45 Mo. App. 6 | Mo. Ct. App. | 1891
— This is an action for libel and resulted in a verdict and judgment for plaintiff. Defendant claims certain prejudicial errors were committed by the trial court, for which the judgment is attacked. The libel charged was published in the Saline County Progress, a newspaper published in Saline county. The article is as, follows :
“Judge J. Pecksniff Brother-in-Law (meaning the plaintiff) is at last beginning to feel the point of the Progress' pen through his prodigious pachyderm. He revealed the festering of the wound last Wednesday night in the ‘tabernacle.’ He will never forgive the Progress for showing Tip his Janus-faced hypocrisy, his Belshazzar’s feast, at Mike McGinnis’, etc. The Judge is wont, we believe, to publicly shed crocodile tears, and to roll up the whites of his eyes over poor suffering humanity in its sinful and lost condition. In this connection we recommend to the Judge’s tender and pious commiseration the poor widow, the insurance on whose husband’s life he collected many years ago. We understand she is very needy, and has judgment on him in our circuit court.”
The errors complained of are: First. That the petition does not state a cause of action, in that it does not, by proper averment, connect the extrinsic facts with the publication. Second. That the publication, when connected and considered with the extrinsic matter, does not constitute the crime of embezzlement. Third. That the publication does not charge that plaintiff as agent, without consent of the widow, converted to his own use the insurance money, with intent to deprive the owner of it. We cannot allow either of these objections to prevail. While the petition could, perhaps, with some more explicitness and precision, have connected the libelous charge with the extrinsic facts, yet it cannot be said to be so defective as to fail in stating a cause of action.
The second and third objections may be considered together. The charge published when explained by, and considered with, the extrinsic facts does clearly accuse plaintiff of the crime of embezzlement. If we were to allow full scope to the argument advanced for defendant, it would lead us into holding that in order to make a good petition for a libel charging embezzlement, it would be necessary to set forth the elements of the crime with all the precision and certainty required in an indictment for the offense. It is scarcely necessary to say that this is not required. We agree with counsel that, in construing the words employed in a libelous publication, the language should be given its natural and ordinary signification. But in cases of this nature, where the words charged are connected with other facts, such facts must be considered with the charge and the natural and ordinary signification given to the whole
We have not been able to see the significance to be attached to the question of demand which was referred to so frequently at the argument. A demand and refusal are not absolute requisites to the proof of embezzlement. The matter has doubtless arisen in the consideration given to the conversion which is necessary to make out embezzlement. But demand and refusal do not constitute conversion.1 It is merely evidence of .that fact. La Fayette Co. Bank v. Metcalf, 40 Mo. App. 494.
The court permitted testimony to show the understanding and meaning which the readers of the paper had of, and attached to, the publication. This was proper testimony in a case of this kind. We may concede (for present purposes) that where the words are plain and unambiguous and disconnected from outside matter which would give them a different or additional meaning, that such evidence should not be heard. But where matter is alleged, and it is shown, as in this case, that something has occurred in consequence of which the words would convey a meaning additional to that which would ordinarily be attached to them, such testimony should be heard. Townsend on Slander, sec. 384; Odgers, Libel & Slander, 538.
And, where the language may or may not impute the crime which is charged to have been imputed, such testimony is proper. Townsend on Slander, sec. 140 ; 2 Greenleaf, Ev., sec. 417 ; Nelson v. Borchenius, 52 Ill. 236 ; Knapp v. Fuller, 55 Vermont, 311. The fact as to what was intended must be ultimately determined by the jury. In the latter case cited, witnesses who had read it were permitted to state their understanding of the language used in the following publication :
“One day last week two of our citizens went to the residence of a farmer a short distance from the village
So far as concerns the rule of law here contended for, that article presents about the same necessity for extraneous matter and for elucidation by the understanding of readers as the one here complained of.
The instructions for either party are not fairly subject to complaint. Number 2, for plaintiff, authorized exemplary damages if the jury should believe that the publication was made with malice towards plaintiff, that is, with ill-will or hatred. Of this defendant ought not to complain ; for the clear inference from the instruction is that such damages should not be allowed without proof of express malice, whereas such proof is not requisite to the allowance of such damages. The malice implied by law is sufficient. Goetz v. Ambs, 27 Mo. 28; Buckley v. Knapp, 48 Mo. 152; Wood v. Hilbish, 23 Mo. App. 389.
This instruction, however, fails to limit, in terms, the maximum amount the jury may find to the amount named in the petition ; and from this omission defendant claims error for which the judgment should be reversed. It is certainly erroneous; but the question remains, is it such error as has worked harm or injury to the defendant? The petition claimed $10,000, and the verdict was for $2,000, from which it mathematically appears, that,, though the jury were not confined by