Brown v. Publishers: George Knapp & Co.

• Decision Date: 16 June 1908
• Citation: 213 Mo. 655,112 S.W. 474
• Parties: BROWN v. PUBLISHERS: GEORGE KNAPP & CO.
• Court: Missouri Supreme Court

112 S.W. 474

213 Mo. 655

BROWN v. PUBLISHERS: GEORGE KNAPP & CO.

Supreme Court of Missouri, Division No. 2.

June 16, 1908.

Rehearing Denied July 14, 1908.

1. LIBEL AND SLANDER — PRIVILEGED COMMUNICATIONS—EXTRADITION PROCEEDINGS.

A proceeding before a Governor for the extradition of a fugitive is of a quasi judicial character, and a full and fair report thereof is privileged.

2. SAME—REPORT OF LEGAL PROCEEDINGS.

A newspaper article, published after the Governor of a sister state had rendered his decision in a proceeding for the extradition of a fugitive, which refers to the effect of the decision on the fugitive and states that the prosecuting attorney of Missouri instituting the criminal prosecution may, on his visiting the sister state, be prosecuted for perjury, and which sets forth extracts from the brief of counsel for the fugitive charging the prosecuting attorney with perjury in making a false affidavit, etc., shows on its face that it is not a report of the proceedings before the Governor of the sister state and is not privileged.

3. SAME.

A newspaper article, stating that the prosecuting attorney of a county in Missouri instituting a criminal prosecution had been charged with perjury and with the making of a false affidavit, that the attorney for accused in proceedings before the Governor of a sister state for the extradition of the accused charged the prosecuting attorney with perjury, in that he had made an affidavit when he knew that it was untrue, by swearing to facts as true of which he had no knowledge, and that the counsel for accused claimed that the charge of perjury was based on a section of the "Penal Code," etc., charges the commission of perjury by the prosecuting attorney and contains no statement of attending circumstances showing that the charge is unfounded.

4. SAME—WORDS ACTIONABLE PER SE.

A publication charging one with perjury is actionable per se.

5. SAME—PRIVILEGED COMMUNICATIONS — REPORTS OF LEGAL PROCEEDINGS.

A fair and impartial account of judicial proceedings is, generally speaking, a privileged publication; but, if a party is allowed to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusion which he draws from the evidence, and he must not state his opinion of the conduct of the parties or impute motives therefor.

6. SAME.

The headlines at the beginning and in the body of a newspaper article relating to proceedings before the Governor of a sister state for the extradition of a fugitive, which, in referring to the prosecuting attorney instituting the criminal prosecution, state: "Attack on Attorney Brown. Baking Powder Magnate's (fugitive) Lawyer, in his Brief, Openly Charges Missouri Prosecutor with Perjury," etc.—are not privileged, but are unauthorized comments and are libelous.

7. SAME.

Though a counsel may lawfully speak in court what he believes to be true, he cannot publish his speech in the press, and, though words reflecting on the character of an individual spoken or written in due course of a judicial proceeding are privileged, their publication in good faith and as a matter of news is not privileged.

8. SAME—SUFFICIENCY OF CHARGE.

Words charging one with the commission of a crime as heinous as perjury are actionable though they do not set forth the particulars of the case in language necessary to make a good indictment.

9. SAME.

Words making a general charge of perjury are actionable in themselves without any colloquium.

10. SAME—INSTRUCTIONS.

In an action for libel based on a newspaper article charging plaintiff with perjury in making an affidavit without explaining that plaintiff was not technically guilty of perjury, an instruction that it is no offense to make an affidavit, though affiant had no knowledge of the facts, and though the statement in the affidavit was not in accord with the facts, and to constitute perjury the affidavit must be willfully, corruptly, and falsely made, is properly refused.

11. SAME

Where, in an action for libel based on a newspaper publication charging plaintiff with perjury, defendant admitted making the publication, but denied malice or ill will, and sought to justify on the ground of privileged communication, and the publication was not privileged, the refusal to direct a verdict for defendant was proper, the falsity of the charge and the existence of malice being presumed.

12. SAME—JUSTIFICATION.

Where, on a trial for libel based on a newspaper article stating that plaintiff had committed perjury and had made an affidavit he knew to be false, defendant admitted the publication as alleged and denied malice and pleaded privilege, a justification to the extent that the publication was true as to the charge that plaintiff had made an affidavit of facts of which he had no knowledge tendered a false issue.

