Conran v. Fenn

NORTONI, J.

This is a suit for damages said to have accrued to plaintiff on account of an alleged slander spoken of and concerning him by defendant. The process of attachment is invoked in aid of the principal case and as the finding and judgment on both the attachment and suit on the merits were for plaintiff, the appeal by defendant under our statute (Sec. 2335, R. S. 1909), presents both matters for consideration.

We will first dispose of the questions arising on the trial of the attachment, and afterwards consider the appeal with respect to the merits, or the main case.

By his affidavit for attachment, plaintiff avers four separate grounds therefor. The two first of these predicate npon the twelfth subdivision of section 2294, Revised Statutes 1909, pertaining to attachments, and state that the damages for which the action is brought accrued on account of injuries arising from the commission of a misdemeanor by defendant, while the other two grounds predicate upon the seventh and eighth subdivision of the same statute. One of them goes to the effect, substantially, that defendant has fraudulently conveyed his property so as to hinder or delay his creditors, and the other that defendant has fraudulently concealed, removed or disposed of his property *671 and effects so as to hinder or delay his creditors. All of these matters were pnt in issue by defendant’s plea in abatement, and a trial thereof was had before the jury. As before stated the first ground for the attachment predicates upon the twelfth subdivision of the statute in that it is alleged that the injury, for which the damages sued for are sought, arose from the commission by defendant of a misdemeanor. The misdemeanor said to have been committed by defendant and from which the damages are said to flow is alleged to be that defendant Fenn, maliciously intending and contriving to scandalize and to bring in disrepute the plaintiff, did unlawfully, falsely and maliciously charge plaintiff, in the presence of one J. F. Cordon, with the crime of forgery. The misdemeanor charged, in short, is criminal slander spoken of and concerning plaintiff by defendant and the slanderous words set forth in the affidavit as those imputing to plaintiff the act and offense of forgery are that “he, Conran (meaning J. V. Conran, plaintiff) forged-that deed,” meaning and referring to a quitclaim deed from M. H. Powell to J. V. Conran, dated June 8, 1903, acknowledged June 10, 1903, before Lnle R. Colvin, a notary public in and for the City of St. Louis. Section 4817, Revised Statutes 1909 denounces as a misdemeanor the false and malicious speaking of words by one person of another which impute a felony, the. commission of which would subject such person to disfranchisement and other degrading penalties. There can be no doubt that the charge set forth in the affidavit as having been spoken by defendant of and concerning plaintiff, if substantiated on the trial, would infringe the provision of the statute cited and render the defendant liable to answer for the commission of a misdemeanor. But, in order to sustain the attachment on the ground stated, it devolves upon plaintiff to prove the charge laid; that is to say, it devolves upon plaintiff to prove the slanderous words set forth or enough *672 of them to constitute the charge laid. The slander proved must substantially correspond with that charged. This rule, it has been repeatedly held by the courts, means that if the words charged to have been spoken are proved, but with the omission or addition of others not varying the same, then the variance is immaterial. It is not enough, however, that the words proved are of equivalent meaning. They must be substantially the same words laid in the affidavit or enough of them to convey the poison involved. [Noeinger v. Voght, 88 Mo. 589 ; Watson v. Musick, 2 Mo. 29 ; Townshend on Slander (4 Ed.), sec. 365; State v. Fenn, 112 Mo. App. 531 , 86 S. W. 1098 .]

