Vaugn v. May
| Decision Date | 01 July 1925 |
| Docket Number | No. 3686.,3686. |
| Citation | 274 S.W. 969 |
| Parties | VAUGHN v. MAY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by Tom Vaughn, by next friend, against Charles May. From a verdict for plaintiff, defendant appeals. Reversed and remanded.
Frank Sea, of Bolivar, and Addison Brown and Barbour & McDavid, all of Springfield, for appellant.
Roscoe Patterson, of Springfield, and J. M. Leavitt and Herman Pufahl, both of Bolivar, for respondent.
Plaintiff filed his petition in Polk county to recover damages for an alleged slander. The venue was changed to Greene county, where a trial was had before the court and a jury, resulting in a judgment in favor of plaintiff for $1,000, from which defendant appealed.
During" the world war defendant's son was inducted into the service. Because of physical infirmities of the son, defendant diligently sought his discharge, and was finally successful. Defendant's activities and the son's discharge aroused some feeling and resentinent. Finally, on a night in July, 1922, defendant's store windows, store front, garage door, and truck were smeared with yellow paint. Defendant was indignant, and endeavored to ascertain who was responsible for the painting. It is alleged that defendant, having reference to the painting and to plaintiff, said, in the presence of others: "It was Tommy Vaughn who done the painting." It is contended that the act of painting defendant's property in the manner charged constituted the crime of malicious mischief under section 3383, R. S. 1919, and that defendant's words, supra, spoken of and concerning plaintiff, and under the circumstances obtaining, charged plaintiff with the crime of malicious mischief, and therefore constituted actionable slander. The answer is a general denial.
Error is predicated on the petition, the sufficiency of the evidence, and on the instructions. At the beginning of the trial defendant objected to the introduction of any evidence on the ground that the petition failed to state a cause of action, was overruled, and saved his exception. In this manner of challenge every intendment will be indulged in favor of the petition after verdict. Defendant bottomed his ore tenus demurrer on two grounds: First, that the words alleged to have been spoken by him do not per se charge a crime, and that the petition does not contain the required colloquium; and second, that there is no allegation that plaintiff had no interest in the property alleged to have been painted. After alleging the words claimed to have been spoken by defendant and in whose presence spoken, plaintiff alleged as follows:
"Plaintiff further states that the defendant, by said language, intended to and did charge this plaintiff with having committed crimes in this, that he intended to and did charge that plaintiff painted defendant's store front, store windows, garage door, and truck with yellow paint, and thereby injured and destroyed said property, and thereby committed malicious trespass, * * * and plaintiff states that the said language was so understood by the said W. B. Palmer and L. A. Munshower and divers other persons, and that defendant intended by said language to charge plaintiff with being a violator of the law and a law breaker and a criminal, and that said-language was so understood by the said W. B. Palmer and L. A. Munshower and said divers other persons at the time."
We think the petition is good against the complaint that there is not sufficient extrinsic averments showing the slanderous character of the language when applied to plaintiff. Parsons v. Henry, 177 Mo. App. 329, 164 S. W. 241.
The petition does not charge that plaintiff had no interest in the property painted. An indictment or information for malicious mischief, under section 3383, R. S. 1919, which fails to allege that the defendant had no interest in the property, is fatally defective. State v. Crenshaw, 41 Mo. App. 24. Failure to allege that the defendant had no interest in timber cut and carried away precludes the assessment of treble damages under section 4242, R. S. 1919. O'Bannon v. Railroad, 111 Mo. App. 202, 85 S. W. 603; Mishler Lumber Co. v. Craig, 112 Mo. App. 454, 87 S. W. 41. But we do not think that plaintiff's petition is so lamed by the failure to allege a lack of interest on the part of plaintiff in the property painted as to render it vulnerable to a demurrer ore tenus. The petition charges that some person or persons painted "the store windows, store front, garage door, and truck of defendant." The petition further charges that "defendant, on the next day after his property had been painted as aforesaid," etc. The petition goes on and charges that defendant imputed to plaintiff the crime of malicious mischief. The expressions "property of defendant," "his property," "malicious mischief," as used in the petition, would indicate that plaintiff had no interest in the property painted. Indeed defendant could not by any language charge plaintiff with the crime of malicious mischief for painting the property, if plaintiff had an interest in the property. After verdict absent any challenge except an ore tenus demurrer, every intendment is invoked in favor of the petition. When plaintiff's petition is measured by this well known rule, we do not think it fatally defective. Where omitted allegations may be implied from the allegations made in the petition, then the defect of omission is cured after verdict. Powell v. Rawson Land Co. (Mo. App.) 221 S. W. 765; Shaler v. Van Wormer, 33 Mo. 386; Keaton v. Keaton, 74 Mo. App. 174; Wicecarver v. Insurance Co., 137 Mo. App. 227 117 S. W. 698; People's Bank v. Scalzo, 127 Mo. 164, 29 S. W. 1032; Robinson v. Levy, 217 Mo. 498, 117 S. W. 577; Reineman v. Larkin, 222 Mo. 157, 121 S. W. 307.
