120 Mo. App. 354 | Mo. Ct. App. | 1906
(after stating the facts).
“The truth, Avhen relied on in justification of libel or slander, must, to constitute a complete defense, be as broad as the defamatory accusation, and so the proof of the truth of a part only of a charge will not amount to a complete defense.” [18 Am. and Eng. Ency. of LaAV, p. 1070.] Therefore, it was proper for the court to give the following instruction:
“4. The jury are instructed in this case the defendant pleads justification; that is, it declares the statements contained in the publication complained of are true of and concerning the plaintiff. Under this plea it is defendant’s duty to prove the truth of the statements in the publicaton complained of in plaintiff’s petition. And it is not sufficient for defendant to prove the truth of merely a portion of the statements contained in the publication complained of. Even though the defendant proved the truth of a portion of said publication, yet your verdict should be against the*386 defendant’s plea of justification if you find from the evidence that it has failed to prove any statement in the publication complained of, providing such statement is found by you from the evidence to be false and a libel upon plaintiff.”
“5. The jury are instructed, if your verdict is for the plaintiff, you will assess his compensatory damages at such sum as, from the evidence and under the instructions, you believe will fairly compensate him for the injury, if any, he has sustained by reason of said publication, and in determining what is such fair compensation you may take into consideration the extent of said circulation of defendant’s newspaper at the time of said publication, as shown by the evidence the general character of the publication and the probable effect, if any, of the said publication upon the reputation of the plaintiff, considering his standing and repute in the community at, or prior to September 27, 1902, as shown by the evidence; the mortification, if any, to his feelings which plaintiff may have suffered by reason of the publication, the distress of mind, if any, which he may have suffered on account thereof; and considering all these matters, you may assess the compensatory damages of the plaintiff at such sum as in your opinion will be a fair compensation to him for the injury, if any, you believe he has suffered from the publication of said article, such sum,' however, not to exceed the amount sued for on the score of compensatory damages, to-wit, $5,000.”
Substantially, the libel branded plaintiff as a liar, as a trickster and an ally of Butler. Defendant contends that the charges are distinct, and one or all may be triie, and if one or more are true, defendant is not liable on them, and for this reason the instruction on the measure of damages, authorizing the jury to find
“If the jury find in favor of the plaintiff for actual damages only, the verdict may be in the following form, to-wit:
“We, the jury, find in favor of plaintiff for actual damages, and we assess the amount of his recovery at (here insert the amount agreed upon).
“If the jury find in favor of the plaintiff for actual damages, and also for punitive damages, the verdict may be in the following form, to-wit:
“We, the jury find in favor of the plaintiff for actual damages, and assess the amount of his recovery at (here insert the amount agreed upon).
“And we further find in favor of plaintiff for punitive damages, and we assess the amount of his recovery at (here insert the amount agreed upon).”
The verdict returned is as follows:
*388 “We tbe jury find in favor of tbe plaintiff for actual damages, and we assess the amount of bis recovery at $5,000.
[(Signed) William Rinaman,
“Foreman.”
Under tbe above instruction there is no room to draw tbe conclusion that tbe jury may have included punitive damages in their verdict.
“18. Contributions may properly be made by any person to a political campaign fund, but they should be made openly, that tbe public may know what are tbe various influences supporting a candidate; and if tbe jury find from tbe evidence that plaintiff, while a candidate for tbe office of mayor on a Public Ownership platform, and as representing tbe Public Ownership party, received financial contributions in aid of bis campaign from Republicans who were supporting a candidate of their own party, and who were contributing to plaintiff’s campaign fund, because they believed that bis candidacy was in its effect detrimental to that of tbe Democratic nominee, and plaintiff did not publicly acknowledge such contributions and such relation with the Republicans, then the defendant bad a right to characterize him as a trickster in politics.”
Tbe court struck out the words “characterize him as a trickster in politics,” and inserted in lieu thereof tbe words, “criticise plaintiff therefor,” and as thus modified gave tbe instruction.