To substantiate the charge that defendant spoke of and concerning plaintiff the words ‘ ‘that he forged that deed” in the presence and hearing of J. F. Gordon, plaintiff placed three witnesses upon the stand. Two of them wholly failed to substantiate a single word of the charge as laid. Their evidence is so utterly insufficient as even tending to prove the charge laid, as to render it unnecessary to comment upon it here. The third witness, Mr. Gordon, said he. heard a conversation between defendant and one Mal H. Powell about the deed mentioned when they were looking over the deed record in the recorder’s office at New Madrid, Missouri, and that one of them denounced the deed as a forgery. When this witness was asked who made this statement, he answered: “Well, I don’t know, the statements were mixed up between Mr. Fenn and Mrs. Powell and I can’t say just who made the statement.” Further on in the examination, of this witness, he relates the entire conversation in which it is alleged the defendant spoke the slander complained of: “Q. Well, what was the conversation? A. Well, as well as I remember, the conversation came up— they were examining the records and they were looking for a deed, I believe, to Mr. Fenn, and run across this deed, and he turned around and says to Mrs. *673 Powell, he says, ‘Look here, Mrs. Powell, did you sign this?’ And she says, ‘No.’ Then afterwards the remark that it was a forgery, or something of that kind, came up. Q. Who made the remark about it being a forgery? Mr. More: I object to that because the witness already stated that he didn’t know who it was. By the Court: Well, ask him the question. Go on. Mr. More: We except. A. It is my impression that Mr. Penn made that remark, that it was a forgery.” It appears that when the witness is thus pressed, he says no more than it is his impression that the defendant made the remark the deed was a forgery. This may be conceded to be true and still the charge' sufficient to support a conviction of a misdemeanor as for criminal slander is not sustained; for,-though defendant said the deed was a forgery, this in no manner charged plaintiff with the offense of forging. The words relied upon in the affidavit as the slander are ‘‘He (speaking of and concerning the plaintiff) forged that deed. ’ ’ And the mere statement that a deed found to be on record in which plaintiff was grantee is a forgery in no manner suggests that plaintiff was the forger. It appears then that the words proved -in support of the first ground of the attachment are neither the same words laid in the affidavit nor enough of. them to convey the poison said to be involved in the charge. The court should have directed a verdict for defendant on this ground of the attachment and erred in submitting it to the jury.

The second ground of attachment predicates as well upon the twelfth subdivision of section 2294, Revised Statutes 1909. The twelfth subdivision referred to authorizes an attachment “Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or for the seduction of any female.” It is to be noted that, as precedent to sustaining the attachment on this *674 ground, there must be damages accrued to plaintiff on account of the commission of some offense or misdemeanor therein suggested. Though an offense may have been committed by defendant, if no damages are entailed thereby upon the complainant which may be recovered in a civil action,, then no ground for attachment on this score appears. The offense charged against defendant in the affidavit for the attachment and as the second ground therefor is, that defendant together with Mal PI. Powell conspired and confederated to injure plaintiff by having him indicted for forgery, which they subsequently did, and to defeat his estate in certain lands which plaintiff had purchased from Mal PI. Powell by having her enter into a marriage with one Bryant. It seems that by the will of her prior husband, J. E. Powell, an estate in certain lands in New Madrid county had been devised to the widow, Mal H. Powell, during her life, or until her remarriage. This estate Mal H. Powell had conveyed to plaintiff and it is said that she subsequently married Bryant, to the end of terminating plaintiff’s rights in the property; but this feature of the case is not sufficiently proved to merit consideration. Be all of this as it may, before the attachment can be sustained on this ground, the petition in the principal suit must reveal a cause of action for damages accruing to plaintiff on account of the commission of some offense contemplated by the twelfth subdivision of the attachment statute, for that subdivision by its plain terms authorizes an attachment only where the damages for which the action is brought are for injuries arising from the commission of some offense therein suggested. Unless, therefore, the petition states a cause of action with respect of such damages, there is no ground on which an attachment of this kind may be founded. As to this matter, the sufficiency of the allegation of the affidavit in attachment may be determined by reference to the petition. [See Deering & Co. v. *675 Collins, 38 Mo. App. 80 .] As before stated, the affidavit for attachment pertaining to the second ground alleged predicates entirely upon damages said to have accrued to plaintiff, because of a conspiracy between defendant and Mal H. Powell with the purpose both to occasion plaintiff’s indictment and prosecution for forgery and to defeat his rights with respect to the lands mentioned. Originally there was a count in the petition for malicious prosecution, and this, the third count thereof, proceeded on the matter of plaintiff’s-indictment, which indictment was subsequently dismissed; but the third count of the petition, pertaining to malicious prosecution on account of the indictment for forgery and its subsequent nolle prosequi was dismissed and is not before us for consideration. "With this count out of the case, the petition states no cause of action whatever with respect to such conspiracy which authorizes a substantive recovery of damages for plaintiff.

