Fish v. St. Louis County Printing & Publishing Company

• Decision Date: 12 May 1903
• Citation: 74 S.W. 641,102 Mo.App. 6
• Parties: WILLIAM E. FISH, Respondent, v. ST. LOUIS COUNTY PRINTING & PUBLISHING COMPANY, Appellant
• Court: Missouri Court of Appeals

74 S.W. 641

102 Mo.App. 6

WILLIAM E. FISH, Respondent, v. ST. LOUIS COUNTY PRINTING & PUBLISHING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 12, 1903

Appeal from St. Charles Circuit Court.--Hon. E. M. Hughes, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Kiskaddon & Matthews and R. Lee Mudd for appellant.

(1) Among the several kinds of "privileged communications," a common definition of the one here claimed is "where the publisher acted in good faith, in discharge of a public or private duty, legal or moral, or in the prosecution of his own rights." Hancock v Blackwell, 139 Mo. 451; Hess v. Ganz, 90 Mo.App. 448; Meysenberg v. Englike, 18 Mo.App. 350; 3 Lawson's Rights and Rem., sec. 1228; Starkie (Faulkard) on Sland., p. 259; Townshend on Libel and Slander (4 Ed.) sec. 240. (2) It bears much the semblance of a prosecution for disturbance of the peace in a case in which both sides were "ready for battle;" and there the principle applies, "the party complaining must not himself have provoked the alleged disturbance; he must be in the peace himself." Kelley's Cr. Law (2 Ed.), p. 633; State v. Lund, 49 Mo. 90; State v. Blumley, 53 Mo.App. 130. (3) "When both parties are in pari delicto neither of them should be encouraged in a claim for damages." 28 L. R. A. 722, notes. Merely giving the names of the authors, or the publishers, in libel cases, as contradistinguished from oral slander, we know is no defense and hence the materiality of such testimony as here excluded is obvious. Hawkins v. Globe Printing Co., 10 Mo.App. 179; Meyrose v. Adams, 12 Mo.App. 332.

G. N. Fickeissen for respondent.

(1) In the case of Brewer v. Chase, 121 Mich. l. c. 533, the cases on this question are all carefully considered and the court says: "It must not be supposed that when a libelous article is published the person libeled is at once authorized to publish any and all kinds of charges against the offender, upon the theory that they tend to degrade him and thereby discredit his libelous statements. If this were so, every libel might be answered in this way, and the most disgraceful charges made, the person making them sheltering himself behind his belief in their truth. In this it is observable that the rule limits the privilege to retorts which are necessary to the defense, or fairly arise out of the charges made." Odgers, L. & S., 228; Newell, S. & L., p. 519, sec. 120. (2) The criticisms set out in defendant's answer referred to certain acts of county officials and matters of politics. It was no attack, direct or indirect, on the defendant, and defendant could not step into the shoes of "its friends," as they are called in the testimony, and still claim "privilege" or "provocation." Hess v. Gansz, 90 Mo.App. 439. On this point it is said in Weston v. Grand Rapids Pub. Co., 87 N.W. 258: "Articles published by plaintiff, as editor of a rival paper, reflecting on the stockholders of the defendant company, none of which related to the same subject-matter as that contained in the libel complained of, and to which the libelous article could not be deemed a reply, were inadmissible to show provocation or to excuse the libel." (3) General damages may be recovered in the absence of actual proof, and an instruction importing that direct evidence must be offered establishing actual damages before a verdict may be given therefor, is not a correct statement of law. Recovery can not be limited to pecuniary loss of plaintiff. Hearne v. DeYoung, 132 Cal. 357; Lovejoy v. Whitcomb, 174 Mass. 586; The Norfolk v. Davis, 12 Appeal Cases (D. C.) 306.

BLAND, P. J. Reyburn, J., concurs; Goode, J., not sitting.

OPINION

BLAND, P. J.

--This suit originated in the circuit court of St. Louis county. The venue was changed to the county of St. Charles, where a trial resulted in a verdict for plaintiff for $ 500 actual damages. From the judgment entered on this verdict defendant appealed.

Omitting caption and signature, the petition is as follows:

"The plaintiff, William E. Fish, for his cause of action in the above entitled cause states: That the defendant, the St. Louis County Printing and Publishing Company, is a corporation, duly organized under the laws of the State of Missouri and is engaged in the publishing of a newspaper called the St. Louis County Advocate. That said defendant on the 31st day of January, 1902, published in said St. Louis County Advocate certain false, defamatory, malicious and libelous language of and concerning the plaintiff, as follows, to-wit:

WILLIAM E. FISH, AS A REFORMER.

