Vaughn v. May

• Decision Date: 01 July 1925
• Citation: 274 S.W. 969,217 Mo.App. 613
• Parties: TOM VAUGHN, by Next Friend, Respondent, v. CHARLES MAY, Appellant.
• Court: Missouri Court of Appeals

274 S.W. 969

217 Mo.App. 613

TOM VAUGHN, by Next Friend, Respondent, v. CHARLES MAY, Appellant.

Court of Appeals of Missouri, Springfield

July 1, 1925

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Frank Sea, of Bolivar, Addison Brown, of Springfield, and Barbour & McDavid, of Springfield, for appellant.

(A) Plaintiff's petition does not state a cause of action and the court erred in overruling defendant's objection made at the beginning of the trial to the introduction of any evidence on the part of the plaintiff. There was no allegation in the plaintiff's petition to the effect that plaintiff had no interest in defendant's property that was alleged to have been painted. That necessary, constituent element of the crime of malicious mischief was omitted and the omission cannot be implied from what is stated and the defeat cured by verdict. McKim v. Moore, 291 Mo 697. According to the law of Missouri as announced by its Supreme Court to render words actionable per se they must impute the commission of crime. Lacking this essential element the petition must contain preliminary averments designated as a colloquium charging the existence of such facts as will render the words actionable per se. Ibid. The words "It was Tommie Vaughn who done the painting" are not actionable per se because they do not within themselves impute the commission of a crime and as they lack that essential element the petition should have contained preliminary averments designated as a colloquium charging the existence of such facts as will render the words actionable per se. Where there is a statutory definition of a crime detailing what facts constitute the crime it is necessary to set out that all of the constitutive facts were present in the instant case or the allegations fall short of charging the crime. Parsons v. Henry, 177 Mo.App. 329. (B) The alleged crime of malicious mischief, which the plaintiff calls malicious trespass, does not involve either moral turpitude or subject the guilty party to infamous punishment on which account the alleged charging of the commission of the crime of malicious mischief does not constitute actionable slander. The law in such cases is as follows: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be actionable in themselves and this text has been accepted and applied so often and so generally that it may be accepted as settled law." Cooley on Torts, Third Edition, pages 377-8. While it is true that there is some obiter dictum in some of the decisions of the courts of this State which apparently hold the contrary, the law in this State is nevertheless the same as above announced. This court in deciding the case of Caffey v. Moffatt, 246 S.W. 52, announced the law as follows: Words to be actionable when spoken of a person not in any office, trade or profession must imply the imputation of an offense which would subject the offender to some infamous crime and defamatory words falsely spoken of a person which are not slanderous per se only become actionable when special damage is pleaded and proved. The following decisions are to the same effect. Nelson v. Musgrave, 10 Mo. 648; Curry v. Collins, 37 Mo. 324-328. The Supreme Court in the case of Birch v. Benton, 26 Mo. 153, held that it wasn't actionable slander to charge a man with whipping his wife, the crime of assault and battery. The same court held in the case of Speaker v. McKinsey, 26 Mo. 254, that it was not actionable slander to charge a man with whipping his mother, the crime of assault and battery. In the later case of Curry v. Collins, supra, the court held that in an action for slander there should have been some averments by way of inducement, for the purpose of showing that the word "bushwhacker" was used in a sense that would impute to the plaintiff some indictable offense involving moral turpitude or some infamous corporal punishment. Section 3383, Revised Statutes of Missouri, 1919, sets out the constitutive facts that are required to be shown in order for it to appear that one is guilty of the crime of malicious mischief, one of which facts required to be shown is that the party has no interest in the property. Furthermore it is required that the action be "wilfully" done and there is no such allegation in the plaintiff's petition. Section 3612, Revised Statutes of Missouri 1919, defines crimes involving moral turpitude or infamous punishment. Since there was no allegation of having no interest in the property, which was indispensable, plaintiff's petition did not state a cause of action. In view of the fact that the alleged offense did not involve moral turpitude or infamous punishment the plaintiff's petition did not state a cause of action. (2) Plaintiff's Instruction No. 1 is erroneous for the reason that it authorizes a verdict if the jury believe from the words used that the defendant intended to and did charge the plaintiff with having been guilty of the crime of malicious trespass. There is no such crime as malicious trespass either at common law or under the statutes of Missouri, and the error of using a term which is named a crime in an instruction which is in fact not the name of any crime cannot be cured by some definition instruction. As the plaintiff's sole defense was that he did not use the words charged to have been used but used other words of a different import and that he did not allege as a defense that the words charged to have been used were true, it was error for the court to include in the first instruction "and if you find that said language was false and untrue" for that was an instruction on an issue not in the case. Plaintiff's instruction No. 1 is erroneous for the reason that it did not require the jury to find that the plaintiff used the words "It was Tommie Vaughn who done the painting." It limited the necessary finding to "substantially the same words." The law requires the jury to find that the exact words were used. Haynes v. Robertson, 175 S.W. 292; Spillman v. Freymann, 246 S.W. 978-9; Hauser v. Stiggers, 137 Mo.App. 560. The use of "or substantially those words" in defendant's Instruction A will not cure the defect above mentioned for the reason that Instruction A specifically states "and proof that he uttered equivalent words or words of similar import will not do."