The petition in the main case on its merits, as it stands now and as it was at the trial, consists of two counts. The first seeks a recovery of $5000 actual damages and $50,000 punitive damages on account of several alleged slanders set forth therein, and the second seeks a recovery of $5000 damages on account of the conspiracy referred to.

The second count of the petition relating to the conspiracy mentioned is as follows: ‘ ‘ Second. Plaintiff for another and separate cause of action states that on the 10th day of June, 1903, he acquired from one M. H. Powell a life tenancy in and to certain lands in New Madrid county, as appear from said deed, which wa,s on the date aforesaid made, executed and delivered. That afterwards the defendant did enter into a conspiracy with her, the said M. H. Powell and with others to this plaintiff unknown, for the purpose of defrauding him, the said J. Y. Conran, in his property rights in and to said property, and for the purpose of *676 forcing Mm, the said J. V. Conran, to pay tribute in tbe way of blackmail or husb money and Penn, in pursuance of paid conspiracy, did circulate false and defamatory statements regarding bim, tbe said J. V. Conran; did threaten bim, tbe said Conran, with arrest and indictment to sundry and various acquaintances of bim, tbe said J. V. Conran, and did by false and untrue statements procure an indictment of bim, tbe said J. V. Conran, by tbe grand jury of tbe City of St. Louis on tbe charge of forgery in tbe first degree, said charge. being based upon tbe deed made, executed and delivered to J. V. Conran by M. IT. Powell on tbe 10th day of June, 1901; be, tbe said Penn, at tbe time well knowing that be, tbe said J. V. Conran, was not guilty of tbe said charge, and having bad a reasonable chance to so apprise Mmself; and in further pursuance of said conspiracy be, tbe said Bert P. Penn, did aid, counsel and abet tbe said M. IT. Powell in tbe fraudulent and unholy marriage ceremony; be did procure a marriage certificate for a man be, tbe said Penn well knew to be Percy L. Bryant, under tbe name ,of Percy L. Brandt, and assisted at tbe wedding of bim, tbe said Percy L. Bryant, to her, tbe said M. H. Powell, at tbe time well knowing that tbe said ceremony was a farce; that there was no intention of tbe parties to maintain tbe marriage relation, and that tbe same was done for tbe deliberate purpose of defrauding tbe plaintiff; that by reason of said acts of tbe defendant, tbe plaintiff has been damaged in tbe sum of five thousand dollars, for which be prays judgment and for costs.”

It is obvious this count of tbe petition states no cause of action for malicious prosecution, and, indeed, it is not claimed that it does. Neither does it state a ■cause of action for damages on account of a false arrest, and though it is said therein several slanders were uttered of and concerning tbe plaintiff, it does not purport to set forth a cause of action for slander,

