Brown v. Globe Printing Company

• Citation: 112 S.W. 462,213 Mo. 611
• Parties: FRANK M. BROWN v. GLOBE PRINTING COMPANY, Appellant
• Decision Date: 14 July 1908
• Court: Missouri Supreme Court

112 S.W. 462

213 Mo. 611

FRANK M. BROWN v. GLOBE PRINTING COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 14, 1908 ^[*]

Appeal from Cole Circuit Court. -- Hon. Wm. H. Martin, Judge.

Affirmed.

Ashley C. Clover and W. S. Pope for appellant.

(1) A publication of all the proceedings concerning the extradition proceedings in the case of the State of Missouri against William Ziegler was privileged, if fair and impartial. 22 Cyc. Libel and Slander, p. 411; 18 Am. and Eng. Ency. Law (2 Ed.), 1043, 1045 and 1046; Boogher v. Knapp, 97 Mo 122; Beiser v. Scripps-McRae Pub. Co., 113 Ky. 383; McBee v. Fulton, 47 Md. 403; Barrows v Bell, 7 Gray 301; Wason v. Walter, 4 Law Rep. Q B. 73; Tresca v. Maddox, 15 Am. Dec. 214; Bissell v. Press Pub. Co., 66 Hun 551; Stuart v. Press Pub. Co., 82 N.Y.S. Court 401; Locke v. Bradstreet, 22 F. 71; Usill v. Hailes, 3 C. P. D. 319. (2) It did not lose that character because abridged and condensed, if it remained fair and impartial. Boogher v. Knapp, 97 Mo. 122; Newell on Slander and Libel, p. 554, sec. 161; 18 Am. and Eng. Ency. Law, 1045; Folkard's Starkee on Slander and L., sec. 227; Tresca v. Maddox, 15 Am. Dec. 214; Cowley v. Pulsifer, 137 Mass. 392; Risk Alley Bey v. Whitehurst, 18 L. T. U.S. 615; Lewis v. Levy, El., Bl. & El. 537. (3) The headlines of the publication are likewise privileged if they were a fair index of the matter contained in the publication. Lawyers' Co-operative Pub. Co. v. West Pub. Co., 32 A.D. 585; Edsall v. Brooks, 2 Rob. (N. Y.) 29; Salisbury v. Advertiser Co., 45 Hun 120. (4) The presumption of malice arising from the false publication of libelous matter is overcome when the occasion of the publication is privileged, and there can be no recovery except upon proof of actual or express malice. Wagner v. Scott, 164 Mo. 301; Finley v. Steele, 159 Mo. 299; Sullivan v. Com. Co., 152 Mo. 268; Hancock v. Blackwell, 139 Mo. 451; Boogher v. Knapp, 97 Mo. 122; Briggs v. Garrett, 111 Pa. 404; Neeb v. Hope, 111 Pa. 145; Hamilton v. Eno, 81 N.Y. 124; Bacon v. Railroad, 66 Mich. 166; Conroy v. Pittsburg Times, 139 Pa. 334; Bradstreet Co. v. Gill, 72 Tex. 115; Behe v. Railroad, 71 Tex. 424; Publishing Co. v. Gamble, 115 Tenn. 663; Wright v. Woodgate, 2 Cromp. M. & R. 573; Newell on Slander and Libel (2 Ed.), p. 391, sec. 6; Lewis v. Champan, 18 N.Y. 369. (5) The inaccuracy or unfairness of a publication alleged to be privileged is no evidence of malice, nor, if such publication is found to be fair and impartial, can the character of the publication be considered on the question of actual or express malice. Authorities cited under point 4. (6) Defendant was entitled to have its defense of privileged publication clearly and pointedly presented to the jury, which the court's instruction of its own motion failed to do. Mullally v. Greenwood, 127 Mo. 138; Humbird v. Railroad, 110 Mo. 82; Kountz v. Kaufman, 31 Mo.App. 397; Gray v. McDonald, 28 Mo.App. 492; Cahn v. Reid, 18 Mo.App. 115; Sawyer v. Railroad, 37 Mo. 263; Becraft v. Grist, 52 Mo.App. 586; State v. Pettit, 119 Mo. 410; Greer v. Railroad, 80 Mo. 555; Medlin v. Brooks, 9 Mo. 106. (7) The court erred in giving plaintiff's instructions 7 and 11, because they assume to state all the facts necessary to a recovery and fail to direct the jury's attention to defendant's affirmative defense of privilege, which is not correctly presented in any instruction given bye the court. Drum-Flato Co. v. Bank, 107 Mo.App. 432; Carder v. Primm, 60 Mo.App. 423; Wallace v. Wright, 82 Mo.App. 252; Cultivator Co. v. Railroad, 64 Mo.App. 312; Borden v. The Falk Co., 97 Mo.App. 566; Brownlow v. Wallard, 66 Mo.App. 642; Carroll v. Railroad, 60 Mo.App. 468; McQuillan's Instructions, secs. 127-128; Hanheide v. Railroad, 104 Mo.App. 323. (8) The giving of instruction 2, requested by defendant, and the giving of the instruction of its own motion by the court was error, as they are inconsistent and contradictory, and must have misled the jury. Henschen v. O'Bannon, 56 Mo. 289; Otto v. Bent, 48 Mo. 23; Stevenson v. Hancock, 72 Mo. 614; Spillane v. Railroad, 111 Mo. 555; Livingston v. Railroad, 170 Mo. 452; Emmons v. Quade, 176 Mo. 32. (9) The court should have directed a verdict for the defendant, as requested, at the close of the evidence, for the occasion was privileged, the report of the proceedings absolutely fair and impartial in relation to their effect on plaintiff's character, and there was no evidence, either intrinsic or extrinsic, of actual malice on the part of the defendant. Newell on Slander and Libel (2 Ed.), p. 392, sec. 10; Neeb v. Hope, 111 Pa. St. 145; Briggs v. Garrett, 111 Pa. St. 404; Nichols v. Eaton, 110 Iowa 509. (10) The court erred in giving plaintiff's instruction 3, and in refusing defendant's refused instruction 2, for where in an action for libel the words set forth in their ordinary sense import a charge of crime, so as to be libelous, yet if they are connected with other words which rebut the idea of criminality, there is no libel. Johnson v. St. Louis Despatch Co., 2 Mo.App. 565, 65 Mo. 539; Hall v. Adkins, 59 Mo. 144; Trimble v. Foster, 87 Mo. 49; Carpenter v. Hamilton, 185 Mo. 603; Grimes v. Thorp, 113 Mo.App. 652; Israel v. Israel, 109 Mo.App. 366; Aeple v. Wright, 17 Ohio St. 238; Alderson v. Auerswald, 80 Mo.App. 370; Brown v. Meyers, 40 Ohio St. 99; Faussett v. Clark, 48 Md. 494; Morton v. Ladd, 5 N.H. 203; Miller v. Johnson, 79 Ill. 58; Edgerly v. Swain, 32 N.H. 478; Palmer v. Anderson, 33 Ala. 78; Wing v. Wing, 62 Me. 62; Harrington v. Miller, 11 Kan. 480; Hoskins v. Torrence, 5 Blackf. (Ind.) 417; Carmichael v. Shiel, 21 Ind. 66; Walford v. Herald Pr. Co., 133 Ind. 374; Hawkins v. New Orleans Tr. Co., 29 La. Ann. 134; Randall v. Evening News Co., 101 Mich. 561; Cramer v. Noonan, 4 Wis. 231; 25 Cyc., Slander and Libel, p. 275; 18 Am. and Eng. Ency. Law (2 Ed.), 987. (11) The verdict is against the weight of the evidence, is excessive in amount, and is the result of bias and prejudice on the part of the jury towards defendant. (12) The plaintiff herein was only entitled to recover such damages as he may have suffered by the reason of the publication of the alleged defamatory matter in Cole county.

