Frank M. Brown v. George Knapp & Company

• Decision Date: 14 July 1908
• Citation: 112 S.W. 474,213 Mo. 655
• Parties: FRANK M. BROWN v. PUBLISHERS: GEORGE KNAPP & COMPANY, Appellant
• Court: Missouri Supreme Court

112 S.W. 474

213 Mo. 655

FRANK M. BROWN v. PUBLISHERS: GEORGE KNAPP & COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 14, 1908

Appeal from Cole Circuit Court. -- Hon. Wm. H. Martin, Judge.

Affirmed.

Lehmann & Lehmann and W. S. Pope for appellant.

(1) The publication sued upon is not libelous because it is, and appears upon its face to be, part of the report of a legal proceeding, in which the epithets complained of as libelous were applied by counsel to the plaintiff under circumstances as disclosed by the publication itself, which showed them to be mere invective and unwarranted by the facts upon which they were predicated. Newell on Slander and Libel, pp. 33 34; Bridgman v. Armer, 57 Mo.App. 528; Ritchie v. Stenius, 73 Mich. 563; Haynes v. Haynes, 29 Me. 247; Young v. Bridges, 34 La. Ann. 333; Zuckerman v. Sonnenschein, 62 Ill. 115; Van Rensellear v. Dole, I John. Cas. 279; Ayers v Grider, 15 Ill. 37; Williams v. Cawley, 18 Ala. 206; Kirksey v. Fike, 29 Ala. 206; Kidd v. Ward, 91 Ia. 371. (2) Even though words are used which in themselves impute a crime, still if accompanied with a specification of acts upon which the imputation is based, which shows that no such crime was committed, they are not libelous. Trimble v. Foster, 87 Mo. 49; Hall v. Adkins, 59 Mo. 144; Pasley v. Kemp, 22 Mo. 409; Ogden v. Riley, 14 N. J. L. 186; Allen v. Hillman, 12 Pick. (Mass.) 101; Hollenbeck v. Hall, 72 N.W. 518; Divens v. Meredith, 47 N.E. 143; Van Vactor v. Walkup, 46 Cal. 124; Morehead v. Jones, 41 Ky. (2 B. Mon.) 210; Barnes v. Crawford, 115 N.C. 76; Cramer v. Noonan, 4 Wis. 231; Randall v. News Ass'n, 101 Mich. 561; Hanaw v. Patriot Co., 57 N.W. 734. (3) Where corrupt intent is an essential element of an offense, a charge of the act under such circumstances as negative the corrupt intent is not a charge of the offense. Church v. Bridgman, 6 Mo. 190; Trimble v. Anderson, 79 Ala. 514; Atkinson v. Scammon, 22 N.H. 40. (4) An accusation of perjury is not made by the publication sued upon, because the entire statement shows there was no perjury. Bundy v. Hart, 46 Mo. 460; State v. Higgins, 124 Mo. 640; Nelson v. State, 32 Ark. 192; Gibson v. State, 15 S.W. 118; Alderson v. Auerswald, 80 Mo.App. 370; Pegram v. Styron, 1 Bailey (S. C.) 595; Harris v. Woody, 9 Mo. 115; Schmidt v. Witherick, 29 Minn. 156; Sherwood v. Chace, 11 Wend. 38. (5) The publication was the report of a legal proceeding made fairly and impartially and without malice and therefore was not actionable. 18 Am. and Eng. Ency. Law, 1043; Newell on Slander and Libel, 544; Kimber v. Press Ass'n (1893), 1 Q. B. 65. (6) The subject-matter of the publication being one of qualified privilege, malice must be expressly shown. Newell on Slander and Libel, 391. (7) Failure to justify the charge of perjury, when it was denied that the charge of perjury was made, does not admit the falsity of all other matters in the publication which the plaintiff may hold to be defamatory. Walford v. Herald Co., 133 Ind. 372. (8) Mere negligence in making report of a trial would not warrant the infliction of punitive damages. Parsons v. Railroad, 94 Mo. 286; Leahy v. Davis, 121 Mo. 227. (9) The verdict is so excessive that it is manifestly the result of passion and prejudice. (10) The verdict is plainly against the law and the evidence.

Edwin Silver and J. L. Smith for respondent.