*677 With, the third count of the petition pertaining to malicious prosecution out of the case because of its dismissal as before mentioned, the only substantive wrong which may possibly have operated a cause of action for damages in favor of plaintiff as a result of the conspiracy set forth pertained to his rights in the land in New Madrid county which he purchased from Mal H. Powell. Though the estate which plaintiff purchased from Mai IT. Powell was subject to be defeated, as he well knew, upon either her remarriage or death, there is naught in the petition to that effect. There are averments in the petition which go to the effect that defendant and Mal H. Powell conspired and in pursuance of the conspiracy defendant aided and abetted Mal H. Powell in a fraudulent and unholy marriage ceremony whereby she was married to Percy L. Bryant and that this marriage was had for the purpose of defrauding plaintiff, but nothing is disclosed as to how he was defrauded thereby, if defrauded at all. It is now the universal rule of decision that no action will lie for simply conspiring to do an unlawful act. Under the modern view, the conspiracy merges in the commission of the wrong and it of itself is material only to the end of affixing liability against others when a substantive wrong has been perpetrated by one or more in pursuance of such conspiracy. A civil action for damages, therefore, instead of accruing on account of the conspiracy, rests alone upon the unlawful act subsequently committed, to the injury of the party complaining. The gist of the civil action for damages is the injury done to the plaintiff and not the conspiracy to do it. [Ross v. Mineral Land Co., 162 Mo. 317, 331 , 62 S. W. 984 ; Remmers v. Remmers, 217 Mo. 541 , 117 S. W. 1117 ; 6 Am. and Eng. Ency. Law (2 Ed.), 873, 874.] As the second count of the petition alone affords the basis for the right of attachment alleged to have accrued on account of the conspiracy, this ground of the attachment must fail for *678 the reason no substantive wrong affording a cause of action to plaintiff for damages as a result of the alleged conspiracy is set forth in the petition. It may be conceded that it is an offense for two or more persons to conspire to perpetrate a wrong upon a third party under the circumstances mentioned in sections 4705, 4706, Revised Statutes 1909; but though such be true, before an attachment may be had on account of such conspiracy, a substantive right of recovery of damages must accrue to plaintiff under the twelfth subdivision of section 2294, Revised Statutes 1909. [See Deering & Co. v. Collins, 38 Mo. App. 80 .] The court erred in submitting the second ground of attachment to the jury, for the reason the petition, after the dismissal of the count for malicious prosecution, revealed no cause of action in favor of plaintiff as a result of the conspiracy referred to.

The third ground of attachment set forth in the affidavit is that contemplated in the seventh subdivision of section -2294 on attachments, for it is averred therein that the defendant had fraudulently conveyed or assigned his property or effects so as to hinder and delay his creditors. The suit was instituted on May 21, 1906, and there is evidence that defendant, in March theretofore, conveyed to Hunter certain lands owned by him in New Madrid county. It is shown, too; that defendant was indebted at that time. This proof, together with other facts and circumstances in evidence, tended to support this ground for the attachment and the question was for the jury. But the court received in evidence as well, in support of this ground, a deed executed by defendant to one Frank Ferrell, which conveyed certain lands owned by defendant in New Madrid county to Ferrell. This deed, it appears, was dated May 23, 1906 or two days after the attachment was sued out. Under this, the seventh ground of attachment, the deed referred to was improperly admitted, for the allegation is, that defend *679 ant had fraudulently conveyed and assigned his property on and prior to the 21st day of May, the date of filing’ the suit. By instruction No. 4 for plaintiff, the court directed the jury that they might consider this deed of date May 23d in aid of the allegation above mentioned. This, too, was an error which should not occur on a retrial.

The same error with respect to the same deed occurred, too, in instruction No. 5, given on behalf of plaintiff. This instruction is as follows: “The court instructs the jury that if they believe and find from the evidence that the defendant on the 21st day of May, 1906, had conveyed his property in a deed executed by him to Shap R. Hunter, Sr., and a deed executed by him to Frank Ferrell with the intent to hinder or delay his creditors, and that if they further find from the evidence that the object or effect of the execution of the instruments conveying the aforesaid property was to defraud or hinder or delay plaintiff or any of defendant’s creditors, then the finding should be for the plaintiff, and the attachment should be sustained as to both counts in plaintiff’s petition upon which the attachment was sued out.” The instruction permitted the jury to find defendant had conveyed his property on May 21st to Ferrell with intent to hinder or delay his creditors, when there is no proof whatever to that effect. Instead, the proof as to this deed is conclusive that it was not executed until two days after the attachment was filed. Furthermore, this instruction is erroneous, for, though it requires the, jury to find defendant conveyed his property with intent to hinder or delay his creditors, as was proper enough, it directs that if the jury further found from the evidence that “the object or effect” of executing the deeds mentioned was to defraud, hinder or delay plaintiff’s creditors, then the finding should be for plaintiff. This incorporates an erroneous conception with respect to the seventh subdivision of the attachment statute, for *680 instead of either the object or effect of the instrument being sufficient to sustain the attachment under that ground, both must concur; that is to say, there must be both a fraudulent intent on the part of the debtor and the effect of the conveyance as well must be to hinder or delay his creditors. [Furth Grocery Co. v. May, 78 Mo. App. 323 .]

