213 Mo. 655 | Mo. | 1908
The plaintiff, brought this action against the defendant, a corporation, organized under
The petition states that on February 2, 1904, and prior thereto, there was pending at the city of Albany, New York, before the Governor of the State of New York, a certain proceeding wherein the Governor of the State of Missouri sought to secure the extradition from the State of New York of one William Ziegler, charged by an indictment theretofore returned into the circuit court of Cole county with the crime and offense of bribery alleged in said indictment to haxe been committed in said Cole county, State of Missouri. That on February 3, 1904, the defendant, in said newspaper and in its daily edition thereof of February 3, 1904, having reference to the aforesaid extradition proceeding, did wrongfully, wickedly and with malice, print and publish concerning plaintiff herein the following false, libelous and defamatory words and matter in manner and form as follows, to-wit:
“ZIEGLER DARES NOT LEAVE NEW YORK.
“If he goes to Connecticut home new extradition proceedings may be instituted.
“attack on attorney brown.
“Baking Powder Magnate’s Lawyer, in Ms brief, openly charges Missouri Prosecutor with perjury.
“Republic special. .
“New York, Féb. 2. — William Ziegler’s escape from extradition to Missouri, through the grace of Governor Odell, has left him in a decidedly awkward position. Mr. Ziegler will run a risk, should he leave the jurisdiction of New York State, of being arrested,*666 should the Missouri authorities continue their efforts to bring him within the jurisdiction of Missouri.
“Mr. Ziegler has a country home in Connecticut and his attorneys are inclined to the belief that Attorney-General Crow will be prepared to requisition the Governor of the New England State for Mr. Ziegler’s return, should he take up his residence there even temporarily, which he frequently does.
“Mr. Ziegler’s discomfiture, however, is not the only result of the decision handed down by Governor Odell yesterday. The attorneys for the baking powder manufacturer are said to be lying in wait for acting prosecuting attorney Brown of Cole county, should he at any time visit New York. In his brief, Mr. John M. Bowers, one of Mr. Ziegler’s attorneys, openly charges attorney Brown with deliberate and criminal perjury, and Mr. Bowers does hot hesitate to say that, upon his advent into the State, Brown will be instantly arrested and his indictment for perjury sought for.
“charge oe perjury.
“The language used by Mr. Bowers in his brief is clear. He says: ‘This prosecuting attorney of the county of Cole made an affidavit upon which was put in motion the machinery of the Constitution under which Mr. Ziegler’s extradition was sought. It was false as to every allegation as to Mr. Ziegler’s flight. Mr. Ziegler sent a respectful message to the Governor of the State of Missouri, asking that this prosecuting attorney of the county of Cole be produced before your Excellency to repeat the oath he had made by which the machinery of the law as to extradition had been set in motion. He declined to come and on page seventy-six of the stenographer’s minutes of the proceedings before your Excellency, it was openly conceded that he had no knowledge of the matters he swore to in this regard.
*667 “ ‘What does this mean? We openly charged before your Excellency, upon the hearing, that an official of the State had committed perjury pure and simple upon which he instituted a procedure of-this nature, committed a crime of the highest grade.’
‘ ‘ KNEW IT WAS UNTRUE.
“ ‘The one fact which the State of Missouri concedes it had to prove to deprive a citizen of the State of New York of his freedom and transport him to Missouri was that he had been present in that State at a certain time. Mr. Brown, the prosecuting attorney who is to try him, made an affidavit of that fact. Mr. Brown knew it was untrue- when he made it. Even if he swore to facts as true of which he had no knowledge, it was perjury.’
“Mr. Bowers’ claim that attorney Brown committed perjury is based on section 101 of the penal code, which says: ‘An unqualified statement of that which one does not know to be true, is equivalent to a statement of that which he knows to- be false. ’
“eurther proceedings.
“There has been talk to-day to the effect that a-civil action might be taken against prosecuting attorney Brown, but it is highly improbable that any such proceedings will be begun.”
