Brown v. Globe Printing Co.

• Decision Date: 16 June 1908
• Parties: BROWN v. GLOBE PRINTING CO.
• Court: Missouri Supreme Court

112 S.W. 462

213 Mo. 611

BROWN v. GLOBE PRINTING CO.

Supreme Court of Missouri, Division No. 2.

June 16, 1908.

Rehearing Denied July 14, 1908.

1. LIBEL AND SLANDER — PRIVILEGED COMMUNICATIONS — NATURE OF PROCEEDINGS.

A proceeding before the Governor of a state for the extradition of a fugitive from the justice of another state, on the demand of the Governor of the latter state, is of a quasi judicial character, and of such importance to the public that a full or abridged report thereof, if fair and impartial, is privileged, though private rights may, by reason of the report, be violated.

2. SAME.

The rule that, to justify as privileged a publication of proceedings, the proceedings must have been directly judicial, or in a court of justice, is extended to executive and legislative proceedings and investigations.

3. SAME.

All the proceedings with respect to an indictment after its return into court and in connection therewith, including proceedings for the extradition of accused, constitute one privileged occasion, and a full or abridged report thereof, if fair and impartial, is privileged, so far as the matters connected therewith are not mere hearsay.

4. SAME.

Whether an abridged report of proceedings constituting a privileged occasion has the same effect on the character of one referred to as a full report would have is a question for the jury.

5. SAME—"PRIVILEGED COMMUNICATION."

The rule that a fair account of the whole proceedings in a court or before a public magistrate, sitting publicly, is a privileged communication, whether the proceedings are on a trial or on a preliminary and ex parte hearing, implies that there must be a hearing of some kind, and, in order that the ex parte nature of the proceedings may not destroy the privilege, there must be at least so much of a public investigation as is implied in a submission to the judicial mind with a view to judicial action.

6. SAME.

The rule that a publication of judicial or quasi judicial proceedings in cases of civil character may be privileged, on the ground of public interest, must apply to criminal cases, for the public have as much interest in a criminal as in a civil proceeding.

7. SAME.

A publication is not shorn of its privileged character because it is abridged, provided it remains fair and impartial.

8. SAME.

Full or abridged reports of a legal proceeding continued from day to day, if as fair and impartial as the circumstances will permit, are privileged; but all comment on the case must be deferred until the proceedings terminate.

9. SAME.

The headlines of a newspaper publication of the report of judicial or quasi judicial proceedings are not a part of the proceedings, but are the voluntary statements of the publisher.

10. SAME.

The headlines of a newspaper publication of a report of extradition proceedings before the Governor of a state: "Ziegler's [alleged fugitive's] Lawyer calls Brown [prosecuting attorney] Liar. Accuses Him of Perjury. Declares if Missourian Visits New York He Will be Arrested. Insists Cole County Prosecutor Made Affidavit He Knew Was False"—are not privileged, and are libelous, even though the matter could be deemed otherwise privileged, since the publication was equivalent to a comment unnecessary to a fair report of the proceedings and likely to raise inferences detrimental to the prosecuting attorney.

11. SAME.

While words reflecting on the character of an individual, spoken or written in due course of a judicial or quasi judicial proceeding, if pertinent to the issue, are privileged, the privilege does not allow the publication of the defamatory words in a newspaper, though the publication is made in good faith and as a matter of news.

12. SAME.

A publication of only such parts of the brief of counsel appearing in behalf of an alleged fugitive in proceedings for his extradition as reflected on the character and integrity of the prosecuting attorney instituting the criminal prosecution, and imputing to him crime, is not privileged.

13. SAME—ACTIONS—VERDICT—EFFECT.

Where the question whether a publication was a libel and was properly the subject of an action for damages was submitted to the jury, and they were told that on this question they were the judges of the law as well as the facts, a verdict awarding compensatory and punitive damages was a finding that the article was a libel and not privileged.

14. APPEAL AND ERROR — INVITING ERROR — RIGHT TO COMPLAIN.

A party cannot predicate error on the action of the court in giving an instruction asked by himself.

15. SAME.

Where the court gave an instruction requested by a party and refused another requested instruction, the party could not predicate error either on the refusal of the one or the giving of the other instruction, on the ground that, if the instruction refused was properly refused because it misstated the law, the instruction given, containing a similar statement of the law, was improperly given.

