80 Mo. 367 | Mo. | 1883
This is an action for slander. The petition contains but one count, though it sets out several distinct causes of action. The first assignment of words spoken is: “You and your mob all swore to lies in the probate court at Macon in my suit against the estate. You and John, Lin and Martha all swore to a lie in that case.” The second averment is : “Your son Lin has no father. He never did have any. He don’t belong to the Christal family. He is not Stewart Christal’s child.” Third : “You tied horses on the railroad to get them killed, and you got the benefit of it, and you know you did.” Eourth : “You have been all over my place at night, and in my smokehouse pilfering'; you have been in my smoke-house a dozen times after night.” Fifth: “You let your husband starve to death for want of something to eat.” Sixth: “ You have took my pocket-book and money, and got it there in your bucket.” To all of which there was the o'eneral averment:
At the trial the defendant objected teethe introduction of any evidence, for the reasons that the petition did not state facts sufficient to constitute a cause of action, because it mingled in one and the same count several distinct causes of action, and because no damages are alleged in the petition, The court overruled the objection. Defendant then asked the court to exclude all testimony on the charge of perjury, for tying horses on the railroad track, and for starving plaintiff’s husband, for the reason that the charges are not so pleaded as to constitute any cause of action. This request the court likewise refused. The testimony and instructions in the case will, so far as may be needful, be noticed in the proper connection in the course of this opinion. The jury returned a verdict for plaintiff in the sum of $500, and judgment was rendered accordingly. From this judgment the defendant has appealed to this court.
I. The petition in this case is had pleading. It is true, as contended for by respondent, that the same slander may be stated many times, and in different forms in the same count. But I apprehend it will be found on examination of the cases, that the words or utterances thus grouped together in one count, after all, constitute but one substantive offense. The case of Pennington v. Meeks, 46 Mo. 217, referred to by counsel, related solely to one offense, the alleged stealing of a hog. So in the case of Birch v. Benton, 26 Mo. 153, there was really but one actionable speaking alleged, though in different phraseology. The only actionable words alleged were those charging the defendant with adultery. But this petition contains averments in the
The court below gave, on behalf of plaintiff the following instruction :
3. “If the jury believe from the evidence that the defendant, at the time and place and manner charged, spoke of and concerning plaintiff the following words : ‘Your son Lin has no father. He never did have any. He don’t belong to the Christal family. He is not Stewart Christal’s child,’ thereby intending to charge plaintiff with adultery. Or, ‘ You have been all over my place after night, and in my smoke-house pilfering. You have been in my smokehouse a dozen times after night.’ Or, You have took my pocket book and money, and have got it there in your bucket,’ intending at the time to charge plaintiff' with the crime of larceny, then the jury should find for the jfiaintiff and assess her damages at any sum not exceeding $5,000.”
The first of the charges, it is observed, is that of adultery. Are the facts stated sufficient to constitute the offense ? Section 2120, Revised Statutes, makes it actionable to publish falsely that any person has been guilty of adultery. The term “ adultery ” is employed in this statute in its common law sense or its ordinary acceptation. For the plaintiff', a woman, to be guilty of this offense she must have been married at the time. Abbott’s Law Lie., title “Adultery 1 Bouvier’s Lie., title “Adultery.” It is not averred in the petition that the plaintiff was a married woman at the time the child Lin was begotten, or at any other time, nor is there enough averred to legitimately authorize the inference. Unquestionably at common law there should have been a colloquium averring her coverture, or the birth of I he child in lawful wedlock. Has the statute in any wise obviated or modified the rule? Section 3552, Revised Stat-
II. Another charge made in the petition, and submitted by the court to the jury is : “ You have took my pocket-bo.ok and money, and have got it there in your bucket.” We do not think these words actionable per se, without some explanatory averment showing their application. If they were intended and understood to impute the crime of larceny, they would be actionable per se. But
This question is well considered in Andrews v. Woodmansee, 15 Wend. 232. The charge was forgery. The language, inter alia, was: “You have got a note with my handwriting to it. I never signed a note with Andrews. I never put my name to that note, nor gave him liberty to do it in God’s world.” The words were followed by appropriate innuendos. The declaration was held to be bad for the lack of the extrinsic explanatory matter. The court say: “ The conclusion does not follow from the words. Supposing them to be true, the defendant may still have authorized some third person to subscribe his name to the note, or if it be a forgery, the plaintiff may have passed it to Francher without any knowledge of that fact. If the words can be rendered actionable, it cannot be done without some further averment, either about the occasion or manner of speaking them, or the- intent with which they were uttered.” The doctrine of that case is affirmed in Curry v. Collins, supra. Aside from this, the words laid in the declaration in respect of the pocket-book and money, were' not sustained by the proof. The charge is: “ You have took my pocket-book and money,” etc. The testimony most approximating the language is that of the plaintiff herself. Her version is: “ You have got $35 or $40 in your bucket you have stole from me.” “Yes, you have got it right there in your bucket.” Manifestly these are not the actionable words laid, nor indeed, the substance of them. The offense proved may be equivalent to that alleged, but this is not sufficient. Though the charge be substantially the same, yet if in different phraseology it will not support the action. Berry v. Dryden, 7 Mo. 324; Birch v. Benton, supra, 161, 162. In
III. It is further assigned for error that the petition is radically defective in that it contains no ad damnum clause. Under the old system of pleading, it was perhaps, prerequisite to a judgment that the declaration should contain an allegation that the complainant had thereby been damaged, with a prayer for judgment therefor. Deveau v, Skidmore, 47 Conn. 19; Brownson v. Wallace, 4 Blatch. 465, But we incline to the opinion that under our code of practice, the petition in this respect is sufficient. Section 3511, Revised Statutes, requires, “ a plain and concise statement of the facts, etc., with a demand of the relief to which the plaintiff may suppose himself entitled.” The amount of damages is ascertainable from the facts alleged, and the plaintiff’s estimate of them appears from the prayer. This view is supported by Wait’s Practice, vol. 2, p. 387.
IV. The action of the court is complained of in the time of admitting certain testimony, and the character of the testimony. After the plaintiff had rested in chief, and the defendant had closed his testimony, under the semblance of evidence in rebuttal, the plaintiff was permitted to introduce several other witnesses, who testified to various conversations with the defendant, touching what he had said to the plaintiff’ at the time of uttering the alleged slanderous words. This was not admissible as matter in rebuttal. Evidence in rebuttal is such as tends to disprove “new points first opened by the defendant,” and should be accordingly so limited. Trial courts have a discretion in admitting evidence out of the regular order, and even after the case is announced closed on both sides. But this is not an arbitrary discretion. It is essentially judicial, not to be exercised except in the furtherance of justice, as where the party satisfies the court that the omission to introduce the evidence in its proper place and time is the result of mistake or oversight, and then to be admitted only where it will not work surprise and injustice to the opposite party.
V. In the fourth instruction given for plaintiff occurs the following: “ If the proof shows the addition or omission of words from those charged not at all varying or affect, ing the sense of those used in the petition then there is no variance.” This portion of the instruction should be omitted. It is calculated to mislead. Words may have the same sense with those used in the petition, yet not support the allegation of the petition. Berry v. Dryden, supra and Birch v. Benton, supra.
The judgment of the circuit court is reversed and the cause remanded for further proceedings in conformity with this opinion.