McManus v. Jackson, 28 Mo. 56

McManus v. Jackson

28 Mo. 56 | Mo. | 1859

Riohardson, Judge,

delivered the opinion of the court.

When the slanderous words used in the petition are actionable of themselves, it is not necessary to make any prefatory averments as to the circumstances to which they refer; but if the words do not per se convey the meaning which the plaintiff would assign to them, the petition must contain a statement of the extrinsic matter necessary to show that they are actionable, and whatever is necessary to be stated for that purpose must be proved. (1 Chitty Plead. 429 ; 2 Greenl. Ev. § 413 ; 1 Stark. Ev. 460.)

It is well settled that it is not actionable to charge a per*59son with swearing a lie, unless the petition shows that the speaking of the offensive words had reference to a judicial proceeding. (Harris v. Woody, 9 Mo. 112.) The reason is that the words standing alone do not impute a crime, for a man may swear falsely without even having taken an oath in any court or before any officer authorized to administer one. Such words however may be rendered actionable, if by way of inducement it is set out that there had been a trial or other proceeding in which the plaintiff was sworn as a witness, and that the defendant in using the offensive words referred to such matter and intended to charge the plaintiff with the crime of perjury. The decision in Puselly v. Bacon, 20 Mo. 330, is not in conflict with this well established rule, because, as it was held that the words in that case were actionable per se, a prefatory statement of extrinsic facts was unnecessary.

The plaintiff in the first count of the amended petition recognized the propriety of connecting the slanderous words with other matter to show their point, but he omitted to aver that the plaintiff had been sworn as a witness, and in that respect he failed to state a fact material to a cause of action.

The second count is defective because it is not averred that the negro was a slave, to whom the plaintiff was charged with having given a free pass; and though the third count alleges that the defendant intended to charge the plaintiff with having given a free pass to a slave, it omits to state that the slave did not belong to the plaintiff.

At common law, when it did not appear, from the words themselves, to whom they were intended to apply, it was necessary by the aid of a colloquium to show that they applied to the plaintiff. But this rule has been changed by our statute, which declares that “ in an action for libel or slander, it shall not be 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 *60if such allegation be not controverted in the answer it shall not be necessary to prove it on the trial; in other cases it shall be necessary.” (R. C. 1855, p. 1240, § 55.) That section has however a limited operation, for though it dispenses with the necessity of showing by extrinsic facts the application of the words to the plaintiff, it is still necessary when the words are not actionable, to show their meaning by proper averments in the inducement. (5 How. Pract. 174; 6 id. 99 ; Fry v. Bennett, 5 Sand. 54.) The demurrer was properly sustained and the judgment will be affirmed;

Judge. Scott concurs. Judge Napton absent.