Rammell v. Otis

• Decision Date: 31 May 1875
• Citation: 60 Mo. 365
• Parties: JOHN RAMMELL, Respondent, v. MERRILL OTIS, Appellant.
• Court: Missouri Supreme Court

60 Mo. 365

JOHN RAMMELL, Respondent,

v.MERRILL OTIS, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Nodaway Circuit Court.

Dawson & Edwards, with Bennett Pike, for Appellant.

I. The words charged are not actionable per se, but only by reason of some special damage in respect to plaintiff's trade or profession, which damage should have been averred and proved and was not. (Curry vs. Collins, 37 Mo., 324; Sellers vs. Tell, 4 Barn. & Cr., 655.)

Johnston & Jackson, for Respondent.

I. The court did not err in the admission of evidence under the second count in the petition. Any charge of dishonesty against one in connection with his profession or business, whereby his character in his profession or business may be injuriously affected, is slanderous per se. (Fowels vs. Brown, 30 N. Y., 20; Backus vs. Richards, 5 Johns., [N. Y.] 476; Burtch vs. Nicherson, 17 John., 217; 1 Am. Lead. C., 5 ed., 114-116; 1 Stark. Sland., 134.)

WAGNER, Judge, delivered the opinion of the court.

This was an action for slander. The petition contained two counts. The first charged that the defendant accused the plaintiff of the crime of larceny, in stealing meal, flour and grain from a mill belonging to defendant and others, in which plaintiff was employed as a miller. The second count charged that the defendant accused plaintiff, in his character and profession of miller and book-keeper for the company, with keeping false and dishonest books.

The defendant admitted speaking the words, and justified by alleging their truth. On this issue the cause was tried, and there was a verdict on both counts for the plaintiff.

On the trial defendant objected to the introduction of any testimony on the second count, because the same did not state facts sufficient to constitute a cause of action; and the principal reason assigned was, that there was no allegation of special damages. The objection was overruled, and the evidence was permitted to be introduced.

There is no controversy in reference to the proceedings on the first count. The charge in that count is the crime of larceny, and that is actionable per se; and to maintain the action it is not necessary to either aver or prove any special damages. But the second count stands upon a different basis. It sets out that the plaintiff was a miller by profession, and the owner in part and operating a grist mill; and as such miller he had always conducted and demeaned himself with honesty, etc., and was never suspected, nor had he been guilty of making false entries or falsifying the books of account of the mill in which the business transactions of the parties were kept; yet, the defendant well knowing the premises, and maliciously intending to injure the plaintiff in his good name and credit, and in his capacity and profession as a miller, and to cause it to be believed that plaintiff was guilty of keeping false and fraudulent accounts, and of dishonest acts, in his capacity and profession of...