186 Mo. App. 107 | Mo. Ct. App. | 1914
— -This is a suit for damages said to have accrued on account of an alleged slander. The court sustained defendant’s motion to make the petition more definite and certain and this he declined to do. Thereupon the court dismissed the case and plaintiff prosecutes the appeal.
The petition is as follows:
“Plaintiff in this, his amended petition, leave to file the same being first had and obtained, for his cause of action, states that the defendant on or about the 6th day of January, 1911, at the city of St. Louis, Missouri, wilfully, wantonly and maliciously spoke of and concerning plaintiff in the presence and hearing of divers persons, certain false, defamatory and slanderous words, to-wit: ‘Pie’ (meaning plaintiff) ‘is a thief, a rascal, a scoundrel, a damned hound,’ thereby charging and intending to charge plaintiff of the crime of larceny and of dishonesty whereby plaintiff has
Defendant’s motion so sustained by the court, requiring the petition to be made more definite and certain, invoked an order that plaintiff be compelled to state the names of the persons to whom, or in whose presence, the slanderous words were uttered; also the circumstances under which defendant spoke the alleged slanderous words and the place where the same were spoken. So much of the alleged slander above set forth as charges plaintiff with being a thief is, of course, slanderous per se. [See Bridgman v. Armer, 57 Mo. App. 528; Johnson v. Dicken, 25 Mo. 580.] It appears from the context of the words used and as set out in the petition that they all form a part of one conversation in which defendant charged plaintiff with being a thief.
Our statute (Sec. 1837, R. S. 1909) provides as follows: “In an action for libel or slander, it shall not he necessary to state in the petition any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation he not controverted in the answer, it shall not be necessary to prove it on the trial; in other cases it shall be necessary.”
Under this statute it has been expressly decided that it is not necessary for plaintiff to set forth the names of the persons in whose presence the words were uttered, or that they were understood by those present. [See Atwinger v. Fellner, 46 Mo. 276; see also Guard v. Risk, 11 Ind. 156.] It is true in both of the eases cited the question was presented after verdict on the petition, but the rule is declared the same where the slanderous words are actionable per
Touching the matter of requiring the petition to be made more definite and certain by stating the- place where the slanderous words were spoken, the averment seems to be sufficient, for it is expressly alleged the slander was uttered at the city of St. Louis, Missouri, and the date is given as on January 6, 1911. This will suffice. [See Dent v. Ryan, 8 N. Y. Supp. 806,]
The requirement that the petition be made more definite and certain by setting forth the circumstances under which defendant spoke the alleged slanderous words, not only in a measure impinges the spirit of the statute above quoted, which provides that it shall not be necessary to set forth any extrinsic facts for the purpose of showing the application to plaintiff of the defamatory matter, but seems more particularly to run counter to section 1818, Revised Statutes 1909, which provides that no party shall be required to state evidence in his pleading.
We regard the petition sufficiently definite, when considered in connection with the statutes touching the subject-matter, and the motion to make more specific should have been overruled.
The authorities apparently holding a contrary view on the question in judgment are not persuasive here, for they proceed on a statute requiring a bill of particulars in every case .when it is called for in order to advise the party, as was ruled in Tilton v. Beecher, 59 N. Y. 176, and see its application in Stiebeling v. Lockhaus, 21 Hun (N. Y.) 457. We have no such statute in this State and the rule flowing from it is without influence.