24 Mo. 328 | Mo. | 1857
delivered the opinion of the court.
This is an action'of slander, for words spoken of the plaintiff by the defendant. Upon the trial, the plaintiff failed to prove the words as he had charged them to have been spoken ; but proved words which he considered actionable. He therefore moved the court for leave to amend his petition, so as to make it conform to the proof in his power. The court granted this motion upon terms, which were that the plaintiff should
The words charged in the plaintiff’s petition as having been spoken of him by the defendant are, “ I (meaning the defendant himself) was summoned as a grand juror at last court, but I got the court to excuse me from serving; for, if I had served, I would have been bound to have indicted William D. Street for theftthen and there meaning, and was so understood to mean by Mathew Arhuckle and others, that he, William D. Street, the plaintiff, had been guilty of larceny.
In the second count, the words are thus charged : “ I (meaning the defendant) got myself excused from serving on the grand jury at the last term of the Henry Circuit Court, (meaning the May term thereof in the year 1855,) for, if I had served as a grand juror, I would have been bound to have indicted William D. Street for theftthereby then and there meaning, and was so understood to mean by John H. Edmonson and others, that William D. Street, plaintiff, had been guilty of the crime of larceny.
The words proved were, defendant said, “if he had served on the grand jury, he would have been bound to have indicted Mr. Street, the plaintiff.” Witness.asked defendant what Mr. Street had been doing; he (defendant) said he (Street) had been getting or taking goods from his store without accounting for them. Witness observed to defendant that it was a very serious charge, and he ought not to r’say any thing about it unless he could prove it; he replied that he could prove every thing he said about it. Witness understood him to mean every thing he had said to witness. Another witness said he heard defendant say he was summoned on the grand jury and did not serve. He (defendant) stated he would not have serv
The plaintiff contends that there is not a total failure of proof, but only a variance ; and that in such cases he has the right to amend without payment- of the costs already accrued. The court below considered it a total failure to prove the words as charged, and consequently would allow the amendment only on terms. We are inclined to the opinion that the Circuit Court properly considered this a failure to make out the words as charged, and that the order to amend on terms was proper. In slander the words must be proved, or a sufficient number of them proved, to support the charge as set forth in the declaration ; it will not do to prove equivalent expressions. The rule stated in the books is, that the slander proved must substantially correspond with that charged in the declaration. By this it is 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 meaning of the rule seems to be that if the words charged to have been spoken are proved, but with the omission or addition of others, not at all varying or affecting their sense, the variance will not be regarded. Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance, an action can not be maintained; and although the same idea is conveyed in the words charged and those proved, yet if they are not substantially the same words, though they contain the same charge, but in different phraseology, the plaintiff is not entitled to recover. (Barry v. Dryden, 7 Mo. 325.) Though the plaintiff need not prove all the words laid, yet he must prove so much of them as is sufficient to sustain his cause of action; and it is not enough for him to prove equivalent words of slander. (2 East. 438.) The words in this plaintiff’s petition were not proved, nor was there proof of equivalent words. The plaintiff failed to make out his charge. Why then should he be permitted to amend his petition by alleging a new set of slanderous words in accordance
There is no error in refusing to let the witnesses state what they understood by the words spoken of plaintiff by defendant in this action. Such proof would have been unavailing and useless here, since the slanderous words were not proved as charged. Let the judgment be affirmed; the other judges concurring.