Callahan v. Ingram

• Decision Date: 28 May 1894
• Parties: Callahan v. Ingram, Appellant
• Court: Missouri Supreme Court

26 S.W. 1020

122 Mo. 355

Callahan v. Ingram, Appellant

Supreme Court of Missouri, First Division

May 28, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Reversed and remanded.

Thompson & Wilcox for appellant.

(1) The court erred in permitting plaintiff to testify as to statements made to him by different persons concerning the alleged slander. (2) Witnesses may testify as to their understanding of the slanderous language. Nelson v Borchenius, 52 Ill. 236. (3) The court erred in not permitting Lewis Johnson to testify that Callahan had told him that he gave the acceptance to Bashford. The pleadings made that an issue in the case and defendant ought to have been permitted to prove it. (4) The reasons, motives and intentions of defendant on the night in question are material and competent as showing whether he was in the discharge of his duty as a councilman. (5) Defendant's belief in the statements made to him as to plaintiff's official conduct was material to show defendant's good faith in making these statements the basis of his charge against plaintiff. Hyde v. McCabe, 100 Mo. 412 at 418. (6) Whether Callahan was guilty of official misconduct and favoritism in issuing the acceptance as he did, was, under the pleadings and evidence, a question of fact for the jury and not of law for the court. (7) Defendant's first instruction should have been given. Plaintiff was permitted to recover, even though he had been guilty of the misconduct with which he was charged by defendant. (8) If the defendant has the qualified privilege contended for, then the plaintiff could not recover without showing actual malice on the part of defendant. Hyde v. McCabe, 100 Mo. 412; Coffin v. Coffin, 4 Mass. 1; Cooley on Torts [1 Ed.], p. 214; Newell on Def., S and L., 418-420; Klinck v. Colby, 46 N.Y. 427; Mayo v. Sample, 18 Iowa 306; Brew v Hathaway, 95 Mass. 239; Fahr v. Hayes, 13 A. 261; Swan v. Tappan, 5 Cushing, 104. (9) Defendant's eighth instruction should have been given. The liability of a member of a legislative body for his remarks made therein depends in no degree whatsoever upon his keeping within the bounds of parliamentary laws. Newell on Defamation, Slander and Libel, 420. (10) The defamatory words must be published while the party still carries on his trade, practices his profession or holds his office. Newell on Defamation, Slander and Libel, pp. 175-177, 853, and cases cited; Edwards v. Howell, 10 Ired. (N. C.) L. 211; Eviston v. Cramer, 47 Wis. 659; Cooley on Torts [1 Ed.] p. 201, note; Townshend on Slander and Libel [2 Ed.], p. 267, sec. 189. (11) Defendant complains that his tenth instruction, limiting damages to compensation, was refused, and that plaintiff's fourth, authorizing punitive damages, was given. Punitive damages can not be given, unless actual malice is shown or a recklessness akin to it. 3 Sutherland on Damages [1 Ed.], p. 661; Newman v. Stein, 75 Mich. 407; Templeton v. Graves, 59 Wis. 98; Eviston v. Cramer, 57 Wis. 575-76; Hayner v. Cowden, 27 Ohio St. 292; Bennett v. Smith, 23 Hun, 50; Barr v. Moore, 87 Pa. St. 385; Wilson v. Fitch, 41 Cal. 386; Symonds v. Carter, 32 N.H. 466; Fulkerson v. Murdock, 53 Mo.App. 151, and cases cited.

Harmon Bell and Wash Adams for respondent.