16. LIBEL AND SLANDER—ACTIONS—QUESTION FOR COURT—PRIVILEGED OCCASION.

It is for the court to determine whether the occasion on which an alleged defamatory statement was made was such as to render the statement privileged.

17. TRIAL — INSTRUCTIONS —REQUESTS.

It is proper to refuse an instruction in effect covered by the instructions given.

18. LIBEL AND SLANDER—PRIVILEGED COMMUNICATION.

One is not at liberty, after the termination of a legal proceeding and the rendition of the decision therein, to publish excerpts from briefs of counsel which reflect on the character of another, and a publication of such excerpts 22 days after the filing of the brief, and 2 days after the rendition of the decision, is not privileged.

19. SAME—MALICE—EVIDENCE.

While a condensed report of proceedings constituting a privileged occasion, if prepared faithfully and truly, is privileged, the suppression of parts of the testimony in the proceedings, which would qualify the defamatory matter contained in the report, is evidence of malice, which destroys the privilege.

20. SAME.

The jury, in determining whether one sued for libel was actuated by actual malice or ill-will toward the person defamed when it published the libel, may take into consideration the character of the publication itself.

21. SAME.

Where, on a trial for libel for publishing an article relating to extradition proceedings before a Governor, malice, though not disclosed by direct evidence, was inferable from the publication itself, and from the facts that part of the testimony on the hearing which would have qualified the defamatory matter complained of was omitted, and that only such part of a brief of counsel was published as related to the charge of perjury made against plaintiff, the refusal to submit affirmatively the defense of privilege was not erroneous because of want of evidence on which to predicate it.

22. TRIAL—INSTRUCTIONS—REQUESTS.

Where an instruction given by the court is not misleading, a party desiring a more pointed instruction must request it.

23. SAME.

The court is not required to give instructions of its own motion in a civil case.

24. SAME.

An instruction failing to give any statement of facts from the evidence on which a verdict for defendant could be found was not erroneous, where no such facts were disclosed by the evidence.

25. APPEAL AND ERROR—ERROR IN FAVOR OF PARTY COMPLAINING.

A party cannot complain of an error operating in his own favor.

26. TRIAL—INSTRUCTIONS.

It is not necessary that an instruction should refer to another, or that the issues involved should be presented to the jury in one instruction, and where the instructions taken as a whole, fairly present the issues and are not calculated to mislead the jury, they are sufficient.

27. LIBEL AND SLANDER—RIGHT TO RECOVERY.

A publication of an article, which is libelous per se, and which is not privileged, gives to the person defamed the right to a verdict.

28. SAME—DAMAGES.

The jury are the sole judges of the damages to be awarded for the publication of a libelous article, and their finding will not be disturbed unless the verdict is so excessive as to clearly indicate that it was the result of bias and prejudice.

29. SAME.

In an action for newspaper libel based on an article charging an attorney with committing perjury while acting as prosecuting attorney of a county, a verdict of $2,000 actual damages and $10,000 punitive damages is not excessive, where malice is inferable from the publication itself, and from the fact that matter which would have explained the defamatory words was omitted.

Appeal from Circuit Court, Cole County; Wm. H. Martin, Judge.

Action by Frank M. Brown against the Globe Printing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ashley C. Clover and W. S. Pope, for appellant. Edwin Silver and J. L. Smith, for respondent.

BURGESS, J.

This is an action for damages for libel. Plaintiff recovered judgment for $2,000 actual damages and $10,000 punitive damages against the defendant, from which judgment, after ineffectual motions for a new trial and in arrest, defendant appealed.

The petition sets forth, in substance: That plaintiff is a citizen of this state and an attorney at law, engaged in the practice of his profession at Jefferson City, Cole county, Mo.; that defendant is a business corporation of this state, with a capital stock of $500,000, and at the times mentioned in the petition was engaged in printing, publishing, and selling a daily and other editions of a newspaper named and styled the "St. Louis Globe-Democrat"; that the defendant corporation is the sole owner of said newspaper, and printed the same in the city of St. Louis, Mo., where it has its principal office, and published, circulated, and sold the same not only in St. Louis, but in different counties of this state, including Cole county, and also in the states of Illinois, Texas, Arkansas, Kansas, Iowa, the Indian Territory, and elsewhere; that the circulation...