Pennington v. Meeks

• Decision Date: 31 March 1870
• Citation: 46 Mo. 217
• Parties: N. J. PENNINGTON, Respondent, v. THOMAS J. MEEKS, Appellant.
• Court: Missouri Supreme Court

46 Mo. 217

N. J. PENNINGTON, Respondent,

v.THOMAS J. MEEKS, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from Fourth District Court.

Blair, Cover & Harrington, for appellant.

I. Plaintiff has united several causes of action in one and the same count. (34 Mo. 134; 36 Mo. 202; 39 Mo. 451.)

II. The words should be laid in the petition as uttered. (Watson v. Musick, 2 Mo. 29; 7 Mo. 324; 26 Mo. 153-61.)

III. While words actionable per se import malice, yet the presumption of malice is not conclusive. (2 Kern. 67-74.)

Ellison & Ellison, for respondent.

I. The appellant gains nothing by insisting that the words charged vary from those proven. They differed in the words “ he stole,” etc., and “ Pennington stole,” etc., both in the third person. (8 Johns. 75.)

II. The words charged implied malice, and the instruction was properly refused upon that subject. The answer set up nothing in mitigation of damages. The evidence showed no extenuating circumstances. (Weaver v. Henrick, 30 Mo. 502.)

III. “Different sets of words importing the same charge, laid as spoken at the same time, may be included in the same count.” (1 Chit. Pl. 405, note 3; Rathbun v. Emigh, 6 Wend. 407.)

CURRIER, Judge, delivered the opinion of the court.

This action was brought to recover damages for words alleged to have been spoken by the defendant, which imputed to plaintiff the commission of an immoral and indictable offense. The words charged are: “He (meaning the plaintiff) stole my hog, and I can prove it.” The words are also charged in this form: “He (meaning the plaintiff) stole one of our hogs.” The variation is immaterial. The material words are not only of the same signification, but are identical in both forms of expression. The other immaterial words are slightly modified so as to meet the proof under the different shapes in which it might come. In either form the words alleged impute to the plaintiff the crime of larceny, and that embraces the point and substance of the slander set out in the petition.

It is averred in the petition that the defendant, during the spring and summer of 1855, at different times and on different occasions, spoke the words in question of and concerning the plaintiff. It is thence inferred by the defendant's counsel that the petition contains different counts, stating different and independent causes of action. A motion in arrest is based on that theory. It is not well founded. The petition contains but one count, and states but one cause of action, and has but one conclusion claiming damages. The general features of the petition bear a close resemblance to the petition in Birch v. Benton, 26 Mo. 153, which sets out four different sets of words, and alleges them to have been spoken at different times and places. There was, however, but one conclusion of damages, and this court, per Richardson, Judge, declared the petition to contain but one count and one cause of action, although the court below had treated it as containing four counts.

Again, it is objected that different causes of action are mingled in the same count. What has been said substantially disposes of this objection. Different sets of words may be set forth in the same count, as was done in Birch v. Benton; and see Starkie on Slander, 442, Am. ed. 1858; Rathbun v. Emigh, 6 Wend. 407; Williams v. Harrison, 3 Mo. 290.

It is further objected that the slanderous words proved are different from those laid in the petition. There is no foundation for this complaint. The material words proved are identical with those alleged. One witness testified that the words were, “Don't you think Jim Pennington (plaintiff), the damned old rascal, stole one of our hogs?” Another witness put the words thus: “Have you heard about Pennington stealing one of my hogs?' or ‘our hogs?’ * * Meeks said, ‘It is so; he had stole my hog,’ or ‘our hog.”

Objections are also made to the action of the court in giving and refusing instructions. The instructions given were as favorable to the defendant as he had any right to demand, and put the issues of fact fairly to the jury. The material words charged were not only “substantially” proved, but literally. All the words charged need not be proved, either substantially or at all. It is sufficient to prove the identical words which of themselves constitute the slanderous imputation. (Creelman v. Marks, 7 Blackf. 281; Iseley v. Lovejoy, 8 id. 462.)

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