90 Mo. App. 439 | Kan. Ct. App. | 1901
This is an action for libel. The libelous article complained of was published in the Macon Republican, a newspaper of which defendant was the editor and proprietor. The petition alleged that plaintiff had been for many years a practicing lawyer in this State; that he was one of the county judges of Macon county from 1869 to 1873; that he had been city attorney of the city of Macon for twelve years, and that he was a delegate to the national Republican convention in 1888, front this State. The said newspaper article was set out in its entirety in the petition.
The article contained three distinct libelous charges. One related to the plaintiff in his quality as a private individual; another to him as an attorney at law; and still another as a public officer. The words of each of these were libelous per se, and were made the foundation for separate counts, so that the petition contained three counts and a, like number of causes of action. Each count was in form ex delicto.
Under our statute, where there is but one cause of'action, and where only one recovery can be had, the plaintiff may state it in different counts, for the purpose of so varying the form of the statement as to meet any possible state of the proof. Brinkman v. Hunter, 73 Mo. 172; Roberts v. Railway, 43 Mo. App. 287. A libelous publication may have a tendency to injure one in several ways. It may affect him individually, or in his profession, or in his official capacity; yet these are but items constituting the tort and for which the law gives but a single right of action. In Secor v. Sturgis, 16 N. Y. 548, it was said that, in case of torts, each trespass, or conversion, or fraud, gives a right of action and but a single one, however
In the present case, the plaintiff did not state his cause of action on the libelous article in different counts, but split the same into three parts, making each part the basis of a separate cause of action. There is a distinction to be noted between stating a single cause o'f action in different \vays, in separate counts, and in so dividing it as to make it the basis of three distinct causes of action and three recoveries. This is the objection to the plaintiff’s petition instead of that alleged in the defendant’s motion to require plaintiff to elect on which count he would proceed to trial. There was no mingling in the petition of the averments of incongruous and inconsistent matters as the defendant seems to have supposed. It may be that, after the return of the verdict, the plaintiff having entered a remittitur as to the amount found by the jury for him on the second and third counts, the defendant was not prejudiced by the plaintiff’s improper manner of pleading his cause of action. But since we shall, for the error hereinafter mentioned, reverse the judgment, we suggest, before another trial of the cause takes place, that the plaintiff reform his petition so as to make it conform to the views which we have expressed.
In Edwards v. Printing Company, 99 Cal. 431, it was in substance declared, that the mere belief of the editor of a newspaper in the justice and truth of an attack which he makes upon the private character of a citizen, is no defense to an action brought by the person assailed, for the damages sustained by such attack; nor can such belief be considered in mitigation of damages, unless it is shown to have been based upon information derived from a reliable source. It must be'shown that the charge was only made after due investigation of the matter to which it relates. If any such information be received, it is important to state the name of the informant, so that the jury might judge whether his character was such that the defendant might reasonably place reliance in his statements. And to like effect are Bronson v. Bruce, 59 Mich. 475; Morey v. Association, 123 N. Y. 207.
Defendants may prove a general report of the truth of the words spoken, in mitigation of damages, hut not in justification. Nelson v. Evans, 1 Dev. (N. C.) L. 9; Calloway v. Middleton, 2 A. K. Marsh, Ky. 372; Witherbee v. Marsh, 20 N. H. 561; Hillman v. Shanklin, 60 Ind. 424; Turner v. Foxall, 2 Cranch C. Ct. 324. Previous reputation in respect to the crime charged by the words, may be considered in mitigation. Maxwell v. Kennedy, 20 Wis. 645 ; Mahoney v. Belford, 132 Mass. 393; Young v. Bennett, 4 Scam. (Ill.) 43. So, where plaintiff alleges an injury to have been occasioned by slanders affecting his character in any particular respect, it would fairly tend to mitigate his damages if it were shown that at the time.of the utterance of the slanders alleged, his general reputation, in that respect, ivas already had. And as he is expected'to be always ready to defend his general character, so, also, he should be ready to defend it in reference to the matter wherein he alleges it to have been wrong
The authorities all agree that proof of the bad character of the plaintiff, at and before the time of the alleged slander, is admissible in mitigation of damages, whether exemplary or compensatory; but they disagree as to whether proof of the existence of a general report that the plaintiff had actually committed the particular offense of which defendant accused him, or any similar offense, is admissible. Odgers on L. & S., 320; Newell on D. S. & L., 890. It is stated in Odgers on Libel and Slander, 305, 306, that the following nisi prius decisions, holding that evidence of a general report that plaintiff had actually committed the particular offense charged by the slanderer, was admissible, must be considered bad law. Earl of Liecester v. Walter, 2 Camp. 251; Richard v. Richard, 2 Moo. & Rob. 557; Chalmers v. Shackell, 6 C. & P. 475; Knobell v. Fuller, Peake’s Add. Cas. 139.
The defendant further objects, that the court erroneously refused his instruction (no number), which told the jury, that “a privileged communication is one which is written and published in reply to former attacks by the person against which it is written, and the editor and publisher of a newspaper is entitled to the same privilege in publication the author would have, and if the jury believe from the evidence that said article was a reply by the author, then they will find for the defendant.” The publication of which plaintiff complains appeared in the- defendant’s newspaper, over the signature of Mayor Hanson, and was in reply to a speech of plaintiff, before the police court, criticising Mayor Hanson, which had been previously published in the Times newspaper. This was' no excuse or privilege to the defendant. He could not step
We have examined the plaintiff’s whole series of instructions in connection with that of the defendant, and our conclusion is that the law of the case w^as fully and properly declared to the jury and that there is no just ground of complaint arising out of the action of the court in the giving or refusing of instructions.
The judgment must be reversed and cause remanded.
ADDITIONAL OPINION.
In this cause the following proceedings were had at the October term, 1901.
BROALDUS, J. — A decision of this case was made by this court on December 1, 1895, when an opinion of the court rendered by Judge Smith, the same was reversed and remanded
At the October term of this court for the year 1898, another order was made transferring the cause to the Supreme Court, “on account of one of the judges of this court deeming said cause in conflict with the case of Anthony v. Stephens, reported in volume 1 of the Missouri Reports, at page 254.” On the thirteenth day of April, 1901, the appellants filed in the Supreme Court a motion to remand the case to this court, which motion at- the April term of said court was sustained and the case was remanded. The cause was remanded to this court, presumably for the reason that under article 6, section 6, amendments to the Constitution, the order of transfer necessary to give the Supreme Court jurisdiction must be made at the same term the decision is rendered and not thereafter, and as the order was made not at the term the decision was rendered, but at a subsequent term, no jurisdiction was conferred on the Supreme Court.
At the present term of this court the appellant filed a motion to strike the cause from the docket for the reason that “an opinion was filed in this cause on the first day of December, 1895, and that the same was and ever since has been fully adjudicated, and this court has no other or further jurisdiction therein, except to order its mandate as herein