Buckley v. Knapp

• Decision Date: 31 March 1871
• Citation: 48 Mo. 152
• Parties: ELIZA P. BUCKLEY, Respondent, v. JOHN KNAPP et al., Appellants.
• Court: Missouri Supreme Court

48 Mo. 152

ELIZA P. BUCKLEY, Respondent,

v.JOHN KNAPP et al., Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

T. G. C. Davis, for appellants.

I. The deposition of John N. Edwards, proving that the defendants had nothing to do with the composition or publication of the alleged libel, and in fact knew nothing about it until after it appeared in the Republican, was proper evidence to rebut malice in fact, and also “to enable the jury to estimate the probable quantum of injury sustained.” (2 Stark. Sland. 78; Thornton v. Stephen, 2 Moody & R. 45-6; Richards v. Richards, id. 558.) And this evidence was proper in mitigation of damages under the justification. (Chalmers v. Shackell, 6 Carr. & P. 475; Morris v. Duane, 1 Binn. 90; Kennedy v. Gregory, id. 85; Coleman v. Southwick, 9 Johns. 46; Hotchkiss v. Lathrop, 1 Johns. 288; Root v. King, 7 Cow. 613, 632-3; Gillman v. Lowell, 8 Wend. 575; Parsons v. Harper, 16 Gratt. 76; Shank v. Case, 1 Ind. 170; Murphy v. Stout, id. 372; Swails v. Butcher, 2 Ind. 84; Shoulty v. Miller, 1 Ind. 544; Sloan v. Petrie, 15 Ill. 425; 16 Ill. 405; McAlister v. Tibley, 25 Me. 474; Sanders v. Johnson, 6 Blackf. 55.) It is not necessary to plead mitigating circumstances in mitigation of damages, under the code of Indiana (just like our own code), because evidence given under a plea of justification, but not fully proving the plea, will be considered in mitigation of the damages. (O'Connor v. O'Connor, 27 Ind. 70; Sweeny v. Nave et al., 22 Ind. 180; 1 B. Monr. 172; 18 B. Monr. 786; Tinsley v. Freeman, 50 Ill. 497.) A plea of justification, not fully sustained, does not aggravate the damage in an action for libel or slander in this State; and evidence given under such a plea mav reduce the damages to a nominal sum. The reason for pleading facts and circumstances in mitigation of damages in the courts of New York never prevailed in Indiana nor in this State; hence the decisions in Indiana, notwithstanding the provision of the New York code, was literally copied into that of Indiana, and it has been copied into our own code. (See O'Connor v. O'Connor, supra; Sweeney v. Nave et al., supra;Nelson v. Musgrave, 10 Mo. 649; also see Detroit Daily Post Co. et al. v. McArthur, 16 Mich. 451.)

II. Evidence of the wealth or pecuniary circumstances of a defendant is not admissible, in actions for libel and slander, to enhance the damages, or for any other purpose. (Townsh. Sland. and Libel, 479, § 391; Meyers v. Malcolm, 6 Hill, 292; Palmer v. Haskins, 28 Barb. 90; Morris v. Barker, 4 Harrington, Del., 520; Ware v. Curtledge, 24 Ala. 622; Taber v. Hutson, 2 Ind. 322; Moody v. Osgood, 50 Barb. 632; Stout v. Proll, 1 Cox, N. J., 78-80; Grandy v. Humphries, 35 Ala., N. S., 626; Pool v. Deevers, 30 Ala. 675.)

III. The court erred in charging the jury that if they found for the plaintiff they might give the plaintiff compensatory and exemplary damages. A libeller may be indicted and punished. (Weber v. State, 10 Mo. 4.) Exemplary or punitory damages are not recoverable in such cases. (Austin v. Wilson, 4 Cush. 273; Taber v. Hutson, 5 Ind. 326; 11 Ind. 159.) The general rule is to give such damages as will compensate the plaintiff, without any reference whatever to the operation of the verdict upon the minds of others as an example, or to deter them from the commission of similar wrong. Crimes are punished in courts of criminal jurisdiction, for the reformation of offenders, and also to deter others from offending in like cases; while damages in civil actions are given to repair losses and compensate the injured to the extent of the injury sustained in every case of actual wrong. Intentional and malicious wrongs have been made exceptions, by the courts, to the general rule of compensation in not a few cases. The latest decision of our own Supreme Court on the subject inclines strongly to the principle of compensation. (Levering et al. v. Union Trans. & Ins. Co., 42 Mo. 88; Goetz v. Ambs, 22 Mo. 170; 27 Mo. 33; 2 Greenl. Ev. 257, § 253; Malone v. Murphy, 2 Kan. 262; Hodgson v. Millward et al., 3 Grant's Lead. Cas. 411; Flint v. Clark, 13 Conn. 366, 370; Bristol Manuf. Co. v. Gridley, 28 Conn. 288; Markham v. Russell, 12 Allen, 573; Harrison v. Swift, 13 Allen, 144.)

IV. The damages found for the plaintiff are excessive, and the court ought to have granted the defendants' motion for a new trial on that ground. (Goetz v. Ambs, supra;Kinsey v. Wallace, 36 Cal. 480; Swartzel v. Dey, 3 Kan. 244.)

Lackland, Martin & Lackland, for appellants.

I. The court erred in ruling out the testimony of the witness Edwards. If he wrote the article containing the alleged libel, and it was published in the paper of appellants without their knowledge or consent, these facts were competent evidence in mitigation of damages.

