Buddecke v. Garrels
| Decision Date | 02 December 1919 |
| Citation | 216 S.W. 811,203 Mo.App. 1 |
| Parties | WILLIAM A. BUDDECKE, Respondent, v. WILLIAM L. GARRELS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.
AFFIRMED.
Judgment affirmed.
T Percy Carr for appellant.
(1) The courts will not countenance fraud on the part of a plaintiff in obtaining jurisdiction over defendant. Christian v Williams, 111 Mo. 429, 443; Marsh v. Bast, 41 Mo. 493; Capital City Bank v. Knox, 47 Mo. 334; Byler v. Jones, 79 Mo. 261. (2) Defendant was entitled to a jury trial of the issue of fact presented by his plea to the jurisdiction. Article 2, section 28 Constitution of Missouri; Article 2, section 14, Constitution of Missouri; 24 Cyc. 128. (3) Every publication of a libel is a distinct and separate act and a distinct and separate cause of action. Each time a defendant publishes a libel he commits a fresh tort. State v. Healy, 50 Mo.App. 243; Cook v. Conners, 215 N.Y. 175, L. R. A. 1916, A. 1074; Bigelow v. Sprague, 140 Mass. 425; Odgers on Libel and Slander (5 Ed.), pp. 157-158; Staub v. Van Benthuysen, 36 La. Ann. 467; Newell, Slander and libel (3 Ed.), 1914, p. 299. The allegation of time in plaintiff's petition is material and must be strictly proved. Schlatter v. Rector's Adm'r, 180 Mo. 286; Hewitt v. Pere Marquette R. R. Co., 171 Mich. 211, 41 L. R. A. (N. S.) 635; 31 Cyc. 706; 22 Enc. Pleading & Prac., p. 608, ibid., p. 552; Gray v. Sidelinger, 72 Me. 114; Cole v. Babcock, 78 Me. 41; Young v. Cook, 144 Mass. 38. (4) The pamphlet, sent out by G. W. Garrels, with the assistance of his son, in defense of his own character against charges made by plaintiff and others, was a privileged cummunication. (a) Every man has a right to defend his character against false aspersion; communications made in fair self-defense are therefore privileged. Odgers on Libel and Slander (5 Ed.), pp. 291-292; Laughton v. Sodor and Man, L. R. 4 P. C. 495, 504; O'Donoghue v. Hussey, Ir. R. 5 C. L. 124; Brewer v. Chase, 121 Mich. 536, 46 L. R. A. 397; Fish v. St. Louis County Printing & Publishing Co., 102 Mo.App. 6, 21-22, loc. cit; O'Connor v. Still, 60 Mich. 175; Holmes v. Clisby, 121 Ga. 241, 104 Am. St. Rep. 103; Sheftall v. Railway Co., 123 Ga 589; Goldberg v. Dobberton, 46 La. Ann. 1303, 16 So. 192. (b) Whenever a party has a legal privilege he is entitled to use such means as are usual and necessary to make such privilege effective, and an agent or person assisting in the publication of the defense is entitled to the benefit of the privilege of his principal. Preston v. Hobbs, 146 N.Y.S. 420; Cassidy v. Brooklyn Daily Eagle, 18 N.Y.S. 930; Edmondson v. Birch & Co., 76 L. J. Rep. N. S. 346, 96 L. T. N. S. 415, 23 Times L. R. 234, 1 Brit. Rul. Cases 444; Davies v. Sneed, L. R. 5, Q. B. 611; 39 L. J. 2 B. 202; 23 L. T. 609. (5) The mere words "lying affidavit" are not sufficient to charge the crime of perjury. Odgers on Libel and Slander (5 Ed.), 142, ibid. 117; Stanhope v. Blith (1585), 4 Rep. 15; Holt v. Scholefield, 6 T. R. 691; Hall v. Weedon, 8 D. & R. 140; Harris v. Woody, 9 Mo. 113; McManus v. Jackson, 28 Mo. 56; Alderson v. Auerswald, 80 Mo.App. 370; Cook v. Pulitzer Pub. Co., 241 Mo. 326. (6) The meaning of the defendant's words cannot be enlarged by an innuendo in the plaintiff's petition. Odgers on Libel and Slander (5 Ed.), 116; Ukman v. Daily Record Co., 189 Mo. 378; Krupp v. Corley, 95 Mo.App. 640; Krone v. Block, 144 Mo.App. 575; Powell v. Crawford, 107 Mo. 595; Church v. Bridgeman, 6 Mo. 190; Boyce v. Aubuchon, 34 Mo.App. 315; Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480.
