McManus v. Jackson

1- Where the slanderous -words charged in a petition are not actionable in themselves, it is necessary to set forth, by way of inducement, those extrinsic facts and circumstances which make them actionable. 2. It is not actionable to charge a person with swearing a lie unless it is showrn by proper averments that the plaintiff was sworn as a witness in a judicial , proceeding, and that the speaking of the offensive words had reference to such proceeding. 3. It is not actionable to charge a person with giving a free pass to a negro, unless it be averred that the negro referred to was a slave; nor, if it be averred that the negro referred to was a slave, would such words be actionable unless it be also averred that the negro did not belong to plaintiff.

Error to Bates Circuit Court. This was an action to recover damages for slanderous words spoken of the plaintiff. The petition contains three counts. The first count states that at a certain specified time the plaintiff was road overseer; that as such he notified the hands in ]fis district to work the roads ; that among the persons so notified were persons in the employ of the defendant; that the latter refused and failed to work on the road as the law directs; that the plaintiff returned a list of the persons so refusing to a justice of the peace to be dealt with according to law ; that it became and was material for'said justice to inquire whether said hands had any lawful excuse for failing and refusing to work said road; that the defendant in the hearing, &c., “ of and concerning the character of plaintiff, and of and concerning the supposed oath of plaintiff on this said trial and litigation before said Justice Lewis Speece aforesaid, maliciously spoke and published of and concerning plaintiff, and of and and concerning the supposed oath of plaintiff, the following false, slanderous and defamatory words following, to-wit: ‘ he (meaning plaintiff) swore a lie’ — ‘ Lawrence McManus (meaning plaintiff) had sworn a lie’ — &c., &c., then and there and thereby meaning, and was so understood by the citizens, to charge plaintiff with the crime of perjury,” &c. The slanderous words charged in the second count are: “ he (meaning plaintiff) once gave a negro a free pass” — “ I wonder if he is not the same man -who once gave a negro a free pass.” It was not averred that the negro was a slave. In the third count the words charged are similar to those charged in the second, and the negro referred to is averred to have been a slave, but it is not averred that he did not belong to the plaintiff. The court sustained a demurrer to the petition. I. In actions of slander the general criterion as to whether words are actionable in themselves is, that the words alleged to have been spoken, if true, would subject the party charged therewith to a criminal prosecution and for which corporal punishment might be inflicted. (26 Mo. 160.) But this is not an infallible rule ; thus, to charge a person with a felony barred by the statute of limitations, or with an offence committed beyond the limits of this state, would be actionable, although in neither case could the party charged be punished in this state, and in the former in no state or place. (Johnson v. Jackson, 25 Mo. 583.) By our statute any voluntary corrupt oath taken before any officer authorized to administer oaths is indictable and the punishment corporal and disgraceful. (R. C. 1855, p. 600, § 4.) The words as charged in the petition are actionable in themselves, for, if true, they would subject the plaintiff to a criminal prosecution and ignominious as well as corporal punishment. (5 Johns. 188 ; 13 Johns. 124, 274 ; 6 Wend. 76 ; 8 Pick. 384-5 ; 20 Mo. 330 — 37; 8 B. Monr. 525.) The second and third counts are sufficient, and the court erred in sustaining the demurrer to these counts. I. The circuit court did right in sustaining the demurrer to both the original and amended petitions, 1st, because the words of the petition as charged are not in themselves actionable unless made so by such averments as would show that the crime imputed to plaintiff was such as, if true, would have subjected the plaintiff to a criminal prosecution; nor does the petition aver that any oath whatever had been administered to plaintiff. There was no colloquium in the petition, consequently it is bad. (See Harris v. Woody, 9 Mo. 112; Palmer v. Hunter, 8 Mo. 512 ; P\selly v. Bacon, 20 Mo. 330.) The second and third counts are too vague, general and uncertain, and charge no offence distinct and liable to punishment. It has been decided by our courts, and is now the law, that an amended petition takes the place of the original one and must set forth the true cause of action; and the same decision has been made on the New York code.