Street v. Bushnell

• Decision Date: 31 January 1857
• Citation: 24 Mo. 328
• Parties: STREET, Appellant, v. BUSHNELL, Respondent.
• Court: Missouri Supreme Court

24 Mo. 328

STREET, Appellant,

v.BUSHNELL, Respondent.

Supreme Court of Missouri.

January Term, 1857.

1. Where the plaintiff in a suit for slander fails to prove the words as charged, the court may, in allowing an amendment, require the plaintiff to pay all costs that have accrued since the commencement of the suit.

Appeal from Henry Circuit Court.

F. P. Wright, for appellant.

I. The Circuit Court erred in excluding the evidence. It tended to prove the charge of the theft as alleged in the petition. Except in cases when the allegation is unproved in its entire scope and meaning, no variance between the allegation in the pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense. When the adverse party proves by evidence aliunde to the satisfaction of the court that he has thus been misled, and then only, the court has the right to adjudge costs upon allowing the amendment. In this case the defendant did not offer any proof that he had been misled, nor did he even so allege; hence the court erred in adjudging costs, and especially all the costs in the case. In cases where the court has a right to fix terms, those terms must be just. (Catlin v. Gunter, 1 Kernan, 368; R. C., Art. 9, §§1 and 2, p. 1253; 10 Howard's Prac. 316; Dewel v. Spence, 1 Abbot's Prac. 237; Miller v. Garting, 12 How. Prac. 203; Hagens v. De Hart, id. 322.)

II. The allegation in the petition was not unproved in its entire scope and meaning. (Morgan v. Livingston, 2 Rich. 573.)

III. The court erred in not permitting plaintiff to prove by the witness how they understood the words.

RYLAND, Judge, delivered the opinion of the court.

This is an action of slander, for words spoken of the plaintiff by the defendant. Upon the trial the plaintiff failed to prove the words as he had charged them to have been spoken; but proved words which he considered actionable. He, therefore, moved the court for leave to amend his petition, so as to make it conform to the proof in his power. The court granted this motion upon terms, which were that the plaintiff should pay all the costs already incurred, except the costs of the commencement of the suit. The plaintiff declined amending on those terms, and excepted to the decision of the court in refusing the leave to amend on other than the ordinary terms. The plaintiff then took a non-suit. He filed his motion to set aside this non-suit, which being overruled, he excepted, and brings the case here by appeal.

The words charged in the plaintiff's petition as having been spoken of him by the defendant are: “I (meaning the defendant himself) was summoned as a grand juror at last court, but I got the court to excuse me from serving; for, if I had served, I would have been bound to have indicted William D. Street for theft;” then and there meaning, and was so understood to mean, by Mathew Arbuckle and others, that he, William D. Street, the plaintiff, had been guilty of larceny.

In the second count the words are thus charged: “I (meaning the defendant) got myself excused from serving on the grand jury at the last term of the Henry Circuit Court (meaning the May term thereof, in the year 1855), for, if I had served as a grand juror, I would have been bound to have indicted William D. Street for theft;” thereby then and there meaning, and was so understood to mean, by John H. Edmonson and others, that William D. Street, plaintiff, had been guilty of the crime of larceny.

The words proved were, defendant said: “If he had served on the grand jury, he would have been bound to have indicted Mr. Street, the plaintiff.” Witness asked defendant what Mr. Street had been doing; he (defendant) said he (Street) had been getting or taking goods from his store without accounting for them. Witness observed to defendant that it was a very serious charge, and he ought not to say any thing about it, unless he could prove it; he replied that he could prove every thing he said about it. Witness understood him to mean every thing he had said to witness. Another witness said he heard defendant say he was summoned on the grand jury and did not serve. He (defendant) stated he would not have served on that jury for fifty dollars. Witness asked him why; he said: “If he had done it, he would have been bound to present Mr. Street.” Witness asked him for what; he stated that he (Street) “had taken or gotten things out of the house for which he had not accounted.” Witness thinks that he did not state at the time for what offense he would have had to indict him. This witness also stated that at another time defendant stated to this witness “that he would not have served on that jury for five hundred dollars; if he had he would have had to have his brother and Mr. Huston summoned before the grand jury for the purpose of establishing the fact that he (Street) had taken things out of his store for which he had not accounted.” Defendant referred to things he said plaintiff had taken and for which he had not charged himself; he named some calico, five yards of domestic and it may be some other things, plaintiff had taken and for which he had not charged himself; he never said he had stolen it. Defendant said that the plaintiff had got some things out of his store, and mentioned different things. Plaintiff had been clerk in the defendant's store, and at various times had taken things and omitted to charge himself with them. He said plaintiff had got...