80 Mo. 558 | Mo. | 1883
This is an action for libel by the appellant. Judgment in the St. Louis circuit court for defendants-Appealed to the St. Louis court of appeals where the judgment was affirmed and brought here for review. The judgment of the circuit court was affirmed upon the ground that the. petition does not state a cause of action. And it will be therefore necessary to set out the petition in full which is as follows. The plaintiff complains and alleges :
1. That the plaintiff, on the 6th day of August, 1879, was, and for several years prior thereto, had been and still is an architect and superintendent, and as such was, had been, and still is carrying on the business as architect and superintendent in the city of St. Louis, and State of Missouri ; and had always, as such architect and superintendent conducted and demeaned himself with honesty and fidelity, and had never been guilty of any misconduct or malpractice in his said capacity and profession of architect and superintendent. That by reason of said capacity and fidelity, the plaintiff' in his capacity of architect and superintendent had on the 6th day of August, 1879, acquired a large and lucrative business in his profession aforesaid, and enjoyed the confidence of the best citizens and business men of the city of St. Louis, an'd, but for the grievances hereafter complained of would still have enjoyed the same.
2. That on or about the 8th day of August, 1879, and on divers other days, thereafter and before the bringing of this suit, the said defendants, in the city of St.
State of Missoubi, \
City of St. Louis, j '
Be it remembered that on this 6th day of August, 1879, personally appeared before me the undersigned a notary public within and for the city and state aforesaid, duly qualified for a term expiring January 8th, 1882, Anthony C. Dunleavy, who being by me duly sworn, on his oath deposes and says that heretofore, to-wit, on the 1st day of June, 1873, he was a member of the firm of John E. Oxley & Co., doing business in the city of St. Louis; that said firm on said date, made a proposition to do the galvanized iron, tin and copper work, on and about a certain public school building in course of erection, at Litchfield, Illinois, of which building one, J. B. Legg, of St. Louis, was, supervising architect, and the deponent further says that said J. B. Legg promised John E. Oxley, the other member of said firm of John E. Oxley & Co., to give said firm the contract for said work on the building aforesaid, provided the sum of $200 was paid to him, the said Legg, as com-missions by the said firm of John E. Oxley & Co., the said John E. Oxley agreed to pay said amount to said Legg, and informed this deponent of said agreement, and the said sum of $200 was afterwards paid by this deponent to said J. B. Legg according to said agreement, the last payment of $100 being made by this deponent to J. B. Legg on the 9th day of June, 1873, and further this deponent says not.
A. C. Dunleavy.
Sworn and subscribed before me this 6th day August, A. D. 1879.
August Aheens, Notary Public, City of St. Louis.
[L. S.]
4. The said publication was false and malicious and by means thereof, plaintiff hath 'Jbeen and is greatly injured, prejudiced in his reputation aforesaid, and has, also, lost and been deprived of great gain and profit, which would otherwise have accrued to' him in his said profession and business of architect and superintendent, to-wit, $50,000.
Plaintiff says he is damaged in the sum of $50,000, for which and costs, he demands judgment.
The answer is 1st, A general denial; 2nd, Justification ; 3rd and 4th, That the publication was privileged. There was judgment for defendant.
I. The first point made by the respondents is that the petition does not state a cause of action. If this be true it is an end of the case and it will not be necessary to look further into it. As far back as 10 Mo. 648, in the case of Nelson v. Musgrave, Judge Napton quoted with approval the definition of libel from Judge Parsons in Commonwealth v. Clapp, 4 Mass. 168, which is as follows: “ A malicious publication expressed either in printing or writing, or by signs or pictures, tending to either blacken the memory of the dead, or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule.” This definition was again approved by Bliss, J. in Price v. Whitely, 50 Mo. 439. In what manner does the affidavit of Dunleavy, set out in the petition, blacken the reputation of the plaintiff? It in substance alleges that plaintiff was supervising architect of a certain building and defendants paid him a commission to give defendants the contract for certain work thereon. Suppose that was true, how would it show that plaintiff was degraded or brought
ll. The words set out in the petition not being libelous per se and, therefore, not actionable, it becomes necessary by prefatory averments to set out the extrinsic matter which will render them so. McManus v. Jackson, 28 Mo. 58. In Bundy v. Hart, 46 Mo. 460, Bliss, J. says: “Indeed I have never heard the general principle doubted that where words are charged that are not actionable without a knowledge of some extrinsic fact it is necessary to set forth that fact by way of preliminary averment.” If this is not done there is no cause of action shown. These necessary extrinsic facts being averred must be proven. “ Innuendoes are used to so connect the words charged with the avei'-ments as to make the petition a logical and complete statement of the plaintiff’s case.” The same doctrine is announced in Carry v. Collins, 37 Mo. 324; Church v. Bridgman, 6 Mo. 190; Dyer v. Morris, 4 Mo. 214. Where the words are not actionable in themselves extrinsic facts and matters must be stated which shall render them so. In Caldwell v. Raymond, 2 Abb. Pr. Rep. 193, the libelous words were “ Married, Joseph W. Caldwell to Miss Elizabeth Ehle late of New York” meaning a public prostitute by that name; thereby intending to charge that said plaintiff
This petition does not contain the necessary averments of extrinsic matter and for these reasons the judgment of the court of appeals is affirmed.