That the terms “Brown,” “Attorney Brown,” “Missouri prosecutor,” “Acting Prosecuting Attorney Brown of Cole county,” “prosecuting attorney -of. the county of Cole,” “An official of the State,” “Mr. Brown, the prosecuting attorney,” and “prosecuting attorney Brown,” as used and contained in said libelous and defamatory publication, all have reference to and mean plaintiff. That at the times referred to in the said defamatory publication, the plaintiff was the duly appointed and acting prosecuting attorney of the county of Cole, State aforesaid. That defendant pub-
Tbe defendant answering admitted its existence as a corporation, its ownership of tbe St. Louis Republic, and that it made tbe publication complained of, and denied everything else in tbe petition. And then set up tbe following special defense: “That at tbe time of tbe said publication there bad been pending and had just closed a proceeding before Hon. B. B. Odell, then Governor of tbe State of New York, for tbe extradition of William Ziegler, who had theretofore been indicted by the grand jury of Cole county, Missouri, for tbe crime of bribery, and for whose ex
The replication was a general denial of the new matter in the answer. The cause came on for trial on the 31st day of May, 1905, and resulted in a verdict and judgment for the plaintiff of $5,000 for actual damages and $5,000' punitive damages. In due time the defendant filed its motions for a new trial and in arrest of judgment, which were heard and overruled, and the defendant has appealed to this court.
On the part of the plaintiff the evidence tended to show that the circulation of the St. Louis Eepublic was substantially as stated in the petition and that the paper had a large circulation in the Mississippi Valley and had subscribers in nearly all the counties of Missouri, including Oole county and Jefferson City. It is also shown that the capitalization of the defendant company was $500,000, and the president of the company testified that he would not sell his interest in the defendant company at par nor for two or three times that amount. That the witness had no knowledge of any ill-will on the part of the management of the defendant newspaper towards the plaintiff. That he had never had any controversy with the plaintiff, bore him no ill-will and his only feeling was one of sympathy with the officers of this State in their efforts for the extradition of Ziegler. That the editor of the Eepublic was J. A. Graham, the night and news editor was Homer A. Bassford, the city editor was Mr. McAuliffe, and the business manager was W. B.
The plaintiff testified in his own behalf that he had lived in Jefferson City for twenty-four years and during that time had been engaged there in the practice of law. He was appointed prosecuting attorney of Cole county, November 14, 1903, and continued as such until the 15th day of the following February. The publication gave him mental pain and suffering; it was a matter of great annoyance to him, because it brought him into criticism, the people spoke adversely of him. He is a married man with five children. On cross-examination, he stated he never knew "William Ziegler, believed he was now dead; that he made the affidavit in the extradition papers to secure the extradition from New York to Missouri; that he did not know personally where Ziegler was in the month of March, 1901, nor where he had ever been at any time of his life; witness did not hear until sometime after March 30, 1903, of the telegram to- Governor Dockery asking him to cause witness to attend the hearing of the extradition proceedings in New York; that witness made the affidavit for the requisition of William Ziegler at the request of Attorney-General Crow, who conducted the investigation before the grand jury that returned the indictment against Ziegler, at the request of Attorney-General Crow, and on the information furnished by the latter. Witness felt secure in the request and confidence of his home community and did not believe people would take it' seriously. The publication was a matter of great annoyance more than anything else.
With this prima-facie showing, the plaintiff rested.
The defendant at this point offered a demurrer to the evidence, which was overruled.
Joseph Graham, managing editor of the St. Louis Republic, testified that the publication complained of, and others relating to the Ziegler extradition proceedings, were made as a matter of public interest and concern to the State of Missouri, and that there was no ill-will against Mr. Brown, but on the contrary, the Republic people were entirely favorable to him. On cross-examination, he stated that no attempt was made to verify the statements in the publication complained of by the correspondent at Jefferson City, and there naturally would hot be as the publication was made with reference to proceedings in New York. Messrs. Bassford, McAuliffe and Carr, editors and managers of the Republic, all testified that they knew of no malice or ill-will towards Mr. Brown on the part of anybody connected with the Republic.