W. B. & Ford W. Thompson for respondent.
(1) Under the well-known and well-established and elementary principles of the law of libel, one who seeks to justify a statement claimed to be libelous, upon the theory that the matters therein charged are true, must not only state the facts, the proof of which will show the statement to be true, but the justification must be as broad as the libel, where the charge made is that the plaintiff conspired with others named to commit perjury, it will not suffice to plead that some statement that was made by one or the other was false or untrue, without showing what the issue was and the materiality of the alleged false statement, and also some statement tending to show that there was a conspiracy between the plaintiff and the others to falsify material facts. The answer did not even attempt to justify the charges of blackmail, extortion of money by means of threats and conspiracy to maliciously slander. (2) The matters pleaded under defendant's so-called defense of justification, if they constitute any defense, should be set up by way of mitigation, and in support of this contention we respectfully call the Court's attention to the following authorities: Starkie on Libel & Slander (5 Ed.), 413, 415. Odgers on Libel & Slander, section 181 and 417. Newell on Libel & Slander (2 Ed.), p. 657 et seq. (3) An examination of the pleading of justification shows that it in nowise tends to justify the charge of conspiring with others to commit perjury, or the charge of blackmail, or extortion of money by means of threats, or conspiracy to commit malicious slander, and therefore falls far short of a complete defense to plaintiff's petition. For the Missouri law upon the question of justification we direct the court's attention to: Cook v. Globe Printing Co., 227 Mo. 531 and Merriweather v. Knapp, 128 Mo.App. 385. (4) The plea of "qualified privilege" set up in defendant's answer is not only abortive, but the record presented by the transcript shows conclusively that defendant offered no evidence whatever which would have justified the court in presenting the question to the jury, and that, notwithstanding that fact, the record further shows that the court indulged the defendant and gave the jury the instructions prepared by the defendant himself and based upon defendant's theory of qualified privilege. The value of this plea, and, in fact, the absurdity of instructing the jury thereon, is clearly shown in the case of Ritschy v. Garrels, 195 Mo.App. 670, where this very pamphlet was in question.
This case is an action for libel filed in the Circuit Court of the City of St. Louis, by William A. Buddecke, plaintiff, against William L. Garrels, defendant. The case was tried to a jury, resulting in a verdict in favor of plaintiff for $ 500 actual damages, and from judgment rendered thereon defendant appeals.
Plaintiff in his petition alleges that he is a resident of the city of St. Louis. The defendant, who is a resident of St. Louis county was "found" and served in the city of St. Louis. At the return term following the service upon the defendant, the defendant appeared specially and moved to quash the sheriff's return showing service in the city of St. Louis, and as a ground for the quashing of said return the defendant, in said motion to quash, alleged that neither the plaintiff nor the defendant was a resident of the city of St. Louis at the time the suit was brought. Upon the hearing of defendant's motion to quash, the plaintiff was a witness in his own behalf and testified that he was in fact a resident of the city of St. Louis, and thereupon said motion was overruled, defendant excepting thereto and preserving his exceptions by the usual term bill, but not embodying this exception in his motion for a new trial filed after the case had been heard on its merits.
Defendant's motion to quash having been overruled, defendant was granted time to plead and in due course filed an answer setting up several defenses, the first of which was a plea to the jurisdiction of the court based upon the same ground set up originally in defendant's motion to quash, namely, that the Circuit Court of the city of St. Louis had no jurisdiction because neither of the parties to the suit was a resident of said city and specifically alleging, in such plea to the jurisdiction, that the plaintiff was a resident of Washington county. This original answer was subsequently withdrawn and an amended answer filed, in which the same plea to the jurisdiction was again set up as the first defense. Thereupon plaintiff moved to strike out such plea to the jurisdiction from said amended answer on two grounds; first, that the defendant, by filing his answer and amended answer, had entered his appearance, and was thereby precluded from pleading to the jurisdiction; second, that the defendant had prior to the filing of said answer and amended answer set up the same matter in his motion to quash and dismiss the writ of summons, and that the court had after hearing the evidence adduced on said motion to quash, adjudicated the question of the residence of plaintiff and held it to be in the city of St. Louis, Missouri.
The learned trial court sustained plaintiff's motion to strike out defendant's plea to the jurisdiction, the defendant saving his exception in a term bill filed in due course, but defendant failed to assign the action of the court in thus sustaining the plaintiff's motion to strike out the defendant's plea to the jurisdiction as a ground in his motion for new trial filed after the hearing of the case upon its merits.
The defendant next filed his second amended answer omitting therein his plea to the jurisdiction striken out by the ruling of the court as above noted.
Sometime later the defendant filed a motion to withdraw his second amended answer and for leave to file a third amended answer in lieu thereof, and to reinstate therein his plea to the jurisdiction which the court had striken out of his first amended answer, on the ground that the defendant had, since...
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