II. The court erred in admitting testimony tending to show the pecuniary condition of the defendants. Such testimony is incompetent. (Myers v. Malcolm, 6 Hill, N. Y., 292; Ware v. Curtlege, 24 Ala. 622; Palmer v. Haskins, 28 Barb. 90; Morris v. Baker, 4 Harring. 520; James v. Biddington, 6 Carr. & P. 590; Coryell v. Colbaugh, 1 Coxe, N. J., 77; Townsh. Sland. 479, § 391.)

III. The following cases, cited as authorities against this position, were reviewed at length: Fry v. Bennett, 4 Duer, 247; Bennett v. Hyde, 6 Conn. 24; Case v. Marks, 20 Conn. 248; Adcock v. Mead, 8 Ired. 360; Karney v. Paisley, 13 Iowa, 92; Humphries v. Parker, 52 Me. 502; Halsey v. Brooks, 20 Ill. 115; Lewis v. Chapman, 19 Barb. 252; State v. Barrett, 7 Pick. 86; McNamara v. King, 2 Gilman, Ill., 432; McAlmont v. McClellan, 14 S. & R. 359; Grabe v. Margrave, 4 Ill. 372; Reed v. Davis, 4 Pick. 216.

IV. If the appellants composed and publised a libel against the respondent, they are liable to be tried and convicted for it, and may be punished both by fine and imprisonment. (2 Wagn. Stat. 886, § 2; Austin v. Wilson, 4 Cush. 273; Tabor v. Hutson, 5 Ind. 159; Weber v. State, 10 Mo. 4.) This is a reason why punitory damages should not be given in this suit; otherwise the defendants might be punished twice for the same offense.

V. The court erred in the first instruction, because it assumes by implication that the appellants charged respondent with fornication. This should have been left to the jury. It also assumes that the action of appellants was unlawful. This shut out inquiry as to the facts which made it so.

VI. The second instruction is erroneous because it required the defendants to establish by proof divers fornications with divers persons. One act of fornication, or divers acts of fornication with one person, were declared by the court as not sufficient defense under the answer.

Dailey & Adams, with H. A. Clover, for respondent.

I. This being an action of tort, and the damages being unascertained, the court below properly permitted the plaintiff to open and close the case. (Carter v. Jones, 5 C. & P. 641; Mercer v. Whall, 5 Q. B. 447; Cotton v. James, M. & M. 273; 1 Greenl. Ev. 102, and note 4.)

II. The petition in the divorce suit of Robert Buckley v. Jane Buckley, and the deposition of Edwards, offered by defendants to show, in mitigation of damages, that the defendants were not the originators of the libel, were properly excluded: 1. Because this circumstance was not pleaded in mitigation. The defendant in libel and slander must set up the mitigating facts relied on (Gen. Stat. 1865, ch. 165, § 44), and especially must this be done when the truth is pleaded. (Weaver v. Hendricks, 30 Mo 507.) 2. Because such a circumstance is not admissible in evidence in mitigation of damages, under the rules of evidence. (Anthony v. Stevens, 1 Mo. 254; Moberly v. Preston, 8 Mo. 462.) The rule of evidence is not changed by the statute cited above, but the rule of pleading only.

III. Evidence of the wealth of the defendant was properly admitted. 1. The plea of truth in the answer, unsupported by testimony, was evidence of actual malice. (1 Hill. Torts, 425, § 190; 24 Ala. 174; 4 Comst. 162; 5 Yerg. 211; 13 Penn. 610; 4 Shep. 13; 1 Am. Lead. Cas., Harr. & Wall., 179; 2 Pick. 113, 121; 3 Watts & Serg. 555; 5 Ohio, 225; 5 How., Miss., 158.) Hence punitory damages were authorized (Franz v. Hilterbrand, 45 Mo. 121, and cases cited), and evidence of defendants' wealth was necessary to enable the jury intelligently to determine the amount of damages requisite to inflict the proper punishment. (26 Md. 380; 32 Ga. 374; 41 Ill. 141; 52 Me. 502; 6 Conn. 24; 2 Whart. 314; 3 Mass. 546.) 2. Evidence of wealth tended to establish the social rank and influence of defendants, and their consequent power to injure plaintiffs by their publication. (3 Mass., supra; 2 Whart., supra; 14 Serg. & R. 359, 362; 8 Wend. 573; 52 Me., supra.)

IV. The record shows no specific ground of objection to any other testimony complained of, and this court will not consider the objections. (23 Mo. 438; 25 Mo. 41; 32 Mo. 255; 39 Mo. 229; 40 Mo. 369.)

V. The instruction authorizing exemplary damages was properly given for plaintiff. (See authorities, supra.) This instruction, when taken in connection with the fifth given for defendants, is otherwise unobjectionable.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought her action in the Circuit Court, claiming $25,000 damages, on account of a libel imputing a want of chastity to her, published in the St. Louis Republican, of which paper the defendants were the proprietors and owners.

The defendants answered, admitted the publication, justifying it as true, and alleging that the plaintiff had, before the publication of the article, committed and been guilty of fornication; that she was of bad fame, reputation and credit for chastity, and that she was so wanting in chastity, modesty and womanly innocence that she could not be, and was not, by means of the publication, injured in her good name, fame and credit. To this answer a replication was filed, and the jury, after hearing the...