Barber v. St. Louis Dispatch Co.

• Decision Date: 02 March 1877
• Citation: 3 Mo.App. 377
• Parties: BELLE BARBER, Respondent, v. ST. LOUIS DISPATCH COMPANY, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 377

BELLE BARBER, Respondent,

v.ST. LOUIS DISPATCH COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 2, 1877.

1. A fair, uncolored account of the whole proceedings had in public, before a court or public magistrate, is a privileged communication, whether the proceedings be preliminary, ex parte, or otherwise; but there must be so much publicity in the proceedings as is implied in a submission with a view to judicial action.

2. A publication of the contents of a petition for divorce which, though filed, has not been presented to a court at any sitting, with a view to judicial action, is not a privileged communication, especially if it makes statements of a kind which would disgrace or degrade, or imputes a crime to, plaintiff. Such a publication raises a legal presumption of malice.

3. The mere fact that a paper has been “filed” in the office of a clerk of a court will not make the publication of its contents a privileged communication.

4. In an action for libel, where the principal issue is upon the question of malice, it is error to instruct the jury that, “if they believe that the proceedings, an account of which was published by defendant, had taken place so long before the publication that it had ceased to be an item of current news, they will find for plaintiff.”

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Marshall & Barclay and Chandler & Young, for appellant, cited: Const. 1865, Bill of Rights, sec. 15; Wag. Stat. 420, sec. 16; Matthews v. Beach, 5 Sandf. 356; Cox v. Coleridge, 1 Barn. & Cress. 37; The Commonwealth v. Blanding, 3 Pick. 304; Skinner v. Powers, 1 Wend. 451; National Bank v. Currie, 44 Mo. 91; Bank v. Murdock, 62 Mo. 70; 2 Greenl. on Ev., sec. 256; Sedgw. on Dam., ch. 3; Harper v. Indianapolis & St. Louis R. R. Co., 44 Mo. 488; Otto v. Bent, 48 Mo. 23; Detroit Free Press Co. v. McArthur, 16 Mich. 447; Sawyer v. Hannibal & St. Joseph R. R. Co., 37 Mo. 240; Lambert v. Craig, 12 Pick. 199; Buckley v. Knapp, 48 Mo. 153; Freeman v. Tinsley, 50 Ill. 497.

Everett W. Pattison, for respondent, cited: Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; Stanley v. Webb, 4 Sandf. 21; Matthews v. Beach, 5 Sandf. 264; Wason v. Walter, Law Rep. 4 Q. B. 73, 85; Duncan v. Thwaites, 3 Barn. & Cress. 556; Edsall v. Brooks, 26 How. Pr. 426; Lewis v. Levy, 1 El. B. & E. 537; Ryalls v. Leader, Law Rep. 1 Ex. 296; Otto v. Bent, 48 Mo. 23; Gerren v. Hannibal & St. Joseph R. R. Co., 60 Mo. 410; Newman v. Lawless, 6 Mo. 279; Sears v. Wall, 49 Mo. 359.

HAYDEN, J., delivered the opinion of the court.

This is an action for an alleged libel upon the respondent, published in the St. Louis Dispatch, a newspaper owned and circulated by the appellant. The petition states that the plaintiff had formerly been the wife of one Lewis D. Langley, and had, long before the date of the publication complained of, procured a divorce from him, and was restored to her maiden name of Belle Barber; that she was well known by the name of Belle Langley; that defendant was the proprietor of a newspaper called the St. Louis Dispatch, and published therein, of and concerning her, certain false, scandalous, and defamatory matter. The publication complained of was the following:

“CONJUGAL INFELICITY.

Lewis D. Langley, formerly a resident of the town ofLitchfield, Ill., has brought suit for divorce from his wife, Belle Langley, accusing her of having, during the summer of 1871, committed adultery with George Pomeroy, a conductor on the St. Louis & Indianapolis Railroad, at Litchfield, and subsequently with him and divers other men in St. Louis. About a year after his marriage to defendant, which occurred August 28, 1869, a child was born, of which he denies being the father.”

The petition then alleges damages and asks for judgment.

The answer denied any knowledge or information as to the divorce of plaintiff and restoration to her maiden name. It admits the publication of the words and matter as charged, but alleges that the same was a fair and substantive report of a legal proceeding in the Circuit Court of St. Louis County, and that the publication was made in the course of its business, without intent to defame plaintiff.