LET THE CALCIUM LIGHTS FLASH, AND THE TRUTH BE TOLD.

Shady Transaction of a Clayton Attorney Alleged by His Clients and Supported by their Affidavits--Moneys Paid Him Retained, and Moneys Collected Never Paid Over--His Future Status as an Attorney and Officer of the Court to Be Determined.

When a man, like William E. Fish, who lives in a glass house, undertakes to pose before the people of this county as a political reformer, and recommends the formation of new party, it is well and opportune to inquire: "Who is William E. Fish?" When a man of the species of William E. Fish, who has skeletons in his own closet, undertakes by innuendo to malign and cast odium upon the fair name and character of public officials, and intimates that the "administration of the affairs of this county is rotten to the core," it is high time to strip the mask of hypocrisy from the face of this man and turn on the calcium light that the people may judge. When a man of this stripe and calibre of William E. Fish, who should first wash his own dirty linen, undertakes to criticize honest and respectable citizens and defames his colleagues at the bar, behind their back, the time has come to clean the job up forever and amen, politically and otherwise.

For some time the singular and queer transactions of this man Fish have been an open secret in this community, and reports have reached us which must, if true, put the stamp of condemnation and public disgrace upon the fellow, but we forbore comment, and were reluctant to publish the damaging reports which were being circulated concerning him by respectable and reputable persons who had been his clients. We were averse to giving them publicity, solely out of respect and pity for his wife and children, but since he has had the presumption and temerity to render suspected, honorable and upright officials and men, who are our intimate friends, we propose to let his clients speak, who claim to have been duped and defrauded by this great critic, this bogus reformer and foul innuendus, while acting as their attorney, and to that end we publish below their sworn affidavits, the originals of which we are requested to hand Judge McElhinney in order that proper steps may be taken in determining his future status as an attorney and officer of the court:

THE AFFIDAVITS.

State of Missouri, city of St. Louis, ss.

Carter S. Lyons, of lawful age, being duly sworn upon his oath, makes affidavit and says that he engaged one William E. Fish, an attorney at law, of Clayton, Missouri, to bring a divorce suit, and paid the said Fish the sum of ten dollars as a retaining fee, of which the following is a receipt for said payment: "Received of Carter S. Lyons ten dollars for legal services for obtaining divorce in suit of Lyon v. Lyon. (Signed) William E. Fish." That said Fish took no steps towards instituting said suit, but soon thereafter demanded of affiant the further sum of ten dollars, which said sum affiant paid to said Fish, but that the said William E. Fish, notwithstanding said last payment of ten dollars, making twenty dollars in all, was paid during the month of July, 1898, did not at that time and never has taken any steps or rendered any services in the prosecution of the suit, which he was retained to bring, that subsequently, to-wit: In the month of November, 1898, affiant demanded of said Fish the return to him of the money above referred to, but that the said Fish failed and refused to return the same, or any part thereof.

CARTER S. LYONS,

3211 LaSalle Street.

Subscribed and sworn to before me this 21st day of January, A. D. 1902. My term expires October 2, 1903.

(Seal.) HY. G. OHEIM,

Notary Public, City of St. Louis, Mo.

State of Missouri, county of St. Louis, ss.

Be it known that on the twenty-eighth day of January, 1902 personally appeared before me Solomon Marks, of lawful age, who, being duly sworn, deposeth and saith, that on or about the twenty-fourth day of April, 1901, he presented a petition to the county court of St. Louis county, Missouri, for a license to keep a saloon in St. Louis county, Missouri, and in the forenoon of that day lawyer W. E. Fish appeared before the court and asked that the court lay the petition over for one week, as he had a remonstrance to said petition, and that there were two men at his house the night before (Sunday night), Henninger and Lee, as remonstrators. "During the noon hour I was advised to see Fish. And on seeing Fish, he demanded of me $ 25, and he would withdraw the remonstrance," and that he, Marks, then and there paid said Fish $ 25. And about one o'clock in the afternoon of said day Fish went into court and told the court there was a remonstrance against Mr. Marks' petition for a saloon, but that this was not the Marks; that it was some other Marks, and that this Marks had a good character, and asked the court to grant this Marks a saloon license, and that everything was all right, and that the court did grant said license, and that he (Marks) made an investigation after the license was granted, and found that there had been no remonstrance at all against his petition for a saloon license by any one. And after I saw...