The fourth ground for attachment incorporated in the affidavit is that which is contemplated by the eighth subdivision of the statute (sec. 2294, R. S. 1909), for the affidavit avers that defendant has fraudulently concealed, removed, and disposed of his property or effects so as to hinder or delay his creditors. There is not a scintilla of proof in the case that defendant concealed or removed any of his property and the entire subject-matter in decision with respect to this ground of attachment turns on the words “disposed of his property.” The only evidence whatever tend-’ ing to prove that defendant disposed of any property for any purpose is that above mentioned pertaining to the conveyance of some of his lands to Hunter and some to Ferrell. The court nevertheless submitted this matter to the jury as though such conveyance tended to support the allegation. This was error, for it has been pointedly decided that the word “disposed,” as used in this subdivision of the statute, was not intended by the legislature to cover such conveyances or alienations of property. It is said no two of the fourteen separate specifications for grounds of attachment set forth in the statute contemplate the same subject-matter and that the seventh subdivision alone relates to conveyances such as are revealed in the evidence here. The case of Bullene v. Smith, 73 Mo. 151 is directly in point and it is therefore unnecessary to elaborate. For the reasoning of the court, reference is made to that case. The court erred in submitting the fourth ground of attachment to the jury, for under the authority cited, there was no proof *681 whatever tending to support it. From what has been said, it is obvious the judgment sustaining the attachment must be reversed and the cause, with respect to that matter, remanded.

On the Merits.

We come now to consider the appeal from the finding and judgment on the merits, or the main case. As before stated, the petition is in three counts, the third of which declares upon a malicious prosecution, but this count was dismissed at the trial and will not be further noticed. The second count declares upon a conspiracy and is above set forth in connection with the second ground on which the attachment was sued out in aid of it. We have considered this count of the petition. It appears to state no cause of action and will not be further noticed.

There remains, then, but one count of the petition, which is the first. That count presents a jumble of slanders, commingled, which, it is averred, defendant spoke of and concerning plaintiff. It does not appear from the petition that these various statements were made at different times and in the presence of different persons, in different localities, but the proof reveals such to be the fact, if the statements' were made at all. We believe there is some evidence tending to prove some of the statements attributed to defendant of and concerning plaintiff in this count of the petition and the subject-matter may be for the jury. It is unnecessary to discuss or elaborate this count, for that a petition setting out in one count, as this one does, a number of separate slanders, spoken at different times, in different places, to different persons, is bad pleading goes without saying. [See Flowers v. Smith, 214 Mo. 98 , 112 S. W. 499 .] No doubt the petition may be amended, however, if plaintiff is so advised.

Among other things, the first count of the petition charges as one of the slanders uttered that defendant *682 said “that deed is a forgery.” It is obvious that the mere statement of the words “that deed is a forgery” without more is insufficient to sustain a charge of slander, for it omits to impute the fact of forgery to plaintiff or any one else, and the words do not imply it.