Defendant contends that the evidence is not sufficient to support a judgment, and that his requested instruction in the nature of a demurrer should have been given. The demurrer is predicated upon three propositions: First, that there was no injury to defendant's property shown, and no crime committed, and therefore no crime imputed by the language alleged to have been used by defendant; second, that in order to constitute actionable slander the crime charged must be within the scope of the acts denounced by section 3612, R. S. 1919; third, that there was no evidence that any one understood that, by the language used, or alleged "to have been used, defendant charged or imputed to plaintiff the offense of malicious mischief.
The first contention that there was no material injury shown is founded upon the language of section 3383, R. S. 1919. If the painting of defendant's property was not a crime, then, of course, he did not charge plaintiff with a crime. The evidence shows that the property was smeared with yellow paint. Section 3383 makes it a misdemeanor, the punishment for which may be a fine or imprisonment in the county jail, to "willfully and maliciously break, destroy, or injure the door or window of * * * any store," etc. Defendant contends that the painting neither materially injured nor destroyed, and that no crime was committed. Did the painting injure the property as that term is used in section 3383? In Mitchell v. State (Tex. Cr. App.) 62 S. W. 572, defendant was charged under a malicious mischief statute with unlawfully and willfully injuring a public school "building. The following definition of injure was there approved:
"The word `injure,' as used herein and meant by law, is an injury which would render said building less agreeable, useful, or comfortable for the purpose for which it was intended."
We think that this definition is correct, and adopt it as the meaning of the word injure in our statute (section 3383). Applying this definition of injure, it is our opinion that smearing defendant's property with yellow paint as shown by the evidence was a misdemeanor under section 3383.
In order to constitute actionable slander in charging one with the commission of a crime, is it essential that the crime charged must be one denounced "by section 3612, R. S. 1919? Section 3612 reads as follows:
"Every person who shall falsely and maliciously charge or accuse any female of incest, fornication, adultery or whoredom, by falsely speaking of and concerning such female, in the presence and hearing of any other person or persons, any false and slanderous words which shall impute to her any such offense, or who shall in like manner falsely and maliciously charge any person with incest, or the infamous crime against nature, or with any felony, the commission of which would subject such person to disfranchisement and other degrading penalties, shall be deemed guilty of a misdemeanor."
Section 3612 sets out those acts for which one may be prosecuted criminally for the offense of slander. There are many misdemeanors of which one might be falsely charged or accused, and yet have no redress against the accuser in a criminal prosecution. Plaintiff could not have successfully prosecuted defendant for charging him with having committed the offense of malicious mischief, because the offense of malicious mischief is not embraced within section 3612. We find no case in this state supporting defendant's contention respecting the point in hand. The courts, it seems, have ruled otherwise. Birch v. Benton, 26 Mo. 153; Curry v. Collins, 37 Mo. 324, loc. cit. 328; Bundy v. Hart, 46 Mo. loc. cit. 462, 2 Am. Rep. 525; Callahan v. Ingram, 122 Mo. 355, loc. cit. 368, 26 S. W. 1020, 43 Am. St. Rep. 583; Boyce v. Wheeler, 197 Mo. App. loc. cit. 303, 195 S. W. 84; Gaffey v. Moffatt (Mo. App.) 246 S. W. 51.
In Curry v. Collins, supra, the court uses the following language:
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