Minter v. The Bradstreet Company

Decision Date19 May 1903
PartiesMINTER et al. v. THE BRADSTREET COMPANY, Appellant
CourtMissouri Supreme Court

Appeal from Johnson Circuit Court. -- Hon. Jas. H. Lay, Judge.

Affirmed.

Jno. W Noble, A. B. Logan and Geo. R. Lockwood for appellant.

(1) The court erred in refusing to instruct the jury that plaintiffs were not entitled to recover on either of the clauses complained of as libelous, because: (a) The individual signatures of the partners, in addition to the partnership name, on partnership notes, constitute security for such partnership debts, and therefore it was true that the bank holding such notes had been secured. Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587; s. c., 60 S.W 87; Goddard-Peck Grocery Co. v. McCune, 122 Mo. 426; Hundley v. Farris, 193 Mo. 78; Bank v Brenneisen, 97 Mo. 145. (b) Furthermore, the question whether the bank had security was a question of law under the admitted facts, and the court erred in submitting that question to the jury; and as the verdict may rest on the finding of the jury as to that issue, its submission to them was error. (c) Every witness examined on the subject testified that plaintiffs' financial condition was not such as to entitle them to credit, and the admitted facts showed them to be insolvent under numerous decisions of this court. And therefore defendant was justified in expressing the opinion that their condition seemed to suggest cash dealings. Judson v. Walker, 155 Mo. 177; Hoffman v. Nolte, 127 Mo. 137; Mitchell v. Bradstreet, 116 Mo. 240. (d) The gist or sting of the publication complained of was admitted by plaintiffs or proven beyond dispute and therefore plaintiffs could not recover. Stark v. St. Louis Republic, 61 S.W. 669; St. Louis Clothing Co. v. Hail Dry Goods Co., 156 Mo. 393. (2) The court erred in refusing to instruct the jury, as defendant requested, that if they found for plaintiffs and allowed both compensatory and punitive damages, the amount of each should be separately stated in the verdict, as is required by Laws 1895, page 168 (sec. 595, R. S. 1899), since the form of the verdict is a matter of procedure, in which no party has a vested right, and the law at the time of the trial governs. To hold otherwise, would deny some the equal protection of the laws as is required by U. S. Constitution, article 14. Sutherland on Stat. Const. (Ed. 1891), sec. 482; State v. Thompson, 141 Mo. 408; s. c., 132 Mo. 301; Messimer v. McCray, 113 Mo. 382; O'Bryan v. Allen, 108 Mo. 227; State v. Duestrow, 137 Mo. 44; State v. Taylor, 134 Mo. 109; Merriam v. Railroad, 136 Mo. 145; Sheehan v. Ins. Co., 53 Mo.App. 351; Lovell v. Davis, 52 Mo.App. 342; Spohn v. Railroad, 101 Mo. 417; Gomley v. Railroad, 35 Mo.App. 87; Anderson v. Pike, 41 Mo.App. 328; Schuster v. Weiss, 114 Mo. 158; McShane v. Sanderson, 108 Mo. 316; State v. Jackson, 105 Mo. 196; Constitution of United States, sec. 1, article 14. (3) The court erred in that it instructed the jury at plaintiff's request for a recovery, and yet did not instruct on the issues made by the plea in mitigation of damages. Callahan v. Ingram, 122 Mo. 355; Barr v. Kansas City, 105 Mo. 550; Schroeder v. Michel, 98 Mo. 43; Owens v. Railroad, 95 Mo. 169; Sullivan v. Railroad, 88 Mo. 169; Mansur v. Botts, 80 Mo. 651; Korle v. Railroad, 55 Mo. 476; Pogsdon v. Trambo, 52 Mo. 35; Budd v. Hoffheimer, 52 Mo. 297; Fitzgerald v. Hayward, 50 Mo. 516; Bank v. Currie, 44 Mo. 91; Sawyer v. Railroad, 37 Mo. 240; Laughlin v. Girardi, 67 Mo.App. 372. (4) The court also erred in refusing to instruct, as defendant requested, that plaintiffs could not recover because of the clause: "They are behind and can not meet current indebtedness;" because it instructed, at plaintiff's request, for a recovery and did not, because of its failure to instruct on that clause, instruct on all the issues. Authorities supra, and see: Douglass v. McAllister, 3 Crouch 297; Morris v. Platt, 32 Conn. 82; Carpenter v. State, 43 Ind. 373; Livingston v. Ins. Co., 7 Crouch 544. (5) In these instructions the court also erred by assuming the falsity of the report, and especially the clauses therein complained of, and that defendant knew them to be false. Hull v. St. Louis, 138 Mo. 625; Oil Well Supply Co. v. Wolfe, 127 Mo. 626; State v. Taylor, 111 Mo. 538; Moffatt v. Conklin, 35 Mo. 453; Merritt v. Given, 34 Mo. 98; Choquette v. Barada, 28 Mo. 491; Thompson v. Botts, 8 Mo. 710. (6) (a) The court, in the instructions given at plaintiffs' request, violates the Constitution of Missouri, errs in its definition of actual malice; compels the jury to find certain facts conclusive evidence of such malice, though they did not constitute malice, and might not have convinced the jury that defendant was guilty thereof; instructs upon issues not made by the pleadings, and comments upon the evidence. Const. of Mo., art. 2, sec. 14; Townsend S. & L. (4 Ed.), sec. 83; Odgers, L. & S. (1 Am. Ed.), star pp. 267, 270; Tyler v. Hall, 106 Mo. 323; State v. Sivils, 105 Mo. 534; Heller v. Pulitzer Pub. Co., 153 Mo. 214; Peck v. Chouteau, 91 Mo. 138; Finn v. S. L. Public Schools, 59 Mo. 59; Aultman & Taylor Co. v. Smith, 52 Mo.App. 35; Jones v. Jones, 57 Mo. 138; Hoffman v. Hoffman's Exec., 120 Mo. 498; Oil Well Supply Co. v. Wolfe, 127 Mo. 626; State v. Brandon, 76 Mo.App. 305; Callahan v. Ingram, 122 Mo. 373. (b) And the court also erred in these instructions by making defendant liable, without qualification, for the alleged malice of its correspondent. Odgers, L. & S. (1 Am. Ed.), star pp. 270, 301; Townsend (4th Ed.), secs. 117, 120, 121, 124; Railroad v. Prentice, 147 U.S. 101; Scripps v. Reilly, 38 Mich. 10; Hamilton v. Eno, 81 N.Y. 116; Detroit Post Co. v. McArthur, 16 Mich. 454. (7) These instructions are also erroneous in that they conflict with correct instructions given at the request of defendant, because plaintiffs' instructions submitted to the jury whether the alleged libelous language did not impute insolvency, etc., to plaintiffs, thus enlarging the language complained of, while on behalf of defendant the jury was told that if the matter charged to be libelous was "true as published," defendant was not liable. Thomas v. Babb, 45 Mo. 384; Garth v. Carrier, 60 Mo. 581; State v. Mitchell, 64 Mo. 191; State v. McNally, 87 Mo. 644; Frederick v. Allgaier, 88 Mo. 603; State v. Harrell, 97 Mo. 110; Price v. Railroad, 77 Mo. 503; Stevenson v. Hancock, 77 Mo. 614; Buddenberg v. Chouteau Trans. Co., 108 Mo. 394. (8) The court also erred in plaintiffs' instructions by giving the jury a "roving commission" as to damages. Harris v. K. C. Stock Yards Co., 103 Mo. 60; McGowan v. S. L. Ore & Steel Co., 109 Mo. 518. (9) The verdict is against the evidence; is grossly excessive, and the result of passion and prejudice against defendant; and the fact that one new trial has been granted, because of erroneous instructions, and because the verdict was excessive, does not prevent the granting of a second new trial because of the allowance of excessive damages or the passion or prejudice of the jury. R. S. 1899, sec. 801; Boyce v. Smith, 16 Mo. 317; State ex rel. v. Horner, 86 Mo. 71; Kreis v. Railroad, 131 Mo. 533; Langston v. Railroad, 147 Mo. 457. (10) The court erred in permitting plaintiff's attorney to read to the jury from an opinion of the Supreme Court of Michigan and to argue to the jury that in libel suits the jury were the judges of the law and the facts. Heller v. Pulitzer Pub. Co., 153 Mo. 205.

