222 Mo. 556 | Mo. | 1909
This cause is here by appeal from a judgment of the Buchanan County Circuit Court, in favor of the plaintiff.
This is an action for libel and is based upon a letter written by the appellant at St. Louis, Missouri, addressed to one Clint Hull at St. Joseph, Missouri, dated December 22, 1904, containing as alleged in the petition, several false, scandalous, malicious and defamatory matters of and concerning the respondent ,in his business. It is also alleged in the petition that appellant on the same date wrote and mailed the same letter to a number of other persons at St. Joseph, Missouri, containing, as alleged, the same libelous matter. The petition charges libel in the usual form, based
The answer of appellant admitted that the letter charged was written and mailed to Clint Hull, as well as other members of the Royal Fraternal Union at St. Joseph, and alleges that it was not mailed to any one else or otherwise published. It is denied that the letter was libelous and the innuendoes of the petition are denied. In defense, the truth of the letter is pleaded, and appellant further pleaded that it was a privileged communication. Appellant alleged its good faith in writing and publishing the letter.
The appellant is a fraternal beneficiary association incorporated under the laws of this State, with headquarters at St. Louis. Holmes was a member of the association, and for two years prior to the publication of the alleged libelous letter was employed by the association in soliciting members, organizing subordinate councils and taking applications for beneficiary certificates or policies.
The letter written by the association to Clint Hull, O. B. Peasley and others, at St. Joseph, Missouri, of and concerning respondent as its agent, dated December 22, 1904, is as follows:
“Dear Sir and Brother: You are hereby notified that we have canceled the authority of our former representative at St. Jo.e, Mo., Mr. R. A. Holmes, to represent this order in any manner whatever. He is not authorized to take applications or to collect or to receipt for dues. Mr. Holmes has not remitted to this office any of the collections that he has made at St. Joe for the last two months; while he has reported to us the names and amounts collected he has failed to remit the money he has collected, due the order, so you are advised not to make any more payment of dues to Mr. Holmes, as he has no authority to collect dues or receipt for payments made to him. As we had advised you to make your payments to Mr, Holmes, we*561 have credited you and the other members at St. Joe, with all the payments they made to him and stood the loss ourselves.
“We have arranged with the firm of Hull & Chittenden, at No. 610 Edmond street, St. Joe, Mo., to take care of the collections until some other arrangements can be made. They have the collection list in their office and are authorized to receipt for monthly dues. If it is more convenient for you to remit your dues direct to the home office than to pay to them you are at liberty to do so, but in either event the payment must be made on or before the last day of the month. Please call at their office and make your payment to them at your earliest convenience. Kindly keep in mind that it will be necessary for you to go to the office of the above firm (Hull & Chittenden) to make your payments — they will not send a collector to your home. We regret exceedingly that it has become necessary to cancel Mr. Holmes’ authority and we hope you and the other members at St. Joe will appreciate the situation and retain your membership in the order. We will endeavor to secure an active agent at St. Joe as soon as possible.
“With best wishes, I remain,
“Fraternally yours,
“F. H. Pickrell, President.”
In December, 1902, respondent was employed by the association by a written contract to act as its agent, with territory in the State of Kansas. Under the provisions of this contract he was to receive as full commission for all services rendered, all the first payments collected at the time of taking applications, and in addition thereto the third, fifth, seventh, tenth and twelfth assessment received at the home office on business written by Holmes, or agents appointed by
Respondent also claimed that in addition to the commission provided in each, the first and second contracts, he was further entitled to ten per cent for collecting. In the early part of 1904 he began to retain ten per cent in addition to the forty per cent allowed under the contract, on all collections. This act the association demurred to and wrote him that he was not entitled to the extra ten per cent, but he continued to deduct it from his collections, and also deducted at least one “skip” payment to which he was not entitled. The last remittance made by respondent of his collections to the association was in November, 1904. From that remittance he not only deducted forty per cent under the contract, but deducted thirty, per cent as well, claiming that there was ten percent due him for the months of September, October and November. The association complained of this extra deduction and undertook to point out to respondent that he was not entitled to it, he maintaining that he was. Respondent also made collections for December amounting to $64.89, none of which was remitted to the association. He took the stand, that he was entitled to the money in his hands, and that he did not propose to remit any more until the association recognized his claim. Respondent testified that the association owed bim $125 or $150, but he did not make any showing in detail as to how the association owed bim any such amount. His claim for ten per cent extra commission was also determined against him by the circuit court by an instruction to that effect.
