41 Mo. App. 243 | Mo. Ct. App. | 1890
This suit was instituted in the circuit court of Barton county to recover damages for an alleged libel. The defendant filed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action, which was by the court sustained. The plaintiffs declining to further plead, judgment was rendered in favor of the demur-rant. The plaintiffs bring the case here by appeal.
The petition was as follows: “The above-named plaintiffs complain and allege that, on the-day of January, 1889, long prior thereto, and every since that date, they were engaged in carrying on a banking business, as private bankers, under the style and name of ‘Bank of Liberal,’ at the town of Liberal, in Barton county, Missouri. That at, and prior to, the date aforesaid, plaintiffs, as such private bankers, under the name
“ ‘ To all whom, this may concern:
“‘Notice is hereby given that the copartnership heretofore existing by and between G.W. Baldwin, G. H. Walser, J. G. Pitgen, J. A. Noyes, John Betz, F. L. Yale, Joseph York, J. S. Yan Law, P. G. Boulware, Geo. Boulware and R. L. Baldwin, doing business under the firm name and style of the Bank of Liberal, and engaged in the business of private bankers in the town of Liberal, Missouri (meaning the bank hereinbefore mentioned), is hereby dissolved, so far as the undersigned is concerned; and on, and after, this day said parties (meaning the plaintiffs), each, of them, are not authorized or permitted to do any business, contract any liabilities, negotiate any loans, or receive deposits of any kind, directly or indirectly, or further prosecute the business of bankers, or further use the name of said firm of the Bank of Liberal in the business aforesaid.
“ ‘ G. H. Walseb.’
“ That said defendant signed said false, scandalous, malicious and defamatory libel, and wrongfully, maliciously and injuriously procured the same to be published in the Messenger, a newspaper regularly published in said town of Liberal, and largely circulated in said town, county and state; and also falsely, wrongfully and maliciously and injuriously sent, and procured to be sent, to many of plaintiffs’ depositors in said bank and to plaintiffs’ banking correspondents in other cities and states, copies of said false, scandalous, malicious and defamatory libel.
‘ ‘ That by means of the premises the plaintiffs and the said Bank of Liberal have greatly been injured in*250 their credit and reputation aforesaid, and have and are suspected to have been guilty of the misconduct so as aforesaid mentioned to have been charged upon and imputed to them, and to have conducted themselves dishonorably, injudiciously, improperly and unlawfully in undertaking to transact a banking business at the town of Liberal as' aforesaid ; and many of their said customers,- depositors and bank correspondents, as well as the people generally, have been caused to suspect and believe that plaintiffs are, and have been, wrongfully and unlawfully engaged in the business of banking, as private bankers, and have no right or authority to do any business, contract any liabilities, negotiate any loans, or receive deposits of any kind, directly or indirectly, or to prosecute the business of bankers, or to use the name of the said firm of the Bank of Liberal in the business aforesaid. And many of plaintiffs’ depositors, by reason thereof, have withdrawn from said bank their deposits ; many other people have been thereby prevented from transacting any banking business with plaintiffs; many of their banking correspondents have lost confidence in said Bank of Liberal; and said Bank of Liberal has been greatly reduced in its commercial and financial standing ; and plaintiffs have been greatly vexed, harassed, oppressed and injured, and lost and been deprived of divers great gains and profits, which, but for said libel, would have arisen and accrued to them in their said business as private bankers; and have been and are greatly injured and damaged, in the sum of ten thousand dollars ; for which sum and for costs plaintiffs pray judgment.”
The demurrer controverts the conclusions of the pleading, but, not denying the facts which are therein well pleaded, it by necessary implication admits their truth. Bliss on Code Plead., sec. 418. The defendant was not a member of said banking firm as we must infer from the petition was the fact. Then the giving of notice that he had withdrawn from it and that it was no
The statute of this state (section 1591, Revised Statutes) declares : “A libél is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation made' public as aforesaid, designed to blacken or vilify the memory of one who is dead and tending to scandalize or provoke his surviving relations and friends,” Similar definitions to that given in the
If the publication is a libel on the plaintiffs in their business, it must be so on account of some extrinsic fact alleged in the petition. The universal rule is that, if the words are not libelous per se, the petition must by preliminary averments show extrinsic facts from which the libel results. Pollard v. Lyon, 91 U. S. 225; Legg v. Dunlevy, supra; McManus v. Jackson, 28 Mo. 58; Salvatelli v. Ghio, 9 Mo. App. 155. The nature of the present action is that of special damages actually sustained in consequence of words written and published by defendant, and, unless such damage is the natural and probable consequences qf those words and of that publication, the defendant cannot be held liable. And the special damage will not help plaintiffs if the words are not defamatory. Legg v. Dunlevy, 10 Mo. App. 461; Young v. McCrea, 3 Best & S. 264.
The plaintiffs contend that the averment in the petition of these extrinsic facts, viz.: First. “General loss of customers. Second. Many people were prevented from transacting business with the bank, and third, their reduced commercial and financial standing,”
On the other hand if, as is conceded, it was untrue that defendant had dissolved his partnership relations with plaintiffs, and that it was untrue that they, in their partnership capacity, were no longer authorized to transact a banking business in the name of said firm so as to bind defendant, then this action is by several partners against a single one for damages in an action at law which cannot be maintained. Bank v. Beans, 55 Mo. 524; Scott v. Caruth, 50 Mo. 120; Fuert v. Brown, 23 Mo. App. 332. Damages would not be recoverable in such case even in a proceeding in equity. Gaty v. Tyler, 33 Mo. App. 494; Fletcher v. Reed, 121 Mass. 312. If the publication related to the firm and the defendant
We are unable to discover any charge in the publication or in the extrinsic facts alleged in respect thereto, which constitutes a cause of action. The judgment of the circuit court will be affirmed.