159 Mo. App. 664 | Mo. Ct. App. | 1911
This is a suit for damages said to have accrued to plaintiff on account of an alleged slander spoken of and concerning him by defendant. The process of attachment is invoked in aid of the principal case and as the finding and judgment on both the attachment and suit on the merits were for plaintiff, the appeal by defendant under our statute (Sec. 2335, R. S. 1909), presents both matters for consideration.
We will first dispose of the questions arising on the trial of the attachment, and afterwards consider the appeal with respect to the merits, or the main case.
By his affidavit for attachment, plaintiff avers four separate grounds therefor. The two first of these predicate npon the twelfth subdivision of section 2294, Revised Statutes 1909, pertaining to attachments, and state that the damages for which the action is brought accrued on account of injuries arising from the commission of a misdemeanor by defendant, while the other two grounds predicate upon the seventh and eighth subdivision of the same statute. One of them goes to the effect, substantially, that defendant has fraudulently conveyed his property so as to hinder or delay his creditors, and the other that defendant has fraudulently concealed, removed or disposed of his property
To substantiate the charge that defendant spoke of and concerning plaintiff the words ‘ ‘that he forged that deed” in the presence and hearing of J. F. Gordon, plaintiff placed three witnesses upon the stand. Two of them wholly failed to substantiate a single word of the charge as laid. Their evidence is so utterly insufficient as even tending to prove the charge laid, as to render it unnecessary to comment upon it here. The third witness, Mr. Gordon, said he. heard a conversation between defendant and one Mal H. Powell about the deed mentioned when they were looking over the deed record in the recorder’s office at New Madrid, Missouri, and that one of them denounced the deed as a forgery. When this witness was asked who made this statement, he answered: “Well, I don’t know, the statements were mixed up between Mr. Fenn and Mrs. Powell and I can’t say just who made the statement.” Further on in the examination, of this witness, he relates the entire conversation in which it is alleged the defendant spoke the slander complained of: “Q. Well, what was the conversation? A. Well, as well as I remember, the conversation came up— they were examining the records and they were looking for a deed, I believe, to Mr. Fenn, and run across this deed, and he turned around and says to Mrs.
The second ground of attachment predicates as well upon the twelfth subdivision of section 2294, Revised Statutes 1909. The twelfth subdivision referred to authorizes an attachment “Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or for the seduction of any female.” It is to be noted that, as precedent to sustaining the attachment on this
The petition in the main case on its merits, as it stands now and as it was at the trial, consists of two counts. The first seeks a recovery of $5000 actual damages and $50,000 punitive damages on account of several alleged slanders set forth therein, and the second seeks a recovery of $5000 damages on account of the conspiracy referred to.
The second count of the petition relating to the conspiracy mentioned is as follows: ‘ ‘ Second. Plaintiff for another and separate cause of action states that on the 10th day of June, 1903, he acquired from one M. H. Powell a life tenancy in and to certain lands in New Madrid county, as appear from said deed, which wa,s on the date aforesaid made, executed and delivered. That afterwards the defendant did enter into a conspiracy with her, the said M. H. Powell and with others to this plaintiff unknown, for the purpose of defrauding him, the said J. Y. Conran, in his property rights in and to said property, and for the purpose of
It is obvious this count of tbe petition states no cause of action for malicious prosecution, and, indeed, it is not claimed that it does. Neither does it state a ■cause of action for damages on account of a false arrest, and though it is said therein several slanders were uttered of and concerning tbe plaintiff, it does not purport to set forth a cause of action for slander,
The third ground of attachment set forth in the affidavit is that contemplated in the seventh subdivision of section -2294 on attachments, for it is averred therein that the defendant had fraudulently conveyed or assigned his property or effects so as to hinder and delay his creditors. The suit was instituted on May 21, 1906, and there is evidence that defendant, in March theretofore, conveyed to Hunter certain lands owned by him in New Madrid county. It is shown, too; that defendant was indebted at that time. This proof, together with other facts and circumstances in evidence, tended to support this ground for the attachment and the question was for the jury. But the court received in evidence as well, in support of this ground, a deed executed by defendant to one Frank Ferrell, which conveyed certain lands owned by defendant in New Madrid county to Ferrell. This deed, it appears, was dated May 23, 1906 or two days after the attachment was sued out. Under this, the seventh ground of attachment, the deed referred to was improperly admitted, for the allegation is, that defend
The same error with respect to the same deed occurred, too, in instruction No. 5, given on behalf of plaintiff. This instruction is as follows: “The court instructs the jury that if they believe and find from the evidence that the defendant on the 21st day of May, 1906, had conveyed his property in a deed executed by him to Shap R. Hunter, Sr., and a deed executed by him to Frank Ferrell with the intent to hinder or delay his creditors, and that if they further find from the evidence that the object or effect of the execution of the instruments conveying the aforesaid property was to defraud or hinder or delay plaintiff or any of defendant’s creditors, then the finding should be for the plaintiff, and the attachment should be sustained as to both counts in plaintiff’s petition upon which the attachment was sued out.” The instruction permitted the jury to find defendant had conveyed his property on May 21st to Ferrell with intent to hinder or delay his creditors, when there is no proof whatever to that effect. Instead, the proof as to this deed is conclusive that it was not executed until two days after the attachment was filed. Furthermore, this instruction is erroneous, for, though it requires the, jury to find defendant conveyed his property with intent to hinder or delay his creditors, as was proper enough, it directs that if the jury further found from the evidence that “the object or effect” of executing the deeds mentioned was to defraud, hinder or delay plaintiff’s creditors, then the finding should be for plaintiff. This incorporates an erroneous conception with respect to the seventh subdivision of the attachment statute, for
