GOODE, J.
(after stating the facts). — 1. One assignment of error is for failure to prove the slanderous words alleged in the petition, the allegation being, as we have stated, in two forms. There was proof defendant used the exact words the petition charges him with having used and in both forms. This proof was, of course, sufficient. It is true the witnesses did not all agree as to defendant’s exact phraseology and sometimes stated his language with immaterial variations. Nevertheless, the very words laid in the petition were sworn to by one or more witnesses, while others testified to what the books call “substantially the same words,” of which phrase a definition was given in Berry v. Dryden, 7 Mo. 324, that has since been adhered to by the courts. In discussing the evidence in said case in comparison with the slander laid in the petition, the court said no authority would be required to show the words proved to have been spoken were not substantially the same as those laid in the declaration; that the rule required the slander proved substantially to correspond with the one charged; but by this it was 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 [568] meaning of the rule seems to he, that, if the tcords charged to have been spoken are proved, hut with the omission or addition of others not at all varying or affecting their sense, the variance will not he regarded. (Italics ours.) Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance, an action cannot 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.” In Birch v. Benton, 26 Mo. 153, 163, the court said a variation between the declaration and proof as to the part of the statement that did not affect the sense would be immaterial; “but the words that contain the poison to the character and impute the crime, must be proved as laid; and this seems to be what is meant by the cases when they say that the words proved must substantially correspond with those charged.” Again, it. has been said “all the words need not be proved; some of them may be omitted provided those proved are those containing the poison to the character and constitute the precise charge of the slander averred.” [Lewis v. McDaniel, 82 Mo. 577, 582; citing Birch v. Benton, 26 Mo. 161 and Pennington v. Meeks, 46 Mo. 217.] We understand from the authorities supra and others cited in .them, the slanderous accusation may be proved in no .other words than those laid in the petition; but if enough of those words are proved to have been spoken, to express the accusation, the omission to prove other immaterial words laid in the petition, or proving the use of immaterial words not laid therein, constitutes no fatal variance. Counsel for defendant in their brief quote the following, among other passages, from the testimony of plaintiff, which we think establish the speaking of the words charged: “He pointed at me and said, ’You have got that pocketbook; that waiter has got that pocketbook; there was five dollars in it;’ ‘That waiter [569] has got the pocketbook, I know all about it; there was five dollars in it‘That waiter has got the pocketbook; there was five dollars in it.” Another witness testified as follows: “Q. To whom did Mr. Steigers use the words — ‘I know all abont it; that waiter has got the pocketbook; there was five dollars in the pocketbook?’ A. To me.” We might reproduce other testimony of the same import. This assignment will be overruled.
2. Complaint is made of the main instructions granted at plaintiff’s request for not requiring the jury to find the existence of the extrinsic facts averred in the petition, in order to render actionable the alleged slanderous words, which were not actionable per se. It is argued the circumstances needed to attach to the words spoken by defendant an accusation against plaintiff of the criminal offense of petit larceny, should have been found by the jury and the jury should have been required by the instructions to find them. This contention refers to the matter of inducement in the petition wherein plaintiff is alleged to have been a waiter in a cafe; that defendant, accompanied by a young lady, visited the cafe for the purpose of taking a meal and it became plaintiff’s duty as an employee to wait on them; that he did so, and after they had finished their meal, arisen from the table and while they were still in the cafe, a pocketbook with five dollars in it, alleged to be the property of defendant’s guest, was said by defendant to have been taken by plaintiff from the table at which defendant and his guest were served, etc. If there had been a dispute about these matters, it would have been necessary to submit the truth of the averments to the jury. Instead, the occurrence of the circumstances alleged in the petition was testified to by defendant himself. A court is not bound to make an issue of fact for the jury about a matter concerning which there is no controversy, but may assume the truth of it. [Van Natta v. Railroad, 133 Mo. 13.]
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GOODE, J.