(1) There can be no question but that the words used by the defendant, and on account of which this action was brought, are actionable per se, for the reason that they charged the defendant with an indictable offense under the law. R. S. 1889, sections 3732 and 3733; Const. of Mo., art. 2, sec. 12; Newell on Defamation, Libel and Slander, p. 118, sec. 48; Bishop on Non-Contract Law [1 Ed.], sec. 261. (2) Instruction number 1 asked by the defendant was clearly improper, and the court committed no error in refusing to give it. (3) A judgment will not be reversed on account of harmless errors in refence to the admission of testimony. Young v. Hudson, 99 Mo. 102; Sebree v. Paterson, 92 Mo. 451; Finkelnburg's Mo.App. Practice, pp. 90, 91; Mitchell v. Bradstreet Co., 22 S.W. 724. (4) The court did not commit an error in refusing to permit the defendant to testify as to his motive or intention in uttering the slanderous words. The rule is that the law imputes to the defendant in such a case the natural and probable consequences of his words, and it is immaterial what meaning the speaker intended to convey. Newell on Defamation, Slander and Libel [1 Ed.], p. 301; 2 Thompson on Trials [1 Ed.], sec. 2029; 13 Am. and Eng. Encyclopedia of Law, pp. 385, 469 and cases cited; McGinnis v. Knapp & Co., 109 Mo. 131. (5) There was not before the lower house of the common council either a resolution, ordinance or motion affecting the plaintiff in any manner. The defendant's words were purely voluntary, -- he went out of his way to assail the plaintiff with falsehoods, and the law affords him no shield of privilege to protect him from the consequences of his act. Cooley on Torts [1 Ed.], p. 214; Bishop on Non-Contract Law, sec. 773, p. 360; Smith v. Burris, 106 Mo. 94; Coffin v. Coffin, 4 Mass. 1. (6) The question of privilege, or no privilege is entirely one of law for the judge. The court should itself decide the question as to whether a communication is privileged and should not submit it to the jury. Newell on Defamation, Slander and Libel [1 Ed.], pp. 391, 392; Odgers on Libel and Slander [1 Am. Ed.], sec. 266, p. 234, sec. 185, p. 169; 13 Am. and Eng. Encyclopedia of Law, p. 406; Ramsey v. Cheek, 109 N.C. 270. (7) All the authorities agree that, where malice is shown, a qualified privilege is no defense. Odgers on Libel and Slander [1 Am. Ed.], sec. 267, p. 236; sec. 265, p. 234. (8) The word maliciously, as used in the first instruction given by the court for plaintiff, has the same meaning as the terms actual malice, or express malice. Odgers on Libel and Slander, sec. 265, p. 234; Anderson Dict. of Law [1 Ed.], p. 649. (9) Instructions numbers 1 and 4, given for plaintiff by the court, were clearly correct. Hess v. Sparks, 44 Kan. 465. (10) Malice in uttering false statements may consist, either in direct intention to injure another, or in reckless disregard of his rights and of the consequences that may result to him. Gott v. Pulsifer, 122 Mass. 235; 13 Am. and Eng. Encyclopedia of Law, p. 425; Moore v. Stevenson, 27 Conn. 14; Odgers on Libel and Slander, [1 Am. Ed.]. sec. 270, p. 384. (11) In the case at bar the court by its instructions required the plaintiff to prove malice on the part of the defendant before the jury could award the plaintiff damages -- punitive or otherwise -- and this was clearly in defendants favor, as some of the best considered cases have held that, from the speaking of actionable words, malice is implied, which will justify the assessment of exemplary damages. Hintz v. Grampner, 138 Ill. 158; Bergman v. Jones, 94 N.Y. 52; Blocker v. Schoff, 83 Iowa 265; Morrison v. Press Pub. Co., 59 S.Ct. 216; 13 Am. and Eng. Encyclopedia of Law, note, page 433. (12) In slander cases the amount of damages to be allowed a plaintiff is peculiarly the province of the jury. 13 Am. and Eng. Encyclopedia of Law, p. 432, citing numerous authorities; Wilson v. Fitch, 31 Cal. 386.

Macfarlane J. Barclay, J., absent.

OPINION

MacFarlane, J.

Action for slander. The petition charged that on the fourth of November, 1889, plaintiff was appointed superintendent of streets of Kansas City, which was an office of honor and trust, under the charter and ordinances of said city. That on said date, at a meeting of the common council of said city, in the presence of divers persons, naming other members of said council, and the clerk thereof, and other persons, then present, defendant "falsely and maliciously spoke and published of and concerning the plaintiff the false and malicious words following, to wit: 'Now, I want to say something, and I want the reporters to get it. The superintendent of streets, this Callahan, is a downright thief, and I can prove it."

The petition further charged that, at the time the words were spoken, there was not then pending before said council any ordinance, motion, resolution or report referring to plaintiff, or the office so held by him. "That defendant meant and intended by the use of said words so spoken and published by defendant as aforesaid to charge plaintiff with being guilty of willful, corrupt and malicious oppression, partiality, misconduct or abuse of authority in his official capacity as such superintendent of streets or under color of his said office. Plaintiff further states that, at the time said words were so spoken by defendant, the defendant well knew the same to be false, and said words were so spoken by defendant wantonly and maliciously, and with the intention of injuring plaintiff;" that the words spoken were false, and plaintiff was "greatly injured in said office and in his feelings, good name and reputation."

The answer was a general denial, and a special plea, as follows:

"For a second and further answer to plaintiff's amended petition, defendant says that, at the time the supposed defamatory words were spoken by defendant, the lower house of the common council of Kansas City, being regularly in session, were discussing the office of superintendent of streets, and the actions and methods of superintendent Callahan, the plaintiff. It had been stated by different members of the council that he was an inefficient and incompetent officer, and had been guilty of misconduct oppression, partiality and abuse of authority in his official capacity. During this discussion the defendant, in the discharge of his duty as a member of said common council in discussing the official conduct of plaintiff, stated that the resolution previously introduced by him to investigate the city officials was...