This sufficiently indicates the nature and character of the testimony upon which this cause was submitted to the jury.
At the close of the evidence the court instructed the jury in accordance with its views, upon the facts as developed upon the trial, and the cause being submitted to them they returned their verdict, finding the issues for the plaintiff and assessing his damages at the sum of five thousand dollars. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Judgment was entered in accordance with the finding of the jury, and from this judgment defendant prosecuted its appeal, and the record is now before us for consideration.
OPINION.
The record discloses that during the progress of the trial the defendant preserved numerous exceptions to the action of the court in the admission and rejection of testimony, as well as to the refusal and giving of instructions.
The legal propositions confronting us, which are disclosed by the record, may thus be briefly stated:
First. Was the letter upon which this action is predicated, and which is fully indicated in the statement of this cause, upon the trial, a qualified privileged communication?
Third. Were the statements as made in the letter substantially true, as shown by a large preponderance of the evidence?
I.
Manifestly the circuit court reached the conclusion from an inspection of the letter, which forms the basis of this suit, in conjunction with testimony offered, that it was not a privileged communication, either qualified or otherwise; hence, the court refused to submit to the jury the question of privilege, or the facts constituting a privileged communication, as well as the question of express malice.
Upon the disclosures of the record the first insistence of appellant is that the letter was a privileged communication, and that the evidence absolutely fails to show any express malice; hence it was the duty of the court to sustain the demurrer to the evidence. Upon this insistence the first question which confronts us is. as to whether or not the letter in question was a privileged communication, and if so whether or not it was the duty of the trial court, as a question of law in the first instance, to so determine.
In order to intelligently discuss this proposition it is necessary to briefly refer to the facts as developed upon the trial. The' testimony discloses that Holmes had been the agent of appellant for the purpose of soliciting business, taking applications and establishing agencies, for the space of about two years before their business relations came to an end by the writing of the letter in question. The correspondence introduced by both parties, much of which on the part of appellant was excluded, and improperly so if the said letter is to be treated as a qualified privileged com
The rules of law applicable to qualified privileged communications is well settled in this State. In Finley v. Steele, 159 Mo. 299, the rule as applicable to this subject was very clearly stated. It was there said: “A qualified privilege ‘extends to all communications made bona-fide upon any subject-matter in which the party communicating has an interest, or in reference to which he owes a duty to a person having a corresponding interest or duty; and to cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.’ ” And again: “ ‘The proper meaning of a privileged communication is said to be this: that the occasion on which it was made, rebuts the inference arising, prima-facie,
It will be observed that the defendants in that case were members of a school board. The action against them emanated from a written charge made by the school board and-filed with the school commissioner, which contained words of a defamatory character, and would have been otherwise libelous had it not been, as held by the court, a privileged communication, and there was no proof offered by the plaintiff of express malice.