(after stating the facts). — 1. One assignment of error is for failure to prove the slanderous words alleged in the petition, the allegation being, as we have stated, in two forms. There was proof defendant used the exact words the petition charges him with having used and in both forms. This proof was, of course, sufficient. It is true the witnesses did not all agree as to defendant’s exact phraseology and sometimes stated his language with immaterial variations. Nevertheless, the very words laid in the petition were sworn to by one or more witnesses, while others testified to what the books call “substantially the same words,” of which phrase a definition was given in Berry v. Dryden, 7 Mo. 324, that has since been adhered to by the courts. In discussing the evidence in said case in comparison with the slander laid in the petition, the court said no authority would be required to show the words proved to have been spoken were not substantially the same as those laid in the declaration; that the rule required the slander proved substantially to correspond with the one charged; but by this it was 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 [568] meaning of the rule seems to he, that, if the tcords charged to have been spoken are proved, hut with the omission or addition of others not at all varying or affecting their sense, the variance will not he regarded. (Italics ours.) Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance, an action cannot 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.” In Birch v. Benton, 26 Mo. 153, 163, the court said a variation between the declaration and proof as to the part of the statement that did not affect the sense would be immaterial; “but the words that contain the poison to the character and impute the crime, must be proved as laid; and this seems to be what is meant by the cases when they say that the words proved must substantially correspond with those charged.” Again, it. has been said “all the words need not be proved; some of them may be omitted provided those proved are those containing the poison to the character and constitute the precise charge of the slander averred.” [Lewis v. McDaniel, 82 Mo. 577, 582; citing Birch v. Benton, 26 Mo. 161 and Pennington v. Meeks, 46 Mo. 217.] We understand from the authorities supra and others cited in .them, the slanderous accusation may be proved in no .other words than those laid in the petition; but if enough of those words are proved to have been spoken, to express the accusation, the omission to prove other immaterial words laid in the petition, or proving the use of immaterial words not laid therein, constitutes no fatal variance. Counsel for defendant in their brief quote the following, among other passages, from the testimony of plaintiff, which we think establish the speaking of the words charged: “He pointed at me and said, ’You have got that pocketbook; that waiter has got that pocketbook; there was five dollars in it;’ ‘That waiter [569] has got the pocketbook, I know all about it; there was five dollars in it‘That waiter has got the pocketbook; there was five dollars in it.” Another witness testified as follows: “Q. To whom did Mr. Steigers use the words — ‘I know all abont it; that waiter has got the pocketbook; there was five dollars in the pocketbook?’ A. To me.” We might reproduce other testimony of the same import. This assignment will be overruled.
2. Complaint is made of the main instructions granted at plaintiff’s request for not requiring the jury to find the existence of the extrinsic facts averred in the petition, in order to render actionable the alleged slanderous words, which were not actionable per se. It is argued the circumstances needed to attach to the words spoken by defendant an accusation against plaintiff of the criminal offense of petit larceny, should have been found by the jury and the jury should have been required by the instructions to find them. This contention refers to the matter of inducement in the petition wherein plaintiff is alleged to have been a waiter in a cafe; that defendant, accompanied by a young lady, visited the cafe for the purpose of taking a meal and it became plaintiff’s duty as an employee to wait on them; that he did so, and after they had finished their meal, arisen from the table and while they were still in the cafe, a pocketbook with five dollars in it, alleged to be the property of defendant’s guest, was said by defendant to have been taken by plaintiff from the table at which defendant and his guest were served, etc. If there had been a dispute about these matters, it would have been necessary to submit the truth of the averments to the jury. Instead, the occurrence of the circumstances alleged in the petition was testified to by defendant himself. A court is not bound to make an issue of fact for the jury about a matter concerning which there is no controversy, but may assume the truth of it. [Van Natta v. Railroad, 133 Mo. 13.]
[570] .3. The eighth instruction for plaintiff is said to have carried the implication that if the jury found the verdict for plaintiff, they should allow him punitive damages. They were told if they found a verdict for him, in estimating his punitive damages, they might consider defendant’s wealth and position and influence in society, as well as plaintiff’s condition in life. In itself and unless the meaning was sufficiently clarified by other instructions, this charge' was suggestive of the notion that punitive damages must accompany a verdict for plaintiff; which, of course, was not the law. The allowance of punitive damages depended on whether defendant had uttered the slander maliciously; and even if he had, in its discretion the jury might refuse to award such damages. [Nicholson v. Rogers, 129 Mo. 136, 141.] The instruction should be interpreted in connection with the others bearing on the subject of damages. It will be seen the seventh advised the jury that if they found for plaintiff they must assess his damages at such sum as would fully compensate him for the damage sustained by the utterance of the words, and then advised them, if they believed the words were uttered maliciously, they might add such additional sum by way of exemplary or punitive damages as would punish defendant for the utterance. And the ninth charge said if the jury found for plaintiff and assessed exemplary damages under the other instructions, they should state the actual and punitive damages separately. At the request of defendant the jury were advised they could not allow plaintiff any punitive damages if they found he did not speak the words complained of maliciously and actuated by malice. The eighth instruction was not well drawn; but in view of the other charges we think there was no chance for men of ordinary intelligence to derive the opinion that they had been instructed they must award punitive damages if they found for plaintiff. The charge condemned in Nicholson v. Rogers, was different; for there the jury were told they must award such an [571] amount of damages as would compensate the plaintiff, as well as punish the defendant for his malicious conduct. The Supreme Court held this charge directed the jury as though the plaintiff was entitled to punitive damages as a matter of legal right and, undoubtedly it did. The eighth instruction in the present case does not so direct; but, at most, is, as said, only suggestive of that view, which suggestion was sufficiently dispelled by the instructipns as a whole.
The judgment will be affirmed.
All concur.