224 Mo. 617 | Mo. | 1909
— Libel. Once here on appeal from a $10,000 judgment and reversed and remanded for a new trial (Meriwether v. Knapp & Co,, 211 Mo. 199), the cause comes up again from a judgment for $6,000. There is no call to restate the facts, since the former opinion should he read with this, and they sufficiently appear there. When the case went down plaintiff stood on his old petition; hut defendant filed an amended answer eliminating matter of justification and mitigation. The gist of that answer was that it published a fair newspaper report of judicial action in a matter of public interest, viz., a change of venue in a former libel suit between the same parties. In that publication it printed, as for an item of news,, Mr. Meriwether’s petition, its own answer (containing new matter) and plaintiff’s affidavit for a change of venue, hut omitted to print plaintiff’s replication denying the new .matter. The present libel is predicated of matter contained in defendant’s answer, published as aforesaid, and the defence (as said) is that the publication was fair, impartial and made without malice, as the report of a judicial procedure, and, hence, privileged. -
Any new facts, material to an understanding of errors now assigned, will appear in the opinion.
At the present trial, plaintiff filed a reply to defendant’s amended answer, charging as malicious the omission to publish plaintiff’s reply denying the alleged libelous charges in the answer of defendant in the former case; that the publication was not a fair and impartial newspaper report of judicial proceedings in the first suit but was partial, malicious and not privileged. To sustain such issue plaintiff introduced testimony of the character reviewed in the former case,
In this condition of things it is argued that the court should have taken the case from the jury on the theory there was no proof of the charge of malice. Defendant tendered a peremptory instruction in the nature of a demurrer to the evidence. It was refused and the point was saved. Is there soundness in the point? We think not. We ruled in effect, in the former case, that plaintiff made a case for the jury on the issue of malice; that two views could be taken of. the effect of the evidence by fair-minded men, and that the issue became one of fact to be determined by the triers of fact and not one of mere law to be settled by the court. The only new evidence at the present trial was defendant’s-testimony tending to show that its omission to publish the replication was a mere inadvertence, and that it intended to publish all the pleadings. But that testimony was for the jury with the rest of it. It would not do to let a defendant’s mere disavowal of malice or assertion of inadvertence or fair-mindedness take the issue from the realm of fact and make of it a question of law to be determined by the judge. Malice, like fraud, or any other matter resting in intent, is not visible to the eye nor can it be felt by the finger. It may be deduced from any words, acts or conduct which among plain people in the common affairs of life are taken to spell ill-will,’point to a wrongful intent to wound the sensibilities, break the manly pride and self-respect of an individual and put him in
II. Citing oases to the effect that, as a mere convenient rule of practice, a reply will be deemed in where the cause was tried out on the theory one was filed, or as if one was filed, and using that doctrine as a postulate to reason from, counsel insist the replication was not material to a proper understanding of the judicial proceedings. They argue, moreover, that the question of the materiality of the replication to a full and fair publication of the proceedings was one of law for the court.
Those questions were also in the former case and were ruled adversely to defendant. „ Therefore they stand foreclosed and no longer open. When sent down for retrial on such ruling it became the law of this case, res judicata (Gracey v. St. Louis, 221 Mo. 1, and cases cited).
But if open and to be presently determined, we would rule them as we did before. The situation presented is unusual and challenges a close eye. Here was a controversy between an individual and a newspaper of high standing and great influence — the individual asserting he had been libeled, for that he was falsely charged in divers specifications bristiing with details with having an
“"Who stole the livery of the court of Heaven To serve the devil in,”
a mere whitened sepulchre full of dead men’s bones: But Meriwether quickly did what he could to set himself right and save his reputation by denying in writing the allegations of the answer and filing his denial in court. Assuming the action of the court on his subsequent application for a change of venue was such judicial procedure in a matter of public interest as would authorize the publication of the voluminous pleadings in the case, defendant, to enlighten the public, publishes the application for a chánge of venue and the pleadings, but in doing so omits a part favorable to plaintiff, to-wit, his denial of the new charges. Does it require reasoning to demonstrate that the trained mind of a jurist, reading that newspaper, might not be misled by the absence of plaintiff’s denial, while to the lay mind the matter took another color? The case allows a homely illustration by way of hypothesis: Time, the breakfast hour, December 15, 1903: Scene, the home of the Smiths in Portland, Westmoreland or Hortense Places: Dramatis Personae, Smith and wife. She (laying down the Republic, her favorite morning
It is evident that a rule adopted for convenience in the administration of justice and well understood by persons skilled in court technicalities is out of place when applied to the everyday affairs of life, and no court could be justified in ruling (as a matter of law) that the omission to publish plaintiff’s denial of the grave charges in the answer was immaterial on the issue of malice, where defendant seeks to shelter itself behind the bulwark of being privileged to make a fair and impartial report of a proceeding in court.