John P. Regan, the New York correspondent of the Republic, testified that from time to time while the Ziegler extradition proceedings were pending in New York he sent reports of them to th§ Republic' as matters of public interest to the people of Missouri. He did not intend to and did not charge Mr. Brown with perjury, and sent what Mr. Bowers had said of Mr. Brown as something the people of Missouri would be interested in. His sympathies in the matter were with the Missouri attorneys. He got the Bowers brief through the New York Herald. On cross-examination, he said he got the information upon which his reports of the Ziegler extradition was based from various sources, principally the New York Herald and the Brooklyn Eagle. The publication which is the basis of this action was taken from the Brooklyn Eagle.
The deposition of John M. Bowers taken in New York was read in evidence. He testified that he was
Counsel for the defendant offered the brief of Mr. Bowers in full and the report of the proceedings' before Governor Odell was identified as correct and was offered in evidence and is set out in full in the transcript. This report shows that the hearing before the Governor began December 7, 1903, and was had at Albany. E. C. Crow, Attorney-General, and Judge Thomas P. Harvey appeared for Missouri, and John M. Bowers, Delaney Nicoll, Edward Lauterbach, William J. Underwood, John D. Lindsey and James W. Gerard appeared for Ziegler. Mr. Bowers opened the matter before the Governor by a request that the Mis
It was admitted by the plaintiff that section 101 of the penal code of New York is in the words stated in the answer and in the publication complained of. The defendant also offered in evidence further publications made by the Republic concerning the Ziegier extradition beginning with November 15, 1903, when the indictment against Ziegler was returned and ending with the publication complained of on February 3, 1904. .
Governor Odell made his decision refusing the extradition of Ziegler on February 1, 1904. Under the date of December 8, 1903, two dispatches from Albany of the preceding day gave an account of the hearing before the Governor.
In rebuttal the plaintiff, over the objection of the defendant, gave in evidence an article from the Brooklyn Eagle containing the same extracts from the Ziegler proceedings which are contained in the defendant’s publication.
'With this the- plaintiff closed the case. The instructions in the ease will be discussed in connection with the assignments of error on the part of the defendant.
I. It is insisted on behalf of the defendant that the publication sued upon is not libelous because it is, and appears upon its face to be, part of the report of a legal proceeding, in which the epithets complained of as libelous were applied by counsel to the plaintiff under circumstances, as disclosed by the publication itself, which show them to be mere invective and unwarranted by the facts upon which they were predicated. It has already been ruled in the companion case of Brown v. Globe Printing Company, page 611, this volume, and growing out of practically the same pub
A fair reading of the alleged libelous publication will show that it did not purport to be a report at all of the proceedings before the Governor of New York. The extradition had been refused, and this article began with a reference to the effect of the proceedings on Ziegler’s future movements, his risk in going outside of the State of New York and the probability of the authorities of Missouri taking further steps to bring him to Missouri. The article then proceeds to state that Ziegler’s discomfiture is not the only result of the Governor’s refusal to extradite him, hut the attorneys for Ziegler were said to be lying in wait for the plaintiff, should he at any time visit New York, and then, foreshadowing a prosecution of plaintiff, says: “In his brief Mr. John M. Bowers, one of Ziegler’s attorneys, openly charged attorney Brown with deliberate and criminal perjury, and Mr. Bowers does not hesitate to say that upon his [Brown’s] advent into this State [New York] Brown will be instantly arrested and his indictment for perjury sought for.” Certainly this makes no reference to the occurrences at the trial but refers wholly to events transpiring after the extradition had been denied and to threats of Bowers of a prosecution for “deliberate and crimmal perjuryThen follows the extract from the brief of Bowers in which he says: “He [Brown] declined to come and on page seventy-six of the stenog
“knew it was untrue.
“The one fact which the State of Missouri concedes it had to prove to deprive a citizen of the State of New York of his freedom and transport him to Missouri was that he had been present in the State at a certain time. Mr. Brown, the prosecuting attorney who is to try him, made an affidavit of that fact. Mr. Brown "knew it ivas untrue when he made it. Even if he swore to facts as true of which he had no knowledge, it was perjury. ’ ’
Then without quoting further from the brief, the sender of this dispatch says: “Mr. Bowers’ claim that attorney Brown committed perjury is based on section 101 of the penal code, which says: ‘An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false.’ ” Evidently Bowers did not use this.language in the heat of passion in an oral argument but committed it to writing deliberately on January 11, 1904, over a month after the hearing on the 7th of December, 1903.