In State v. Smith, 82 Minn. 342, trick is defined as a “sly, dexterous, ingenious procedure fitted to puzzle or amuse, and is synonymous with strategy, wile, fraud, cheat, deception or delusion.” Webster defines trick, “to deceive by cunning or to impose on, to defraud, to cheat.”
The evidence shows that after plaintiff was defeated for the nomination for mayor in the Democratic con
“13. If the jury find from the evidence that, at any time prior to the time of the publication complained of, the plaintiff had been associated with Edward Butler in the conduct of politics, and had accepted the aid and co-operation and financial support of the said Butler in the attainment of his political purposes, then the defendant had the right to criticise plaintiff as an ally and associate of the said Butler.”
The court added the following proviso and gave the instruction as modified:
“Provided that they further believe from the evidence that the defendant, in good faith, believed that such association continued and existed at the time su.ch criticism was made.”
The libel charged a present alliance between plaintiff and Butler; for this reason, we thing the modification of the instruction was proper.
“11. You are instructed that the agreement made by Charles E. Carroll, John B. Owen and Charles F. Wenneker upon one side, and Lee Meriwether, William A. Brandenberger and Frank S. Kowalski upon the other side, is, by its terms, opposed to public policy and to public law, and corrupt in its tendencies, and it was the right and privilege of the defendant to comment upon it and upon all who had part in it in appropriate terms, and to criticise the agreement itself as corrupt, and the parties to it as employing improper methods in the conduct of politics.
“12. As the agreement between Charles E. Carroll and his associates on the one side, and Lee Meriwether and his associates on the other, was in itself a corrupt agreement, and inasmuch as that agreement provided for making concessions to other elements or parties in St. Louis who would join with the Public Ownership and Republican parties the defendant was warranted in believing, if it did so believe, that the Butler element, if an element so-called existed, was intended thereby, and defendant had the right to comment as it did upon the plaintiff in association with the said Butler, and was not guilty of publishing a libel in so doing.”
Of its own motion, the court gave the following in lieu of the above refused instructions:
“If the jury believe from the evidence that the defendant in good faith regarded the agreement made by Charles E. Carroll, John B. Owen and Charles F. Wenneker, upon one side, and Lee Meriwether, William A. Brandenberger, and Frank S. Kowalski, upon the other side, as opposed to public policy, to public law, and to be corrupt in its tendencies, then it was the right and privilege of defendant to comment upon such agreement, and upon all who had part in it, in appropriate terms, and to criticise the agreement itself as corrupt, and the*391 parties to it as employing improper methods in the conduct of politics.
“12. If the jury believe from the evidence that the defendant, in good faith, regarded the agreement made by Charles E. Carroll, John B. Owen and Charles F. Wenneker, upon one side, and Lee Meriwether, William A. Brandenberger and Frank S. Kowalski, upon the other side, as opposed to public policy and as corrupt, and insomuch as that agreement provided for making concessions to other elements or parties in St. Louis, who would join with the Public Ownership and Bepublican parties, that the defendant believed, and was warranted in believing, that the Butler element (if any element so-called existed) was intended thereby, then the defendant had a right to comment upon such agreement and upon plaintiff as being in association with said Butler element.”
Fusion of minority parties, for the purpose of defeating a dominant party, is common practice in this country, is not immoral in itself, or opposed to public policy, and is, under some circumstances, commendable. The chief complaint made by plaintiff in his petition and on his argument, is that the defendant yoked him up with Butler to do political work. The republicans, who were parties to the Carroll-Meriwether fusion agreement, testified that the five justices of the peace and five constables, to be named by some other party, were to be named by the Butler element. If this was the understanding, then plaintiff agreed to be yoked up with Butler in political work, and from his own standpoint, the agreement was corrupt. But he testifies that no one in the conference mentioned the Butler element, except Carroll, and that fusion with the Socialist and Allied parties was discussed by him; that he had these parties in mind and not the Butler element. There is no evidence tending to show that fusion with the Socialist and Allied parties, or both, would have
No reversible error appearing, the judgment is affirmed.