(1) 1. It is sufficient to make a written or printed publication libelous and actionable per se that it is false and tends to expose one to public hatred, contempt and ridicule or to blacken his reputation. It is not necessary that the publication should charge a crime or indictable offense. The distinction between oral slander and written slander or libel in the foregoing respect is well recognized in this State. Nelson v. Musgrave, 10 Mo. 648; Price v Whitely, 50 Mo. 439; McGinnis v. Knapp & Co., 107 Mo. 131; Ukman v. Daily Record Co., 189 Mo. 378; Manget v. O'Neill, 51 Mo.App. 26. 2. A newspaper is responsible for what it publishes, the same as an individual. Johnston v. Post-Dispatch Co., 65 Mo. 539; Arnold v. Saying Co., 76 Mo.App. 159; State ex inf. v. Sheppard, 177 Mo. 244; Shekell v. Jackson, 10 Cush. 25; Haynes v. Press Co., 169 Mass. 512; McDonald v. Woodruff, 2 Dillon 214; 2 Greenleaf on Evidence (16 Ed.), sec. 398; Fitzpatrick v. Publishing Co., 48 La. Ann. 1135. That the name of the author of the publication was given does not relieve the paper. Dole v. Lyon, 10 Johnson (N. Y.) 447; Hotchkiss v. Oliphant, 2 Hill 510. To repeat or publish a slanderous statement is to indorse it as genuine. Bee Pub. Co. v. Shields, 94 Neb. 1029; Meyer v. Adams, 1 Mo.App. 329. Nor does the want of intention to vilify or defame render an objectionable publication any the less a libel. Curtis v. Mussey, 6 Gray 261. Though the want of such intention may be shown in mitigation of exemplary damages. Jones v. Murray, 167 Mo. 25. (2) Words charging one with having committed perjury are actionable per se. Newell on Slander & Libel (2 Ed.), p. 124; Perselly v. Bacon, 20 Mo. 331; Holt v. Turpin, 78 Ky. 433; Bricker v. Potts, 12 Pa. St. 200; Cooley on Torts (2 Ed.), p. 233 (note); Harris v. Purdy, 1 Stewart (Ala.) 351. Perjury can be assigned when the affidavit of a person making it is based simply on information and belief. Herring v. State, 46 S.E. 877; Fitch v. Commonwealth, 92 Va. 824; Hughes on Criminal Law, sec. 1588. That words are slanderous per se does not depend upon the laws of the State where they are spoken, but upon the law of the State in which the act is alleged to have taken place. Dufresne v. Weise, 46 Wis. 296; Van Anken v. Westfall, 14 John. (N. Y.) 233. (3) The publication complained of in this case is not non-libelous on the theory that "it carries the antidote with the poison." That the defendant may be within the protection of the foregoing principle, the publication must show on its face that the charge is palpably unfounded. Perselly v. Bacon, 20 Mo. 331; Deford v. Miller, 3 Penn. & Watts (Pa.) 103; Fowle v. Robbins, 12 Mass. 498; Carter v. Andrews, 16 Pick. 1. Where a slanderous charge is made which the unlearned would understand as imputing a crime, the action of slander lies, although in the nature of things such crime could not have been committed. Kennedy v. Gifford, 19 Wend. 296; Goodrich v. Wolcott, 3 Cowen 239; Morgan v. Rice, 35 Mo.App. 591; Johnson v. Dispatch Co., 2 Mo.App. 565 (affirmed in 65 Mo. 593); Carpenter v. Hamilton, 185 Mo. 603. (4) The quotations from the brief of Mr. Bowers and his associates, filed in the Ziegler extradition proceeding before the Governor of New York, are not privileged matter. A statement in a newspaper of the circumstances of a cause tried in a court of justice given as from the mouth of counsel, instead of being accompanied or corrected by the evidence, is not such a report of the proceedings of a court of justice as a newspaper is privileged to make. Saunders v. Mills, 6 Bingham 213; Rex v. Carlile, 3 B. & A. 167; Rex v. Creevey, 1 M. & S. 273; Com. v. Godshalk, 13 Phila. 875; Hawkins v. Prtg. Co., 10 Mo.App. 174; Edsall v. Brooks, 17 Abb. Prac. 379; Post Pub. Co. v. Moloney, 50 Ohio St. 71; Stanley v. Webb, 4 Sandf. 21; Cooley, Con. Lim. (7 Ed.), p. 637. The public is not regarded as having such an interest in proceedings embodying defamatory matter as will outweigh the necessity of protecting the character of individuals unless the proceedings are of a legislative or judicial character. Belo v. Wien, 63 Tex. 686. The publication of a report of a judicial proceeding is not privileged where (as here) it contains intrinsic evidence that it was not published for good motives or justifiable ends. Saunders v. Baxter, 53 Tenn. 369; Fudering v. Cramer, 53 Wis. 193; White v. Nichols, 3 How. (U.S.) 266. A person may publish a correct account of the proceedings in a court of justice, yet if he discolors or garbles the report or adds comments or insinuations of his own, aspersing the character of the parties concerned, he exceeds his privilege and his publication becomes a libel. Thomas v. Crosswell, 7 Johns. (N. Y.) 264; Dorr v. United States, 195 U.S. 138; Newell on Slander and Libel (2 Ed.), sec. 163. To state that criminal proceedings are about to be taken against the plaintiff, e. g., that the Attorney-General had directed a certain attorney to prosecute him for perjury, is actionable, although the speaker does not expressly assert that plaintiff is guilty of the charge. 13 Am. and Eng. Ency. Law (1 Ed.), 390, note; Roberts v. Camden, 9 East 93; Tempest v. Chambers, 1 Starke 67. In publishing an affidavit filed in a criminal proceeding, a newspaper made comments which would give an impression that the matters sworn to were probably true. Held not privileged. Cass v. Times, 27 La. 214. Garbled extracts and false reports of a privileged communication are not protected by the law under the guise of the freedom of the press. Arnold v. Sayings Co., 76 Mo.App. 159; Metcalf v. Times Co., 21 R. I. 674; 18 Am. and Eng. Ency. Law (2 Ed.), 1045; Bathrick v. Post Co., 50 Mich. 644; Maclean v. Scripps, 52 Mich. 253; State v. Wait, 44 Kan. 317; Barner v. Dispatch Co., 3 Mo.App. 377; Cowley v. Pulsifer, 137 Mass. 392. Privilege is a question of law when the facts as to same are undisputed. Callahan v. Ingram, 122 Mo. 355; Sullivan v. Com. Co., 152 Mo. 268; Jones v. Brownlee, 161 Mo. 258; Wagner v. Scott, 164 Mo. 289; Klinck v. Kalby, 46 N.Y. 431; Farley v. Thalkimer, 49 S.E. 644; Newell on Libel and Slander (2 Ed.), p. 391, sec. 9. (5) The damages were a proper matter for the jury, and were not excessive. The extent of the injuries to the person libeled, as well as the malice, need not be specially proved, but may be inferred from the wrongful charges. Price v. Whitely, 50 Mo. 439; ...