Obviously he considered it matter of serious weight. Now, what fact is stated that robs this charge of perjury of its infamous character? Does the reference to section 101 of the penal code have any such tendency? We think not. It rather accentuates his position. What would the ordinary reader gather from
The question is what was the apprehension of-those who read this charge. In Eckart v. Wilson, 10 Serg. & Rawle (Penn.) 44, the slanderous words were, “You have killed Bob Waters; you have poisoned him and I can prove it,” and it was sought to show as a defense that Waters was still alive, but it was rejected. Afterwards, in Deford v. Miller, 3 P. & W. (Pa.) 103, perjury was assigned on a publication stating that plaintiff had filed his affidavit in the court which had become a public record to which there stood opposed the oaths of two respectable men, and saying, “In law it would be called perjuryThe defense was that the alleged oath was made before the prothonotary in vacation in a matter not determinable before him, and it was insisted it could not be perjury because the oath was extra-judicial, but Chief Justice Gibson, referring to Eckart v. Wilson, said: “In that case, the plaintiff had been charged with the murder of a living man; in this, he has been charged with perjury in an extrajudicial oath; in the one, the commission of the crime
The charge of perjury is actionable per se, and there is no statement of attending circumstances in this publication which show or tend to show said charge was unfounded, and accordingly it must be held that this assignment of defendant is not well taken.
In Trimble v. Foster, 87 Mo. 49, the slander was: “He is a thief; he is a d— thief.” The answer was an admission of the speaking of the words, but denied that they were spoken falsely and maliciously for the purpose of slandering plaintiff, but because he believed that plaintiff had been guilty of stealing his property. For a more specific answer he states he .purchased of plaintiff a farm and plaintiff delivered him possession thereof and prior to speaking the words “the plaintiff unlawfully, and without the knowledge or consent of defendant, entered upon said land, and, by force, took and carried away and converted to his own use, fixtures belonging to said land, and the property of defendant and then in defendant’s possession, to-wit: one sidewalk running from the dwelling house on said premises to the privy; also a brick mound, built up in the front yard of said premises for flowers; also, two large grain bins or cribs, which were located in, and a part of, the barn; also, a lot of manure and other things belonging to defendant by reason of the purchase aforesaid and of great value.” Of this answer, this court held it was not a plea of justification but only in mitigation. Said the court: “If words spoken amount, of themselves, to a charge' of larceny, yet if accompanied with a specification of acts upon which the charge is based, which show that no such crime was committed, the party of whom the words were spoken has no cause of action. As, if the words relate to the taking of property not a subject of larceny, they
Hall v. Adkins, 59 Mo. 144, was an action for slander. The plaintiff was a lessee of certain land from defendant. By tbe terms of tbe lease tbe plaintiff and bis co-lessee were to raise a crop of corn on tbe land and were to pay defendant $475 in money on or before January 1, 1873, or before that time if tbe crops were sooner sold, “the crop to be security for tbe payment of said sum, and to be gathered and penned on tbe premises on or before December 1st, 1872.” The defamatory words were, “He is stealing my corn; Aaron Hall stole my corn and is swindling me, and tbe neighbors are helping him do it.” Tbe defendant admitted speaking tbe words charged, denied they were maliciously spoken and pleaded in justification tbe truth of tbe words spoken, and in mitigation of damages, the facts and circumstances relied upon to constitute said stealing and a reference by him to such facts and circumstances at tbe time' of speak • ing tbe words. Reply denied tbe facts relied upon to constitute tbe larceny and averred no explanation was made by defendant at tbe time they were spoken and no reference made to such facts and circumstances. The testimony tended to show that plaintiff and defendant bad an interview in.which plaintiff proposed
If the publication had been a full and fair report of the proceedings before the Governor of New York (which it is not) with the explanation of General Crow and Judge Harvey that the affidavit of plaintiff did not constitute perjury under the laws of Missouri, where it was made, there might he merit in the contention that the antidote went with the poison, but the facts of Hall v. Adkins differ so radically from those in this case, that it constitutes no authority for the publication in this record.