J. W. Suddath, O. L. Houts and Geo. P. B. Jackson for respondents.

(1) In a case like the present the right of recovery depends upon the presence of actual as distinguished from implied or legal malice. Upon that theory the case was clearly and distinctly put to the jury. There was abundant evidence to sustain that theory and the verdict should not be disturbed. Written information concerning a merchant furnished by a mercantile agency is only protected by a qualified privilege, if not defamatory and not actuated by malice. State v Lonsdale, 48 Wis. 348; King v. Patterson, 49 N. J. L. 417; Com. v. Stacy, 1 Leg. Gaz. 114; Lock v. Bradstreet, 22 F. 771; Kingsbury v. Bradstreet, 35 Hun 212; Trussill v. Scarlett, 18 F. 414; Erber v. Dun, 4 McCrary 160; Johnson v. Bradstreet, 77 Ga. 172; Taylor v. Church, 8 N.Y. 452; Ormsby v. Douglas, 37 N.Y. 477; Lunderlin v. Bradstreet, 46 N.Y. 188; Lorry v. Vadder, 42 N.W. 542; Sullivan v. Com. Co., 152 Mo. 268; Military Academy v. Gaiser, 125 Mo. 517. (2) It is libelous per se to publish of a business man that he is insolvent, or anything that imputes insolvency -- as inability to pay debts -- want of integrity -- personal incapacity -- pecuniary inability to conduct business -- or anything which in any manner is prejudicial to him in his employment or trade. In such case general damages may be recovered. Mitchell v. Bradstreet, 116 Mo. 226; 13 Am. and Eng. Ency. of Law, 314, and cases in note 1; Military Academy v. Gaiser, 125 Mo. 525; Sullivan v. Com. Co., 152 Mo. 268; Odgers on L. & S. (2 Ed.), p. 292. (3) The defendant can be held responsible for actual malice indulged by its agents in performing the duties for which they are employed. Johnson v. Dispatch Co., 65 Mo. 539; Mitchell v. Bradstreet, 116 Mo. 226; Perkins v. Railroad, 55 Mo. 201; Eckert v. Transfer Co., 2 Mo.App. 36; Canfield v. Railroad, 59 Mo.App. 354; Haehl v. Railroad, 119 Mo. 325; Meade v. Railroad, 68 Mo.App. 92; Eads v. Railroad, 43 Mo.App. 536; Mason v. Stiles, 21 Mo. 374; Ephland v. Railroad, 71 Mo.App. 597; Samuels v. Evening Mail Ass'n, 75 N.Y. 604; Cleghorn v. Railroad, 56 N.Y. 44; Merrills v. Tariff Co., 10 Conn. 384; Maynard v. Ins. Co., 34 Cal. 54; Evening Journal Assn. v. McDermott, 44 N. J. L. 430; Pollarky v. Minchener (Mich.), 46 N.Y. 5; Bacon v. Railroad, 66 Mich....

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