26 Mo. 153 | Mo. | 1858
delivered the opinion of the court.
The amended petition on which the case was tried is as follows: “ Plaintiff states that on the 16th day of July, 1849, at Clay county, in the state of Missouri, the defendant (who is not a resident of said state) spoke the following false and slanderous words concerning the plaintiff: ‘ I wonder when
The only evidence offerejd by the plaintiff for the purpose of proving the speaking of the words, was the testimony of James N. Burns and John Terrill. The material part of Mr. Burns’ statement is as follows: “ I was in Platte City on the
It will be observed that the venue of the conversation in which the plaintiff was charged with “ keeping his own negro wench” was laid at Platte City, and only one of the witnesses testifies to any thing that was said at that place, and he does not undertake to give the defendant’s language, but only his impression of the substance of it.
The petition contains four sets of words, and though the court subdivided it into four counts, it contains only one; but this subdivision, though technically incorrect, was a convenient mode of distinguishing the sets of words claimed to be .actionable. The first and third are that the plaintiff had ■whipped his wife, and imputed the offence of assault and
It is evident from these two instructions, the one given and the other refused, that the case was put to the jury on the idea that words are actionable of themselves, which charge a man with having whipped his wife. In this there was error, for, though there is no act which is more disgraceful or cowardly, and no offence for which a man ought more promptly to be branded with shame, yet there is no action for such slander without the allegation and proof of special damage.
The law engages not only to guard the property and personal security of individuals, but their good name and reputation ; and “ where a man has a temporal loss or damage .by the wrong of another, he shall have an action on the case to be repaired in damages.” In every case where a person suffers loss by the malicious defamation of another, he may have an action; and in many instances, as the immediate tendency of the slander is to produce injury, the law considers the speaking of words that impute particular offences as injurious ; and, presuming that the person whose character is assailed is damaged, confers the right of action without requiring the allegation or proof of special loss. Such words
Various rules have been laid down by different courts, by which they undertake to determine what words are or are not actionable ; and though the adjudged cases have not agreed on a uniform rule, they generally concur in holding that “ the actionable quality of words results not from the degree of discredit attached to the party, but to the penal nature of the offence imputed.” The rule in New York, which has been followed by several other states, is that words are actionable in themselves “ in case the charge, if true, would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment.” (Brooker v. Coffin, 5 John. 188.) This rule lacks certainty ; for the terms “ moral turpitude” and “ infamous” are of indefinite import, and men differ as to the quality of an act according to their own standard of morality. Some persons make no distinction between that which is malum prohibitum and malum in se, and regard every violation of law as immoral. It is indictable by our statute to sell liquor without a license by the glass. Some think that the selling of liquor at all is wrong, and that a violation of this law involves “ moral turpitude,” whilst others think that the business is honest and harmless, and that it is only improper to sell without a license, because the law prohibits it, and not because it is wrong in itself. It has also been held that words are actionable per se which impute a crime or misdemeanor that will subject the party charged to an indictment. This was an intelligible rule at common law; for an offence charged to be indictable implies that the punishment might be corporal, inasmuch as the lowest grade of punishment, even for a misdemeanor, was a fine or imprisonment, or both fine and imprisonment. But our statute has so much increased the number of indictable misdemeanors which are only punishable by fine, that this rule would be impracticable here. It would hardly be insisted in this state that it is actionable to say of a merchant
The third instruction given for the plaintiff was ambiguous and calculated to mislead the jury. It is as follows : “ The court further instructs the jury that the slanderous words charged as having been spoken by the defendant of the plaintiff in the fourth count in said petition are, ‘ all for keeping his own negro wench; defendant meaning thereby to charge, and being understood by those persons who heard him to charge, plaintiff with the scandalous crime of adultery with a negro woman.’ If the jury shall find from the evidence that the words proved to have been spoken by the defendant substantially correspond with those charged in the fourth count, and that defendant by the words meant, and was understood, to charge plaintiff with adultery with a negro woman, they must find a verdict for plaintiff upon that count.” The office of an innuendo is only to explain the defendant’s meaning, and the meaning as averred by an innuendo is a question of
It was objected on the trial, and the objection has been urged in this court, that there is a fatal variance between the allegations in the petition and the proof. This was a question exclusively for the court. (7 Mo. 324.)
Different courts have been more or less rigid in the application of the rules of law bearing on questions of variance in suits for slander, but this court has laid down an explicit rule, from which it has never departed, to our knowledge, and we see no reason why we should now. In Berry v. Dryden, 7 Mo. 334, when two of the present members of this court were on the bench, the opinion delivered by Judge Scott stated the law on this subject as follows: “ The rule is stated in the books that the slander proved must substantially correspond with that charged in the declaration. By this it is not to be understood, that if certain words are employed to convey a slanderous imputation, these words will support a declaration containing the same imputation in different words. The meaning of the rule seems to be, that if the words charged to have been spoken are proved, but with the omission or addition of others not at all varying or affecting their sense, the variance will not be regarded. Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance an action can not be maintained; and, although the same idea is conveyed in the words charged and those proved, yet, if they are not substantially the same words, though they contain the sanie charge but in different phraseology, the plaintiff is not entitled to recover.” The authorities fully sustain this decision. It has long been settled that the declaration must profess to set out the very words, and that it is not sufficient to describe them by their sense, substance and effect (1 Stark. 362); and though it is not necessary to prove all the words, some of them must be proved as laid (ib. 369) ; and if all the words as laid constituted but one charge, the whole must be proved. (Ib. 374.)
the judgment will be reversed and the cause remanded.