113 Mo. App. 216 | Mo. Ct. App. | 1905
(after stating the facts). — The statement of what a libel is, contained in the instructions of-the trial court, was accurate as far as it went and sufficiently broad for the purpose of this case. [Nelson v. Margrave, 10 Mo. 648; McGinnis v. Knapp, 109 Mo. 131, 18 S. W. 1134.] Whether the article in question was a libel within the meaning of the word as defined by the court, was left to the jury; and it is of this ruling rather than the definition itself, that complaint is made. The defendant’s counsel insists nothing in the article was libelous — that 'it charged the Farley mentioned with doing only lawful and commendable acts; that is, assisting to move street cars for the convenience of the public against the opposition of striking crews who would obstruct transit. If this were the sum of the article, we would accept counsel’s proposition. Under our laws regulating the rights of employers and employees, it could not be held libelous to charge a person with aiding to carry on any lawful business which had been interrupted by a strike of the operatives depended on to keep it going. But the learned counsel leaves out of sight other portions of the article which are clearly'libelous in themselves and without the use of innuendoes
The contention is preferred that none of the statements in the article is actionable per se, because none of them imputes a crime, or affects the person referred to in his occupation, or falls within any of the classes of actionable words. Therefore, it is argued that as no special damage was proved, plaintiff failed to make good his case. This argument would have merit if the action were for slander instead of libel. By statutes and decisions the law has affixed an actionable quality to certain spoken words and denied it to others. That is to say, unless the words complained of as slanderous fall within one of the classes which are made actionable in themselves, a plaintiff must prove he sustained
The point in the present case which calls for discussion is not the libelous character of the published article, but Avhether it referred to the plaintiff in such' sense that the defendant is answerable in damages to him. It is contended that the article meant, not James Farley, the plaintiff, but a different individual of that name, not a resident of St. Louis, who Avas connected with the Chicago street railway strike in 1903, and with various other street railway strikes at other times and in other cities, and Avhom all the circumstances pointed^ to as the person intended, to the exclusion of the plaintiff; wherefore, it is said to be apparent that, libelous or not, the article was no libel of the plaintiff and he
In Jones v. Murray, 167 Mo. 25, 49, 66 S. W. 981, our Supreme Court said the sum of the laAv is that if the publication was false and the plaintiff has suffered actual damages, he is entitled to recover such damages, no matter hoAV innocently, or Avith AArhat purpose, intent or motive the defentant acted. But if the defendant acted in good faith and Avithout malice, that fact Avould mitigate the damages. The same propositions Avere announced in the thoroughly considered case of Root v. King, 7 Cow. (N. Y.) 613, 633. The courts have said frequently that the law looks at the tendency and, consequence of the publication, not at the intention of the publisher; and that the absence of malicious intent] Avill not avail the defendant as an excuse. [Haire v. Wilson, 9 B. & C. 643; Fisher v. Clement, 10 B. & C. 472; Wenman v. Ash, 13 C. B. 845; Huntley v. Ward, 6 C. B. n. s. 514.] And so the standard text-writers say. [Odgers, Libel and Slander (4 Ed.), 319; Newell, Slander and Libel (2 Ed.), 901.] What is meant by malice in these actions is that the publication of the false matter was without iawful excuse; or, to present the rule in a perfectly definite and intelligible form,
The deepest doubt we have had in this case is as to whether the defendant is liable, in any event, for injury done by mistake, or only if it failed of ordinary care; that is as to whether it was entitled, under the instructions, to a finding on the question of its exercise of reasonable care in publishing the picture. This question need not be decided; because the defendant’s requested instructions called for a verdict in its favor, not on a finding that it used ordinary care to learn whose picture it was about to publish, but merely on a finding that the picture was intended to represent some one else than plaintiff. This is not the law. It could and did represent no one but the plaintiff and defendant was responsible for putting plaintiff in a false light; at/least, unless it did everything that, in reason, it ought to have done to prevent the mistake. y
In Davis v. Marxhausen, 86 Mich. 281, a newspaper in Detroit had published that Michael Davis, residing at 311 East Columbia street, had been arrested for theft. A man by that name had been arrested for theft, but he was a different person from the Michael Davis who lived at the number stated. The latter instituted an action for libel and lost his suit in the lower court on an instruction that he must prove he was the person designated in the publication. It was held on the appeal that, as his name and residence were both given, he was so precisely designated that there was no question of the kind to be submitted; that the libel consisted in refer
Decisions of a contrary import can be found. In Hanson v. Globe Newspaper Co., 159 Mass. 293, it was held by an eminent tribunal that where a mistake occurred in the name of a party accused in a newspaper of having been arrested for a crime, he was not libeled. That ruling was sanctioned by a bare majority of the judges and there was a vigorous dissenting opinion which is approved in the note in 20 L. R. A. 856, and seems to us more in harmony with the law generally and especially as expounded by the Supreme Court of this State. We have found no decision outside its jurisdiction which gives the majority opinion much countenance, but there is another Massachusetts case somewhat analogous. [Smith v. Ashley, 11 Met. 367.]
It is said in numerous cases that the plaintiff must prove the libel or slander was uttered of him. [Baldwin v. Hildreth, 14 Gray 221.] We think this fact was proved in the present case in the sense the rule means, namely; that the article referred to the plaintiff. It was not necessary to show he would have been referred to had the editor understood all the facts. The proposition is' maintained generally that though the publication of a libel was due to mistake, the publisher is answerable; and we see no reason why libelling a person on account of mistakenly identifying him with some one else should be an exception. That publication of a libel by mistake is no defense to an action for the damages caused, was held, under various circumstances> in the following decisions: Shepheard v. Whitaker, L. R. 10 C. P. 502; Fox v. Broedrick, 14 Irish L. R. 453; Blake v. Stevens, 4 F. & F. 232; Loibl v. Breedenbach, 78 Wis. 49. In the first of those cases the facts disclosed were that the name of the plaintiff’s firm was published by mistake in defendant’s newspaper under the heading “First Meeting' Under the Bankruptcy Act,” when it was intended to. be published under the heading “Dis-
The judgment ia affirmed.