Defendant’s proposition of law is well enough and we need not go beyond our own decisions for it, but the facts of this case do not make that law applicable here. The charge of Bowers was that plaintiff had committed perjury pure and simple and defendant reproducing the charge says that ‘ ‘ Bowers in his brief openly charges attorney Brown with deliberate and criminal perjury,” and the antidote now relied on is that Bowers’ claim that it was perjury is based on section 101 of the penal code which says:-“An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false.” Instead of a statement of facts and circumstances which would have demonstrated it was not perjury and could not be, a citation of a section of a penal code is cited which tended to show Bowers’ contention was well grounded in law. In other words, it emphasizes the charge of perjury.
III. But it is insisted it was a privileged report-of a legal proceeding, fairly and impartially made, without malice and therefore not actionable. As already said, the publication upon which this action is based is not and does not purport to be a fair and accurate report of the proceedings before the Gov
“ ‘ZIEGLER’S LAWYER CALLS BROWN LIAR.
“ ‘accuses him oe PBRJUBY.
“ ‘Declares if Missourian Visits New York He Will Be Arrested.
“ ‘Insists Cole County Prosecutor Made Affidavit He Knew Was False.’
“Such headlines were not privileged matter at common law, and were libelous remarks or comments, if the matter could be deemed otherwise privileged. An inspection of them would seem to be sufficient to demonstrate this fact. ‘Their publication in this manner was certainly equivalent to a remark or comment unnecessary to a fair and truthful report of judicial proceedings, and likely to raise inferences highly detrimental to the character and standing of the one about whom they were.printed and published.’ [Dorr*689 v. United States, 195 U. S. 138.]” In-this case the headlines, so far as they affect plaintiff, were, “Attack on Attorney Brown. Baking Powder Magnate’s Lawyer in Ms brief openly charges Missouri prosecutor with perjury.” If the headlines in Brown v. Globe Printing Company were not privileged, and we hold they were not, by the same token these headlines are likewise not privileged, and they fall within the condemnation which the law visits upon such unauthorized comment under the claim that they were but a fair report of judicial proceedings. [Hayes v. Press Co. Limited, 127 Pa. St. 642.] In addition to these headlines, the publication contains in its body in large capitals the words, “CHARGE OF PERJURY” and “KNEW IT WAS UNTRUE,” and these sensational headings thus interspersed in the article were equally beyond the privilege of the defendant as a publisher.
But there is another equally potent reason why the publication in question was not one of privilege. In Brown v. Globe Printing Co. the authorities, both English and American, are collated, to the effect that it does not follow that because counsel may willfully speak in. court as he believes or is instructed, therefore he may publish his speech through the press. [Saunders v. Mills, 6 Bing. 213; Rex v. Creevey, 1 Maule & S. 273; Com. v. Godshalk, 13 Phila. 575; Com. v. Culver, 2 Pa. L. J. 362; Flint v. Pike, 10 E. C. L. 380; Rex v. Lord Abingdon, 1 Esp. 226 ; Hotchkiss v. Oliphant, 2 Hill 510.]
In Brown v. Globe Printing Co., supra, Burgess, J., says: “While words reflecting on the character of an individual, spoken or written in due course of a judicial or quasi-judicial proceeding, if pertinent to the subject of the inquiry or relevant to the issue, or in a legislative assembly, by a member thereof, in the discharge of his official duties, are privileged, this
IV. It is insisted by the defendant that the court erred in refusing the 10th instruction requested by the defendant, which is in these words: “Under the laws of Missouri it is no offense simply to make an affidavit to the matter of fact, even though the person making it had no knowledge of the fact, and even though the statement of his affidavit was not in accord with the actual fact, and to- constitute an offense under the laws of Missouri the affidavit must be willfully and corruptly and. falsely made, and if the article complained of does not charge, according to its natural import, the plaintiff with willfully, corruptly and falsely making the affidavit in question, then the article is not libelous and your verdict should be for the defendant.”
