off the farm that he should not have taken; that he might have taken something that he should not have taken. On his own behalf the defendant testified to the effect that he had purchased a farm from plaintiff. The understanding between them was that they closed the deal on the 23d of August 1906, and Miller was to give him possession on the first day of January following. Defendant went over to the farm just about a week before the time was up with the money to pay what he had agreed to and plaintiff would not accept it. Finally, in February, 1907, plaintiff surrendered possession of the premises to defendant. When defendant purchased the property he examined it and found that some posts had been hauled out along the line of the fence and plaintiff told him that they went with the farm, to fix up the fence between that farm and a neighboring one. When defendant got possession these posts were not there and he never found them. Plaintiff had taken two shelves and a bracket supporting them out of the kitchen and took a partition off of the wall, that is, sheets that were tacked up and formed a partition. They were muslin sheets stretched on a studding for a partition and these had been removed. At the time he bought the place and looked at the house, there was nothing said about this muslin not belonging there; they appeared to be tacked to the studding. The shelves referred to were put up in the kitchen on small cast-iron brackets. The bracket was nailed or screwed to the wall and when removed it left holes in the wall. Defendant spoke to plaintiff about them and he said he would either pay for them or bring them back and he agreed to bring them and the sheeting back; he offered to pay for them but defendant declined and told him to bring them back. When he spoke to plaintiff about the posts, plaintiff told him that he had split the posts up and put the wood from them on the place. Defendant was never able to find them. Any trouble between them was over these shelves and the muslin and the posts. That was where the difficulty started. With reference to the charge that the language referred to in the third count of the petition had been uttered in consequence of being drawn out in a conversation with Mr. Norris, defendant testified that he had not uttered the words in the form that Norris had testified to. Norris came to defendant's house and said he had seen Mr. Simpson, who appears to have been one of the attorneys for plaintiff at the...
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