Roscoe Patterson, of Springfield, J. M. Leavitt, and Herman Pufahl, both of Bolivar, for respondent.

(1) There is nothing before this court except the record proper and the judgment of the trial court should be affirmed, for the reason that there is no error in the record proper. We insist that in this case neither what appellant has seen fit to call his "record proper," nor what he has seen fit to call his "bill of exceptions," show that any bill of exceptions was ever signed or filed. Appellant must serve respondent with his abstract thirty days before the case is set for hearing and in like time file eight copies with the clerk. The abstract so served is the only one which can be considered. Maupin v. Western Union Tel. Co., 162 Mo.App. 711; Hodson v. McAnerey, 167 Mo.App. 468; Tharp v. C. B. & Q. R. R., 157 Mo.App. 495; Smith v. Russell, 171, Mo.App. 324; Clark v. Clark, 191 Mo.App. 278; State ex rel. Hackett v. Slay, 180 Mo.App. 379; Fleming v. Meals and Grimes, 192 Mo.App. 38; Harris v. Wilson et al., 199 Mo. 412; Clay v. Union Wholesale Pub. Co., 200 Mo. 665, 673; Harding v. Bedol, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442, 449; Pennowfsky v. Coerver, 205 Mo. 135, 136; Langstaff v. City of Webster Groves, 246 Mo. 223; Dalton v. A. L. Register & Co., 248 Mo. 150; Case v. Carland, 264 Mo. 463. (2) Appellant will not be permitted to amend his abstract after he has served it on respondent, without consent of respondent. Cuomo v. City of St. Joseph, 24 Mo.App. 567; Bank v. Davison, 40 Mo.App. 421; Hoffman v. Louden, 96 Mo.App. 184, 188; Tharp v. C. B. & Q. R. R. Co., 157 Mo.App. 495, 502; Hopper v. Fulbright, 174 Mo.App. 499; Everett v. Butler, 192 Mo. 564, 569; Hardin v. Bedol, 202 Mo. 625, 636; Nickey v. Leader, 235 Mo. 30, 36; Mahaffy v. Lebanon Cemetery Association, 253 Mo. 135, 142. (3) Plaintiff's petition states the cause of action. If the words spoken impute a crime or an indictable offense, then they are actionable per se, and it is not necessary to prove special damages. Nelson v. Musgrave, 10 Mo. 648, 649; Birch v. Benton, 26 Mo. 153, 159, 160; Callahan v. Ingram, 122 Mo. 355, 368; Bridgman v. Armer, 57 Mo.App. 528, 533; Jones v. Barmer, 172 Mo.App. 132, 137; Boyce v. Wheeler, 197 Mo.App. 295, 304 and 305 and 306; McCimm v. Moore, 237 S.W. 773, s. c. 291 Mo. 697; Caffey v. Moffatt, 246 S.W. 51. Defendant did not file a demurrer to the petition, nor move to strike out any part thereof, but contented himself with filing a general denial and for the first time attacked the petition by "objection to any evidence." This practice has been repeatedly condemned by all the appellate courts of this State. (4) It was a "crime" to paint the door or window of defendant's store, or garage with yellow paint. Section 3383 provides: Every person who shall willfully, and maliciously destroy or injure the door or window of any dwelling house, shop, store or other house or building shall be guilty of a misdemeanor. So, too, was it a crime to paint defendant's truck with yellow paint. Section 3385, R. S. 1919, provides: Every person who shall willfully destroy or injure any goods, wares merchandise or other personal property of another shall be deemed guilty of a misdemeanor. Section 3417 provides that: Every person who shall be convicted of a...