In Wagner v. Scott, 164 Mo. 289, the plaintiff, Wagner, was chief engineer of a number of electric light companies. The president of one company wrote the president of another company, making charges against plaintiff’s personal and professional standing. It was ruled in that case that the letter was defamatory and libelous, but that it was a privileged communication. It was further held that the evidence justified submitting to the jury the question of express malice, which, if it existed, would overcome the qualified privilege, and that therefore the court erred in nonsuiting the plaintiff. In the discussion of the law applicable to that case the court announced the legal principle that whether in a particular case a publication is deemed to be privileged, that is, whether the situation of the party making it and the circumstances attending it, were such as to rebut the legal inference of malice, is a question of law to be determined by the court in the first instance, and applying the principle of law stated to the plaintiff’s evidence as it appeared
A careful analysis of the discussion by the court in the case last cited of the legal principles applicable to privileged communications, makes it plainly manifest'that the nature and character of the charges contained in the publication are in a large measure controlling, when the point is reached for the determination as to whether the situation of the parties making the charge and the circumstances attending it, were such as to rebut the legal inference of malice. In other words, in the determination of that question, as was ruled in the case of Wagner v. Scott, supra, the exigencies of the situation are to be taken into consideration as to whether or not they warranted the charges made in the publication for the protection of the interests the defendant may have had under his control, or whether or not the language used in such publication under the circumstances was warranted, and was the language employed in such publication of such a nature and character as to indicate an abuse of such privilege.
It has been held in other jurisdictions that a statement by a stockholder to an officer of a corporation that a certain employee was a perjurer and a black
Communications which would otherwise be actionable, would be privileged, if made in the course of an investigation of the conduct or -character of one if its officers or members of a quasi-judicial body, such as a voluntary society, since a member by accepting a membership voluntarily submits himself to the jurisdiction of the association so long as it acts-within the scope of its authority. [10 Am. and Eng. Ency. of Law (2 Ed.), p. 1035.] This rule has been applied to a lodge of Odd Fellows as well as a medical society.
Learned counsel for respondent very fairly, as well as clearly and correctly, stated in their brief the requirements of the law applicable to this subject. They say: “To give the words complained of the character of a qualified privilege it must appear that they were written by the defendant association in the discharge of some duty, public or private, legal or moral, and with the end or purpose in view, or in the conduct of some matter involving its interest, and that they were written for the protection of that interest, and that they were relevant and proper in that connection. It must also appear that they were uttered in good faith, and mad.e on a proper occasion, from a proper motive, based upon a probable cause and in the honest belief that such statements were true.” In our opinion this is a fair and full statement of the requirements of the law, and if the evidence disclosed by the record meets these requirements, it logically follows that the letter in question was a privileged communication. This confronts us with the inquiry as to whether the letter written by the association was in the discharge of some duty, and did. the subject and matter upon which the letter written was predica
After a most careful consideration of all the evidence and the showing made of the extremely courteous and kind treatment awarded respondent by the association throughout all their business relations, we see no escape from the conclusion that the letter .complained of and upon which this action is based, was a qualified privileged communication; and in the absence of a showing of at least some sort of express malice, the trial court should have sustained appellant ’s demurrer to the evidence.
II.
Having reached the conclusion, as herein indicated, that the letter which is the basis of this action was a qualified privileged communication, and should have been so treated by the trial court, then under the well settled rules of law as applicable to the proposition now under discussion, before the plaintiff was
In Finley v. Steele, supra, this court referred to and quoted approvingly from Byam v. Collins, 111 N. Y. 143, and Klinck v. Colby, 46 N. Y. 427. The rules of law as applicable to the subject now under discussion were very clearly and tersely stated in those cases. It was said: “A libelous communication is. regarded as privileged, if made bona-fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, although it contains criminating matter which, without this privilege, would be slanderous and actionable ; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation. In speaking of the proper meaning of privileged com
In Massachusetts it was held that “the question whether in a particular case a publication is to be deemed privileged, that is, whether the situation of the party making it and the circumstances attending it were such as to rebut the legal inference of malice, is a question of law to be determined by the court in the first instance.” [10 Am. and Eng. Anno. Cases, p. 1153.]
In Wagner v. Scott, 164 Mo. 289, this court, speaking through Judge Brace, quotes the rule as announced by the Massachusetts court, and following such quotation says: “The sole duty of the court, therefore, in such cases, is to determine whether the occasion, in the absence of actual malice, would justify the publication. If so, then it is incumbent upon the plaintiff to prove the_ existence of malice in order to sustain his action; and this must be shown to the satisfaction of the jury.”