Plaintiff, in her reply, denied that the publication was a fair and substantive report of a legal proceeding in said court, but alleged that the proceeding referred to was a mere exparte complaint filed in said court long anterior to the date of the publication, and that the same was accompanied by defamatory observations and comments; and denied that it was made in the ordinary course of business, or that it was the business of defendant, or its legal right, to publish and circulate defamatory matter of and concerning plaintiff, or that it had any right to publish the article complained of.

On the trial the plaintiff proved that she had been divorced from Louis D. Langley on January 18, 1873, and that her maiden name had been restored. The publication, as above given, was then read in evidence. The defendant offered evidence tending to prove that the managers of the newspaper did not know plaintiff, and had no desire or intention to injure her; that the proceedings of the courts were published only as news, and that the publication complained of was made in the usual course of defendant's business. The defendant introduced in evidence a transcript of the record in the suit against the present plaintiff for divorce, by which it appears that on June 18, 1873, the petition was filed and summons issued; that there was personal service, on June 25th, on the defendant in the case, Belle Langley; that she filed her answer in the following October, alleging her prior divorce, and that thereupon Louis D. Langley dismissed his suit. It was the petition in this last-named case that was the subject of the publication, and the appellant claimed that the publication was a fair report of the petition. The respondent denied this, and insisted that by the insertion of the words which we have put in italics, and otherwise, the publication became something different from a mere statement of the facts as alleged in the petition.

At the request of the respondent the following instructions were given:

“1. The jury are instructed that the publisher of a newspaper has the right to publish, as an item of current news, a fair report of the proceedings of a court of justice, provided both the parties interested in such proceedings are before the court. But he has no right to publish a report of a mere preliminary proceeding against a party, or of the statements made by one party in a petition filed for the purpose of instituting suit against another. If, therefore, the jury believe that the defendant's newspaper contained a report of a preliminary proceeding against the plaintiff, or a report of statements contained in a petition filed by some third party against her for the purpose of instituting suit against her, they will find for plaintiff.

2. The jury are instructed that the publisher of a newspaper has the right to publish only such proceedings of courts as are sufficiently recent to constitute them current news. If, therefore, the jury believe that the proceeding an account of which was published by the defendant in this case had taken place so long before the publication that it had ceased to be an item of current news, they will find for the plaintiff.

3. The law presumes that a man intends the natural consequences of his acts. If, therefore, the jury believe that the natural consequence of the publication complained of was to defame and injure plaintiff, they may properly infer that such was the intention of defendant, and that the publication was maliciously made.

4. If the jury find for the plaintiff, they will assess her damages at such sum as will be a full compensation for the injury naturally and probably resulting from the publication complained of; and if the jury believe that the publication was malicious, they may give such sum by way of exemplary damages as they shall think proper, the whole amount of damages not to exceed ten thousand dollars.”

The court gave the following instruction for the appellant:

“The jury are instructed that, if they believe from the evidence that defendant made the publication complained of without malice or intent to injure plaintiff, then the plaintiff is entitled to recover only such compensatory or actual damage as she has shown to have sustained by reason of said publication, and nothing more.”

The following are the material instructions which were asked by the appellant and refused:

“1. This court instructs the jury that on the pleadings and evidence in this case they will find for defendant.

2. If the jury believe from the evidence in this suit that the publication complained of was a fair report of the proceedings or petition filed in court in the case of Louis D. Langley v. Belle Langley, they will find for defendant.

3. The jury are instructed that, if they believe from the evidence that the publication complained of was made by defendant in the ordinary course of its business, as a fair and impartial report of a proceeding commenced in the Circuit Court of St. Louis County, and is a fair report of a bill for divorce, filed on the 18th day of June, 1873, by Louis D. Langley against Belle Langley, and was published without malice or intent to injure plaintiff, they will find for defendant.

4. In order for the jury to find a verdict for the plaintiff in this case, they must first find that there was actual malice on the part of defendant in making the publication sued for, and there is no evidence of actual malice in this case.”

The jury found for the plaintiff in the sum of $3,500. On a motion for new trial the court gave the plaintiff the option of remitting $1,000 of the damages, or having the motion sustained. The plaintiff remitting, judgment was entered for $2,500.

The general question here involved is whether the publication in the newspaper of ...