Noeninger v. Vogt

• Decision Date: 30 April 1886
• Citation: 88 Mo. 589
• Parties: NOENINGER, Appellant, v. VOGT.
• Court: Missouri Supreme Court

88 Mo. 589

NOENINGER, Appellant,

v.VOGT.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Cape Girardeau Circuit Court.--HON. J. D. FOSTER, Judge.

REVERSED.

Oliver & Limbaugh for appellant.

(1) A charge of dishonesty against an individual in connection with his business, whereby his character in such business may be injuriously affected, is actionable. Rammel v. Otis, 60 Mo. 365. (2) The words charged in these two counts are actionable per se. Cooley on Torts, 192 and 202 [1 Ed.] and cases cited; Burtch v. Nickerson, 17 Johns. 217; Brooker v. Coffin, 5 Johns. 188; 2 Wheaton's Selwin, 1272 and 1273; Townsend on Libel and Slander [3 Ed.] sec. 192, and cases cited. And in such cases the law infers malice. Hall v. Adkins, 59 Mo. 144; Price v. Whiteley, 50 Mo. 439; Pennington v. Meeks, 46 Mo. 217; Weaver v. Hendrick, 30 Mo. 502; Lewis v. Few, 5 Johns. 1. (3) The court erred in sustaining the demurrer to the evidence. Wilson v. Bd. of Education, 63 Mo. 137; Frick v. Railroad, 75 Mo. 595; Buesching v. Gaslight Co., 73 Mo. 219; Cook v. Railroad, 63 Mo. 397.

Wilson Cramer and R. H. Whitelaw for respondent.

BLACK, J.

This is an action of slander in three counts. The slanderous words were spoken, in the German language, to, and in the hearing of the plaintiff, and in the hearing of other persons, all of whom understood their meaning. The petition sets out the offensive words in the language in which they were uttered and also gives a translation of them. At the close of the plaintiff's case, the court sustained a motion for judgment for the defendant, on the ground that the evidence failed to sustain the averments of the petition. The respondent has filed no brief and all we have to indicate his position is the motion itself.

The charge of the first count, as the words are translated, is “You are a defrauder; all that you have you accumulated by defrauding,” intending thereby to charge plaintiff with cheating and defrauding in his business of a merchant and miller. It is also alleged that the plaintiff was engaged in those occupations, and that the words were uttered of him in his said business. The defamatory words of the third count, as translated, are: “You are an incendiary and a murderer.” Any charge of dishonesty against an individual in connection with his business, whereby his character in such business may be injuriously affected, is actionable. Rammell v.Otis, 60 Mo. 365. That these words of the first count do charge the plaintiff with fraud and dishonesty in his business cannot be questioned, and the evidence tends to show that they were spoken of the plaintiff in his occupation of a merchant and miller. A general charge of being a murderer is actionable. Townshend on Lib. and Slan., sec. 168; Odgers on Lib. and Slan. [Bigelow] 65, 121. See also Anthony v. Stephens, 1 Mo. 254. It follows that the words of both of these counts are actionable.

The words as alleged in the German are proved with scarcely any variance, but there is some variance in the translation as made by the witnesses, and especially is this so, as to the word, “Mordbrenner,” in the third count. The witnesses generally use expressions of similar import; one translates the words of both counts exactly as stated in the petition. The slander proved must substantially correspond with that charged. This rule, it has been repeatedly held by this court, means that if the words charged to have been spoken are proved, but with the omission or addition of others, not varying the sense, then the variance is immaterial. It is not enough, however, that the words proved are of equvialent meaning; they must be substantially the same words laid in the petition. Berry v. Dryden, 7 Mo. 324; Birch v. Benton, 26 Mo. 153; Street v. Bushnell, 24 Mo. 329; Pennington v. Meeks, 46 Mo. 217; Bundy v. Hart, Id. 466. The rule just stated must of necessity apply to the words in the vernacular in which they are uttered. If the proof shows that the words are correctly translated in the petition, it is no ground for demurrer to the evidence that they may be or are, by the witnesses, also translated by the use of equivalent words and expressions. The meaning of the foreign words is a question of fact, to be proved like any other fact. This will, of course, be done by those conversant with both languages.

Again a demurrer to the evidence admits every fact which any of the evidence tends to prove, and also every fact which the jurors might with propriety infer from the evidence before them. It should be allowed only when the evidence, thus considered, wholly fails to make proof of some...