The fourth ground for attachment incorporated in the affidavit is that which is contemplated by the eighth subdivision of the statute (sec. 2294, R. S. 1909), for the affidavit avers that defendant has fraudulently concealed, removed, and disposed of his property or effects so as to hinder or delay his creditors. There is not a scintilla of proof in the case that defendant concealed or removed any of his property and the entire subject-matter in decision with respect to this ground of attachment turns on the words “disposed of his property.” The only evidence whatever tend-’ ing to prove that defendant disposed of any property for any purpose is that above mentioned pertaining to the conveyance of some of his lands to Hunter and some to Ferrell. The court nevertheless submitted this matter to the jury as though such conveyance tended to support the allegation. This was error, for it has been pointedly decided that the word “disposed,” as used in this subdivision of the statute, was not intended by the legislature to cover such conveyances or alienations of property. It is said no two of the fourteen separate specifications for grounds of attachment set forth in the statute contemplate the same subject-matter and that the seventh subdivision alone relates to conveyances such as are revealed in the evidence here. The case of Bullene v. Smith, 73 Mo. 151 is directly in point and it is therefore unnecessary to elaborate. For the reasoning of the court, reference is made to that case. The court erred in submitting the fourth ground of attachment to the jury, for under the authority cited, there was no proof
On the Merits.
We come now to consider the appeal from the finding and judgment on the merits, or the main case. As before stated, the petition is in three counts, the third of which declares upon a malicious prosecution, but this count was dismissed at the trial and will not be further noticed. The second count declares upon a conspiracy and is above set forth in connection with the second ground on which the attachment was sued out in aid of it. We have considered this count of the petition. It appears to state no cause of action and will not be further noticed.
There remains, then, but one count of the petition, which is the first. That count presents a jumble of slanders, commingled, which, it is averred, defendant spoke of and concerning plaintiff. It does not appear from the petition that these various statements were made at different times and in the presence of different persons, in different localities, but the proof reveals such to be the fact, if the statements' were made at all. We believe there is some evidence tending to prove some of the statements attributed to defendant of and concerning plaintiff in this count of the petition and the subject-matter may be for the jury. It is unnecessary to discuss or elaborate this count, for that a petition setting out in one count, as this one does, a number of separate slanders, spoken at different times, in different places, to different persons, is bad pleading goes without saying. [See Flowers v. Smith, 214 Mo. 98, 112 S. W. 499.] No doubt the petition may be amended, however, if plaintiff is so advised.
Among other things, the first count of the petition charges as one of the slanders uttered that defendant
By the second instruction for plaintiff, the court submitted all of these different statements made to different persons at different times and places to the jury for a finding, as if they were all made at the same time and place and in the presence of the numerous parties therein named. The proof is, defendant used some of the language alleged in New Madrid county, some at one place in St. Louis and some at another in St. Louis, at different times and to different persons. Notwithstanding this, all of these words are submitted by the second instruction as if they were all statements made at the same time, in the same place and to the same persons, while each separate statement made at different times, to different persons must be regarded as a separate slander, giving rise to a separate cause of action, if a slander at all. The second instruction referred to is as follows: “The court instructs the jury, that if the said J. V. Conran, plaintiff herein, after the execution by Mal H. Powell of the quitclaim deed dated June 10, 1903, conveying real estate to him, the said J. V. Conran, in New Madrid county, Missouri, executed before Lulu R. Colvin, notary public, in and for the City of St. Louis, did, after the execution and delivery of said deed to him, the said J. V. Conran, with the intent to defraud her, the said Mal PI. Powell, remove from said deed, a consideration written in the deed at the time of its execution and delivery to him, the said J. V. Conran, and then wrote in a consideration different from that originally written in the deed, then he, the said J. V. Conran, was guilty of forgery; and the court further instructs that if you believe and find from the evidence that the defendant at any time within two years next
Though plaintiff is a member of the bar and appears to have been aided at the trial by other counsel, we have not been favored with a brief for him. As a result of his omission to brief the case and contribute ■something toward analyzing the record in support of the judgment, considerable labor has been entailed •.upon us. Probably the numerous errors were intended to be confessed, but no statement to that effect has been made or filed. The record presents eight hundred and twenty-seven pages of printed matter and abounds with evidence which is both immaterial and incompetent. Besides the numerous errors we have pointed out, there are many others to be found therein touching the rulings of the court on the admission and rejection of evidence which of themselves are sufficient to operate a reversal of either the judgment sustaining the attachment or that on the merits. Upon a retrial, counsel should devote more pains to trying the case according to the established rules of law and less •energy to introducing immaterial matters into the record.
For the errors above pointed out, the judgment x>n the merits will be reversed and the cause remanded. It is so ordered with respect to both judgments.