Our attention is directed to the case of Sullivan v. Com. Co., 152 Mo. 268, where it was held by this court that the circuit court erred in holding that the communication complained of was privileged, and that the occasion did not justify the terms employed. But it must not be overlooked that the terms employed in the communication forming the basis of the action in
After a thorough examination and consideration of the authorities applicable to the propositions involved in this case, we find that the weight of authority holds that where a libelous communication or writing is alleged to be privileged, it is incumbent upon the court to determine this question in the first instance. The burden of showing the privileged character of such communication rests with the defendant. If in the judgment of the court the communication is a privileged one, then the burden of proof shifts to the plaintiff, and in order to entitle him to recover, it is essential that he show actual or express malice, and if upon such showing there is no substantial evidence of the existence of actual or express malthen it is the duty of the court to sustain the demurrer to the evidence.
We have indicated the controlling legal principles applicable to cases of this character, and the next question which confronts us is as to whether or not the evidence as disclosed by the record substantially tended to show the existence of actual or express malice.
We have read in detail all the evidence developed upon the trial of this cause, and in our opinion, consideling in detail all of the testimony disclosed by the record, it absolutely fails in any sort of a substantial way to show malice upon the part of the fraternal association in the writing of the communication upon which this action is based. On the other
The language in the letter in the case at bar must not be confounded with the language used in a number of other cases to which reference has been made. In this letter there was an entire absence of any abusive language or any grave charges made against the plaintiff, and we are unable to see, under the conditions surrounding the fraternal association, how a communication could have used less-pointed terms in order to effect the purpose of protecting the interests of the association. The officers administering the affairs of the defendant association had always treated plaintiff courteously, and in fact made efforts to amicably settle the -dispute that had arisen about the collection of dues under the contracts with the plaintiff. Prior to the writing of the letter the president and other officers in the chief office made a thorough investigation of the account of the respondent, and the books disclosed that he was indebted to the association in the sum of $127.99: The plaintiff refused to remit certain moneys collected for December, 1904, and part of the money collected for November, 1904; this is practically conceded. Again, it must not be overlooked that the record discloses that the plaintiff had threatened to bring suit against the association and take two-thirds of the St. Joseph membership from it when he left. The record also discloses that this fraternal association proceeded in an orderly and business-like way, in perfect accord with the contract between it and the plaintiff, to cancel the authority of respondent’s agency. The letter complained of was sent exclusively to the members of the order at St. Joseph, and informed them of the cancellation of plaintiff’s agency, with the. additional information that he had failed to remit
The trial court seems to have treated the letter upon which this action is predicated as libelous per se, and in accordance with such views so instructed the jury. This, in our opinion, was a misconception of the nature and character of such letter.
Under all the facts and circumstances disclosed by the record we are of the opinion that the causes which induced the association to write the letter complained of, were reasonably sufficient to inspire the honest belief on the part of the officers administering the affairs of such association that it was essential to write the communication, embracing therein the statements made for the purpose of protecting the interests of the association. Considering the entire record, in our opinion, this letter was written without malice and in good faith, based upon a reasonable cause, and the trial court should, at the close of the case, have sustained the demurrer to the evidence which was interposed by the defendant.
III.
The conclusions reached upon the first and second propositions, as herein indicated, render it unnecessary to discuss at any length the third proposition, predicated upon the allegations in the answer that the statements embraced in the communication were true.
As heretofore stated, the evidence in this case is almost conclusive of the fact that respondent was indebted to the appellant; in fact it is practically conceded that he did not remit to the association the collections made by him for the month of December, 1904,
Plaintiff largely based his right to retain these collections upon claims which he made for further “ship” payments, as they were termed, and for an additional ten per cent commission on collections. Both of these claims were rejected by the circuit court, and we think properly so, for the reason that they were directly in conflict with the provisions of both contracts entered into between the plaintiff and the association.
We have given expression to our views upon the legal propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be reversed.