Edwin Silver and J. L. Smith for respondent.

(1) 1. It is sufficient to make a written or printed publication libelous and actionable per se that it is false and tends to expose one to public hatred, contempt and ridicule or to blacken his reputation. It is not necessary that the publication should charge a crime or indictable offense. The distinction between oral slander and written slander or libel in the foregoing respect is well recognized in this State. Nelson v. Musgrave, 10 Mo. 648; Price v Whitely, 50 Mo. 439; McGinnis v. George Knapp & Co., 107 Mo. 131; Ukman v. Daily Record Co., 189 Mo. 378; Manget v. O'Neill, 51 Mo.App. 26. 2. A newspaper is responsible for what it publishes, the same as an individual. Johnston v. Post-Dispatch Co., 65 Mo. 539; Arnold v. Saying Co., 76 Mo.App. 159; State ex inf. v. Sheppard, 177 Mo. 244; Shekell v. Jackson, 10 Cush. 25; Haynes v. Press Co., 169 Mass. 512; McDonald v. Woodruff, 2 Dillon 214; 2 Greenleaf on Evidence (16 Ed.), sec. 398. "The authorities, English as well as American, have generally held the publisher and editor of a newspaper to the same rigid responsibility with any other person who makes injurious communications; malice on his part being conclusively inferred if the communications are false in fact. It is no defense that they have been copied with or without comment from another paper, or that the source of the information is stated at the time and the information is believed to be true." Fitzpatrick v. Publishing Co., 48 La. Ann. 1135. That the name of the author of the publication was given does not relieve the paper. Hotchkiss v. Oliphant, 2 Hill 510. To repeat or publish a slanderous statement is to indorse it as genuine. Bee Pub. Co. v. Shields, 94 Neb. 1029; Meyer v. Adams, 1 Mo.App. 329. Nor does the want of intention to vilify or defame render an objectionable publication any the less a libel. Curtis v. Mussey, 6 Gray 261. Though the want of such intention may be shown in mitigation of exemplary damages. Jones v. Murray, 167 Mo. 25. (2) Words charging one with having committed perjury are actionable per se. Newell on Slander & Libel (2 Ed.), p. 124; Perselly v. Bacon, 20 Mo. 331; Bricker v. Potts, 12 Pa. St. 200; Cooley on Torts (2 Ed.), p. 233 (note); Holt v. Turpin, 78 Ky. 433. (3) The defense of privilege interposed and relied on by defendant is not well taken. The quotations from the brief of Mr. Bowers and his associates, filed in the Ziegler extradition proceeding before the Governor of New York, are not privileged matter. A statement in a newspaper of the circumstances of a cause tried in a court of justice given as from the mouth of counsel, instead of being accompanied or corrected by the evidence, is not such a report of the proceedings of a court of justice as a newspaper is privileged to make. Saunders v. Mills, 6 Bing. 213; Rex v. Carlile, 3 B. & A. 167; Rex v. Creevey, 1 M. & S. 273. The speech of counsel in a judicial proceeding does not afford matter for a privileged publication, and if it is scandalous, its publication is a libel. Com. v. Godshalk, 13 Phila. 875. Publication of a court proceeding is not privileged unless it is a fair, complete and impartial statement of the facts. Hawkins v. Globe Printing Co., 10 Mo.App. 174. The report of a judicial proceeding to be privileged must be an accurate and impartial account of what actually occurred. Post Pub. Co. v. Moloney, 50 Ohio St. 71; Stanley v. Webb, 4 Sandf. 21. As a general rule a full, fair and correct account of a trial in a court of justice is a privileged publication, but the...