Dameron v. Hamilton
| Decision Date | 02 March 1915 |
| Citation | 174 S.W. 425,264 Mo. 103 |
| Parties | W. T. DAMERON v. JOHN N. HAMILTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court. -- Hon. A. H. Waller, Judge.
Affirmed.
Whitecotton & Wight for appellant.
(1) Appellant insists that the court committed no error in this case in giving or refusing instructions on behalf of the defendant, for the reason that the instructions all taken together clearly submit the only issues in the case, namely Was the article libelous? Was that article true? (2) The respondent complains that instruction B especially is misleading and confusing. The only thing as to said instruction that the respondent complains of is that the words "or less than $ 120,000" make the instruction confusing. The instruction as a whole clearly submits the proposition that if the amount of taxes collected, with the exceptions named, is in excess of $ 80,000 then the collector was entitled to retain only two and one-half per cent as his commission and did not and could not confuse any one as the argument before the jury at the time by counsel on both sides showed. The instruction was harmless, in view of the fact that the respondent admitted that he had retained one-half per cent more than he should have, but says it was by reason of a mistake of the law, and by way of further excuse says he did not take the commission allowed him on back taxes. In the light of these admissions, what harm possibly could these superfluous words have done? The instruction, as a whole clearly submitted the issue intended. (3) The appellant by instruction D clearly submitted the questions of the truthfulness of the article and whether, if not true, was it libelous. By this instruction, the court substantially said that the appellant had the right to reply or even retort to respondent's article provided the reply or retort was the truth and provided further that it was not libelous. There was no claim of privilege in this instruction. It properly declares the law in this case and is not prejudicial to respondent's right, especially as the jury are the sole judges of the law of libel and the facts that constitute libel. It was their province to say whether the alleged libel was, in view of all the facts and circumstances, including the articles published, libelous, or, if libelous, whether it was true. (4) Furthermore, the verdict of the jury was undoubtedly for the right party and could not and would not under any instructions, have been otherwise. An article in a newspaper called out in answer to a libelous article published by the respondent, which does not go beyond what would be reasonably expected from a man who was justly exasperated, will not support an action for libel. Meyers v. Kaichen, 75 Mich. 273; Ritchie v. Staius, 73 Mich. 563. The worst that can be said against the appellant is that he permitted himself to be dragged into a newspaper war. The evidence clearly shows respondent to be unfriendly and malicious towards the appellant and unceasing in his efforts to injure appellant in his business and to provoke appellant into a newspaper controversy by false, unjust and unkind accusations and untrue insinuations and reflections upon the physical misfortunes of the appellant. Respondent also improperly and maliciously questioned the motives and private life of the appellant. At the very outset of the controversy the respondent declared himself ready for "a frolic or a fight." He at first writes under an anonymous name in a city where he does not reside and uses such terms towards appellant as "lame duck," harshly criticises the policy of appellant's paper, and impugns severely the purposes and impulses of appellant. His vituperation grows with each succeeding article; he compares appellant to a hound; and insinuates that appellant is dishonorable, dishonest and unclean, and expressly charges appellant's life has been one of hypocrisy and treachery to his home city. Finally, unable longer to conceal his identity, he admits the authorship and publication of the articles signed "Old Timer." Then when appellant for the first time cognizant of the identity of "Old Timer" replied to respondent's articles, respondent claimed, as he had no doubt intended to claim from the beginning, that he had been libeled.
E. J Howard and James P. Boyd for respondent.
(1) Respondent contends that the court committed no error in granting him a new trial for the reason that the instructions given at appellant's request do not define the law of libel in this State, and are erroneous, and were misleading to the jury, conflicting with each other, and especially that instruction B was conflicting and confusing within itself. Instruction D is not the law of libel, nor is it the law in reference to privileged articles. The law of this State on the question of privileged articles, as a justification for the publication of an article, is very clearly stated in the case of Fish v. Pub. Co., 102 Mo.App. 20. In this instruction D, the court plainly told the jury that if the article complained of was a reply to an attack on him by plaintiff, the defendant had a right to reply and even retort upon the plaintiff in self-defense. It did not limit, as it should have done, the extent to which one might go in reply to an article, which may have been a previous libel. The appellant seems to have taken the view that, because the Constitution of our State makes the jury the sole judges of the law of libel as of the facts, they are not bound by the instruction of the court. In the case of Arnold v. Jewett, 125 Mo. 252, this court very closely sets forth just how far the Constitution makes the jury the sole judges of the law of libel and of the facts. (2) A few years ago one of the judges of this court, in referring to an instruction offered by a trial court in this State, denominated it "a legal curio." If any instruction can thus be denominated, instruction B is that one. Not only is it erroneous, but it is absolutely conflicting and contradictory within itself in its attempted statement of the law in reference to the fees allowable to county collectors as their commissions. If such an instruction can be said not to be prejudicial, and if such an instruction can be said to be a clear, terse statement of the law, then it would not be possible to write an instruction that would confuse or mislead a jury, and this instruction, coming within instructions by which the jury were bound, is sufficiently prejudicial to have justified the trial court in granting a new trial.
Plaintiff sued defendant in the circuit court of Randolph county, Missouri, to recover damages on account of the alleged publication of a libel in defendant's newspaper. After a trial upon the merits, the jury returned a verdict for defendant. A new trial was granted plaintiff, and defendant appealed from an order granting same.
The petition charges that on the 7th of April, 1911, defendant was the owner and publisher of the Huntsville Herald, at Huntsville, in the county aforesaid. After setting out the usual preliminaries, the petition charges:
It is then averred in the petition, that said publication was false, and known to be false by defendant when published; that it was published for the purpose of injuring plaintiff in his good name and reputation among his neighbors, acquaintances and others throughout said county and State; that defendant intended by said false and malicious publication to charge, and did charge, that said Cave in his report to said court accused and charged plaintiff of being guilty of the crimes of exacting and retaining illegal fees from said county, and of being guilty of fraud in office, while plaintiff was tax collector of said county, and that plaintiff was subject to the pains and penalties provided by the laws of Missouri. It is further averred that said publication did, and does, provoke him to wrath and exposed him to public hatred, contempt and ridicule; that it deprived him of the benefits of public confidence and social intercourse; that the same was wilfully and maliciously published and circulated by defendant as aforesaid, among a great number of persons in Randolph and adjoining counties in Missouri, to the damage of plaintiff in the sum of $ 20,000.
Defendant's answer contains a general denial and various other matters hereafter referred to. It avers that defendant was born and reared in Randolph county, Missouri; that he was admitted to the bar in 1875, and since that date has been a practicing lawyer in said county; that during said period he had held various offices of trust, among which was that of recorder of deeds of said county, from 1891 to 1899.
It is alleged that on February 1, 1911, the plaintiff sold and delivered to defe...
To continue reading
Request your trial