By the second instruction for plaintiff, the court submitted all of these different statements made to different persons at different times and places to the jury for a finding, as if they were all made at the same time and place and in the presence of the numerous parties therein named. The proof is, defendant used some of the language alleged in New Madrid county, some at one place in St. Louis and some at another in St. Louis, at different times and to different persons. Notwithstanding this, all of these words are submitted by the second instruction as if they were all statements made at the same time, in the same place and to the same persons, while each separate statement made at different times, to different persons must be regarded as a separate slander, giving rise to a separate cause of action, if a slander at all. The second instruction referred to is as follows: “The court instructs the jury, that if the said J. V. Conran, plaintiff herein, after the execution by Mal H. Powell of the quitclaim deed dated June 10, 1903, conveying real estate to him, the said J. V. Conran, in New Madrid county, Missouri, executed before Lulu R. Colvin, notary public, in and for the City of St. Louis, did, after the execution and delivery of said deed to him, the said J. V. Conran, with the intent to defraud her, the said Mal PI. Powell, remove from said deed, a consideration written in the deed at the time of its execution and delivery to him, the said J. V. Conran, and then wrote in a consideration different from that originally written in the deed, then he, the said J. V. Conran, was guilty of forgery; and the court further instructs that if you believe and find from the evidence that the defendant at any time within two years next *683 before the 21st day of May, 1906, speaking of and concerning the plaintiff in this case, J. Y. Conran, and concerning and with reference to the quitclaim deed herein before set out, did speak of, and concerning the defendant, the following words: He meaning J. V. Conran) has committed forgery he forged that deed, he erased the consideration in that deed, which was monthly payments after it was acknowledged, and then wrote in one thousand dollars, I have seen the original deed and the erasure is plain, he is a forger, he is guilty of forgery, that. deed is a forgery, he changed the consideration in that deed after it had been acknowledged and delivered to him, by erasing the monthly payments, which was the consideration written in the deed, and then writing the words, one thousand dollars, or enough of the above said words to constitute the charges of forgery against the plaintiff, the said Bert F. Fenn, charging and meaning to charge thereby, that the plaintiff, J. Y. Conran, had altered or changed the consideration in said deed as aforesaid, with the intent thereby to defraud the said Mal H. Powell, and being so understood by the parties to whom said words were spoken; and that if the jury further believe that said statements were false and untrue, then the jury should find for the plaintiff on the first count in the petition.” Among other things, this instruction authorizes the jury to find for plaintiff if it found defendant said of and concerning plaintiff, “that deed is a forgery.” These words, though not so treated by the instruction, are, in fact, a separate slander alleged to have been uttered by defendant. Though he spoke the words, “that deed is a forgery” concerning the deed from Mal H. Powell to plaintiff, these words do not impute the forgery to plaintiff or to any other person. It appears, therefore, that though there may be some valid causes of action set forth in the first count of the petition, some of the words relied upon' do not constitute a slander *684 when proved, and as the verdict is a general one affirming all of these various alleged slanders in the one count, it may not he sustained under the authority of Flowers v. Smith, 214 Mo. 98 , 112 S. W. 499 .

Though plaintiff is a member of the bar and appears to have been aided at the trial by other counsel, we have not been favored with a brief for him. As a result of his omission to brief the case and contribute ■something toward analyzing the record in support of the judgment, considerable labor has been entailed •.upon us. Probably the numerous errors were intended to be confessed, but no statement to that effect has been made or filed. The record presents eight hundred and twenty-seven pages of printed matter and abounds with evidence which is both immaterial and incompetent. Besides the numerous errors we have pointed out, there are many others to be found therein touching the rulings of the court on the admission and rejection of evidence which of themselves are sufficient to operate a reversal of either the judgment sustaining the attachment or that on the merits. Upon a retrial, counsel should devote more pains to trying the case according to the established rules of law and less •energy to introducing immaterial matters into the record.

For the errors above pointed out, the judgment x>n the merits will be reversed and the cause remanded. It is so ordered with respect to both judgments.

Reynolds, P. J., and Caulfield, J., concur.