137 Mo. App. 560 | Mo. Ct. App. | 1909
(after stating the facts). — 1. One assignment of error is for failure to prove the slanderous words alleged in the petition, the allegation being, as we have stated, in two forms. There was proof defendant used the exact words the petition charges him with having used and in both forms. This proof was, of course, sufficient. It is true the witnesses did not all agree as to defendant’s exact phraseology and sometimes stated his language with immaterial variations. Nevertheless, the very words laid in the petition were sworn to by one or more witnesses, while others testified to what the books call “substantially the same words,” of which phrase a definition was given in Berry v. Dryden, 7 Mo. 324, that has since been adhered to by the courts. In discussing the evidence in said case in comparison with the slander laid in the petition, the court said no authority would be required to show the words proved to have been spoken were not substantially the same as those laid in the declaration; that the rule required the slander proved substantially to correspond with the one charged; but by this it was not to be understood “that if certain words are employed to convey a slanderous imputation, those, words will support a declaration containing the same imputation in different words. The
2. Complaint is made of the main instructions granted at plaintiff’s request for not requiring the jury to find the existence of the extrinsic facts averred in the petition, in order to render actionable the alleged slanderous words, which were not actionable per se. It is argued the circumstances needed to attach to the words spoken by defendant an accusation against plaintiff of the criminal offense of petit larceny, should have been found by the jury and the jury should have been required by the instructions to find them. This contention refers to the matter of inducement in the petition wherein plaintiff is alleged to have been a waiter in a cafe; that defendant, accompanied by a young lady, visited the cafe for the purpose of taking a meal and it became plaintiff’s duty as an employee to wait on them; that he did so, and after they had finished their meal, arisen from the table and while they were still in the cafe, a pocketbook with five dollars in it, alleged to be the property of defendant’s guest, was said by defendant to have been taken by plaintiff from the table at which defendant and his guest were served, etc. If there had been a dispute about these matters, it would have been necessary to submit the truth of the averments to the jury. Instead, the occurrence of the circumstances alleged in the petition was testified to by defendant himself. A court is not bound to make an issue of fact for the jury about a matter concerning which there is no controversy, but may assume the truth of it. [Van Natta v. Railroad, 133 Mo. 13.]
The judgment will be affirmed.