The pith of this instruction seems to be that unless the defendant charged the plaintiff-with willfully, corruptly and falsely making the affidavit in question then the article is not libelous; that the words “deliberate and criminal perjury” and “perjury pure and simple” “in swearing to facts which plaintiff knew were untrue when he made the affidavit” were not a sufficient charge of perjury so as to be actionable. We are entirely unable to- agree to this contention. Words charging another with a commission of a crime as heinous as perjury are actionable although they do not set forth the particulars of the offense in language necessary to make a good indictment. In 18 Am. & Eng. Ency. Law (2 Ed.), 989', it is said: “To render words actionable it is not necessary that they should describe the offense with that precision with which it is necessary to set forth an offense in an indictment, and it is well settled that • if the words used to express the
V. It is insisted the court should have directed the jury to find for the defendant. It will be remembered that the defendant in its answer admits it made the publication complained of, but denied making the same with malice or ill-will and sought to justify upon the ground of privileged publication. The publication charged the plaintiff with the commission of a felony, to-wit, perjury. We have already held that it was not privileged and was libelous per se. In McIntyre v. Bransford, 17 S. W. 359, the Court of Appeals of- Kentucky said: ‘ The falsity of defamatory words is presumed, because the law will not presume misconduct in a person. If libelous per se, malice is also presumed; and if defendant pleads their truth, he must prove it, or, in the absence of any other defense, respond in damages, at least to some extent; If, how
VI. Error is also predicated upon the giving of the 12th instruction, which was as follows: “The court instructs the jury that all matters defamatory of plaintiff in the publication complained of (as defendant has not in its answer relied on their truth as a defense) will be deemed by the jury in making its verdict as false and untrue as respects plaintiff.” The conten
VII. The second instruction given by the court of its own motion is also assailed. That instruction is in this form: “If the jury find from the evidence that the defendant published the article complained of in
In Buckley v. Knapp, 48 Mo. l. c. 162, it was held by this court that “in all actions of tort, whether for assault and battery, or for trespass or libel or slander, where there are circumstances of oppression, 'malice or negligence, exemplary damages are allowed, not only to compensate the sufferer, but to punish the offender.” The learned counsel for defendant says that “gross negligence may he the occasion of punitive damages, hut mere negligence never is.” In Reed v. Western Union Tel. Co., 135 Mo. 671, it was held that the distinction between negligence and gross negligence does not exist in this State. In McPheeters v. Railroad, 45 Mo. l. c. 26, this court said: “There is no difference between negligence and gross negligence, the latter being nothing more than the former, with the addition of a vituperative epithet.” The authorities on this subject both English and American were fully considered in Reed v. Tel. Co., supra, to which reference is made. A reading of the instruction, we think, will itself answer this objection. It was given in behalf of the defendant and told the jury that “if the defendant published the article complained of in good faith believing it to be a proper item of news and a part of the report of occurrences in the matter of the Ziegler extradition and without malice or ill-will towards the plaintiff and not negligently or in wanton disregard of plaintiff’s rights, then there could he no exemplary damages.” We think the defendant has no cause to complain of this instruction. The charges of perjury and knowingly making a false af
VIII. Defendant insists that the verdict is plainly the result of passion and prejudice and is excessive. The allegation of the petition was that plaintiff, by the said wrongful acts and conduct of the defendant, has been greatly injured and damaged in his good name and reputation and his feelings and estate, and in his relation as attorney at law and otherwise in his business pursuits and vocation. And the court instructed the jury that if they found for the plaintiff they would allow as actual or compensatory damages such sum as would fairly and reasonably compensate him for all mental suffering and humiliation suffered by him by reason of the publication of the article aforesaid, and naturally and directly caused thereby, and for all injuries to his good name and reputation naturally and directly caused by said publication. The prayer of the petition may be considered as one for general damages. The action for libel is one to recover damages for injury to a man’s reputation and good name; it is not necessary in order to recover general damages for words which are actionable per se, that the