The point is ruled against defendant.
III. Over objection, plaintiff was permitted to read to the jury defendant’s abandoned answer, and over timely objection, the testimony of one Gebhardt given at the trial of a former libel suit based on the same charges was read (Meriwether v. Knapp & Co., 120 Mo. App. 354). Error is assigned in that behalf. In our opinion there is no soundness in either contention. This, because:
Since the motive lying behind the spoken or written word lies at the foundation of malice, a defendant is permitted to prove his motives were good. Conversely plaintiff may show them bad. In this case defendant at one time pleaded, by way of justification, the truth of the charges, but presently it abandoned its plea of justification and stood alone on the question of privilege. Undoubtedly such abandonment was defendant’s right. But if in the exercise of that right such abandonment tended to show lack of good faith in the charges or inability to prove they were true, then the abandonment becomes a fact to be considered on the issue of malice. From this viewpoint, it was proper to show the fact of abandonment, ergo, the former answer was competent proof.
(b) Was Gebhardt’s testimony relevant? Learned counsel for defendant argue it was not. One of the libelous charges was to the effect that Mr. Meriwether tried to procure the withdrawal of Gebhardt as a candidate for the office of Marshal of the city of St. Louis at an election shortly to be held (he being a candidate of plaintiff’s own party and an advocate of its principles) in order to consummate a pending deal in mu
IY. Two of plaintiff’s instructions are complained of, viz.:
“4. The jury are instructed that in determining whether the report of the proceedings in court, as mentioned in these instructions was a complete and accurate report, you may consider the evidence, if any, tending to show that prior to defendant’s publication of said proceedings there was on file in the circuit court of the city of St. Louis, and accessible to defendant, plaintiff’s reply denying defendant’s charges in its answer contained.
“If, after considering this point, you. believe defendant omitted to publish plaintiff’s reply, not from mere inadvertence, or from a sincere belief that the publication of said reply was not of importance, but that it was omitted for the purpose of misleading the public into believing that the charges against plaintiff made in defendant’s answer were not contradicted by plaintiff, then you will be warranted, if you see fit, in concluding that the omission to publish said reply was due to malice on defendant’s part.
“Should you so conclude, and if you believe from the evidence that plaintiff’s reply was necessary to a fair and impartial understanding of the proceedings purporting to be reported by defendant, then a report which omitted said reply was not a fair and impartial report, and your verdict should be against defendant’s claim that the article complained of was published as a substantially fair and impartial report of the pleadings and proceedings in the cause then pending in court.
“7. The court instructs the jury, if your verdict is for plaintiff in addition to compensatory damages*630 you may, if you think proper, under ail the facts and circumstances shown in the evidence, assess in plaintiff’s favor such further sum as exemplary or punitive damages, or smart money, as in your judgment, considering all the facts and circumstances in the case in evidence, you believe should be assessed against defendant by way of punishment for the act complained of, and to serve as a warning to prevent defendant and others from being guilty of a like a.ct.
“And in determining such damages you may take into consideration the motive or purpose of defendant in making the publication as you may find it from the evidence; and in determining the motive or purpose you may consider any information concerning or relating to the subject-matter of the libel which defendant received before the publication complained of and on which you may believe that it acted, and any other publication of defendant as shown in the evidence, whether published before or after the publication of December 15th, 1903.
“And, weighing all these matters, you may award plaintiff such exemplary or punitive damages, if any, as you may deem proper.”
It is argued that instruction numbered 4 is bad for that it was a comment upon the testimony and singled out one item of evidence and laid undue stress upon it. We do not entertain that view. In the case at bar, the distinguished counsel representing defendant in this and the former ease labored diligently to convince us then that their client was invulnerable to libel under the facts because armed from head to foot in a panoply of privilege. They labored to have us rule, and we did .-rule, that defendant, if not actuated by an evil purpose, could seize the opportunity of a hearing on an application for a change of venue to publish a fair judicial report of that proceeding, pleadings and application inclusive. But it appears that a part of those pleadings favorable to plaintiff was omitted, and we
It is argued that the seventh instruction is erroneous for that it tells the jury they might consider in determining the motive of defendant in making the publication “any information concerning or relating to the subject-matter of the libel which defendant received before the publication complained of and on which you may believe it acted. ’ ’ The vice in this instruction is said to he that there was no evidence as to any such matter in the case. We are unable to agree with counsel. There certainly was testimony, some of it favorable to defendant and some not, relating to information received prior to publication.
The case was well pleaded and well tried. Three juries have found for plaintiff, and that is some evidence of merit. Let the judgment he affirmed.