13. SAME.

Where, on a trial for libel based on a newspaper article charging plaintiff with perjury and with having made an affidavit he knew to be false, defendant admitted the publication, denied malice, and pleaded privilege, and the court submitted the two defamatory charges to the jury, an instruction that all matters defamatory of plaintiff in the publication complained of would be deemed false by the jury in making its verdict was not erroneous, though defendant sought to justify by claiming that plaintiff had made an affidavit of facts of which he was ignorant.

14. TRIAL—INSTRUCTIONS.

On a trial for libel based on a publication not privileged, an instruction ignoring the defense of privilege is not erroneous.

15. LIBEL AND SLANDER—INSTRUCTIONS.

In an action for libel based on a newspaper article charging plaintiff with perjury and with having made an affidavit he knew to be false, an instruction that if defendant published the article in good faith, believing the same to be a proper item of news and a part of the report of occurrences in extradition proceedings, without malice toward plaintiff, and not negligently or in wanton disregard of plaintiff's rights, plaintiff was not entitled to recover any exemplary damages, was not erroneous; the charges of perjury and knowingly making a false affidavit, being actionable per se and implying malice.

16. SAME—DAMAGES—"ACTION FOR LIBEL."

An action for libel is an action to recover damages for injuries to a man's reputation and good name, and it is not necessary, in order to recover general damages for words which are actionable per se, that plaintiff should have suffered any actual or constructive pecuniary loss; but plaintiff is entitled to recover as general damages for the injury to his feelings which the libel has caused and the mental anguish and suffering which he has endured as a consequence thereof.

17. SAME—QUESTION FOR JURY.

The question of damages in a case of libel and slander is peculiarly within the province of the jury, and, unless the damages are so unconscionable as to impress the court with their injustice, and thereby induce the court to believe that the jury were actuated by prejudice or corruption, it will not interfere with the verdict.

18. SAME—EXCESSIVE DAMAGES.

In an action for libel based on a publication in a newspaper charging plaintiff, an attorney at law, with having committed perjury in instituting a criminal prosecution while acting as prosecuting attorney of a county, a verdict of $5,000 actual damages and $5,000 punitive damages was not excessive, in view of the large circulation of the newspaper.

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

Action by Frank M. Brown against Publishers: George Knapp & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Lehmann & Lehmann and W. S. Pope, for appellant. Edwin Silver and J. L. Smith, for respondent.

GANTT, J.

The plaintiff brought this action against the defendant, a corporation organized under the laws of this state with a capital stock of $500,000, and the owner and publisher in the city of St. Louis of a daily newspaper known as the "St. Louis Republic." It was alleged that the daily edition of this paper exceeds 100,000 per day. Petition states:

That on February 2, 1904, and prior thereto, there was pending at the city of Albany, N. Y., before the Governor of the state of New York, a certain proceeding wherein the Governor of the state of Missouri sought to secure the extradition from the state of New York of one William Ziegler, charged by an indictment theretofore returned into the circuit court of Cole county with the crime and offense of bribery alleged in said indictment to have been committed in said Cole county, state of Missouri. That on February 3, 1904, the defendant, in said newspaper and in its daily edition thereof of February 3, 1904, having reference to the aforesaid extradition proceeding, did wrongfully, wickedly, and with malice print and publish concerning plaintiff herein the following false, libelous, and defamatory words and matter in manner and form as follows, to wit:

"Ziegler Dares Not Leave New York.

"If He Goes to Connecticut Home New Extradition Proceedings may be Instituted.

"Attack on Attorney Brown.

"Baking Powder Magnate's Lawyer, in His Brief, Openly Charges Missouri Prosecutor with Perjury.

"Republic Special.—New York, Feb. 2. William Ziegler's escape from extradition to Missouri, through the grace of Governor Odell, has left him in a decidedly awkward position. Mr. Ziegler will run a risk, should he leave the jurisdiction of New York State, of being arrested, should the Missouri authorities continue their efforts to bring him within the jurisdiction of Missouri. Mr. Ziegler has a country home in Connecticut and his attorneys are inclined to the belief that Attorney General Crow will be prepared to requisition the Governor of the New England state for Mr. Ziegler's return, should he take up his residence there even temporarily which he frequently does. Mr. Ziegler's discomfiture, however, is not the only result of the decision...