Flowers v. Smith

• Decision Date: 14 July 1908
• Parties: FLOWERS v. SMITH.
• Court: Missouri Supreme Court

112 S.W. 499

214 Mo. 98

FLOWERS v. SMITH.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. PLEADING—MOTION TO STRIKE AMENDED PETITION—WAIVER.

A defendant answering over to the amended petition, after the overruling of a motion to strike out the same, on the ground that it changes the cause of action, cannot avail himself of the motion.

2. SAME—MOTION TO REQUIRE PLAINTIFF TO ELECT.

The overruling of a motion to require plaintiff to elect on which one of several causes of action pleaded in a single count he will proceed to trial, filed before answering to the merits, is, on exception, reviewable on appeal, though after the ruling defendant answered to the merits.

3. SAME—CAUSE OF ACTION—ELECTION.

Where the petition improperly joins in one count different causes of action, defendant may require plaintiff to elect the charge on which he will seek a recovery and dismiss the others.

4. LIBEL AND SLANDER—PETITION—MISJOINDER OF CAUSES OF ACTION.

A petition, in libel for newspaper publications, which sets forth in one count publications made at different times, as to plaintiff's action in appointing a clerk for a city, to his denial of a petition for a correct census of the city, to his mismanagement of the electric light and water plants of the city, and to his closing of the saloons on Sunday, improperly joins different causes of action in one count, though libels may be joined in one petition in different counts.

5. JUDGMENT—MISJOINDER OF CAUSES OF ACTION —OBJECTIONS—MOTION IN ARREST.

The improper joinder of causes of action in one count in the petition is open to defendant in motion to arrest after a trial on all the causes of action and a simple verdict in favor of plaintiff.

6. TRIAL—VERDICT—CONFORMITY TO PLEADING —DEFECTIVE COUNTS.

Where the petition contains several causes of action stated in separate counts, one of which is bad for insufficiency in statement, a general verdict for plaintiff on all the counts will not be sustained.

7. SAME.

Where several causes of action are united in one count, and the case is tried on all, and a simple verdict and assessment of damages in favor of plaintiff is rendered, and one or more of the causes of action is bad so as not to support the verdict, the verdict is bad as to all.

8. LIBEL AND SLANDER—REFERENCE TO PLAINTIFF IN DEFAMATORY MATTER—QUESTION OF FACT.

Where the defamatory matter complained of in libel points to no person in particular, it is a question of fact whether it applies to plaintiff.

9. SAME—ANSWER—ADMISSIONS.

Where, in libel for newspaper articles, some of which did not point to any person, and some of which precluded the idea that plaintiff was the person intended, the answer was a general denial and a special defense averring that defendant in publishing the articles reflecting on the official conduct of plaintiff acted in good faith and after inquiry as to the truth of the matters stated and with the belief that they were true, and alleging that the articles were substantially true, defendant did not admit that the articles complained of referred to plaintiff, and an instruction that defendant admitted the publication of the articles of and concerning plaintiff and justified the publication, by alleging that the charges made against plaintiff were true, was erroneous.

10. SAME—PLEADING—STATUTES.

Under the statute declaring that in an action for slander it shall not be necessary to state in the petition any extrinsic facts for the purpose of showing the application of the defamatory words complained of, but it shall be sufficient to state generally that the same was published concerning plaintiff, the extrinsic facts, when not embraced in the imputed words, to show their meaning and the character of the person to whom applied, must be stated as at common law.

11. SAME—ARTICLES LIBELOUS PER SE.

Articles, published in a newspaper called the "Democrat," referring to another paper called the "Empire," reciting that the Empire seemed to take it for granted that it could say what it pleased, that it made charges against the Democrat without foundation, that in regard to the appointment of a city clerk the Democrat had stated that good lawyers differed in their view as to the act governing cities, that the Empire stated that the electric lights should be dispensed with and a bridge built, that some preferred darkness to light, and inquiring why the mayor (plaintiff) did not think the readers of the Democrat worthy of consideration when he gave his notice of a city election, and averring that some of the people of the country were indignant over the scheme of taking the census of the city, etc., are not libelous per se as to any person, and, in the absence of extrinsic facts showing that the articles imputed any crime or conduct to plaintiff rendering them libelous, were not actionable.

12. SAME—EVIDENCE—INSTRUCTIONS.

Where, in libel for newspaper articles, some of which did not refer to plaintiff, there were no averments to show that he was referred to, an instruction that, unless the jury believed that all the charges in the publication were true, they should find for plaintiff, unless they believed that none of the charges were libelous, was erroneous as misleading.

13. SAME.

Where, in libel for newspaper articles, some of which did not refer to plaintiff, and some of which were not libelous per se, there was no averment of extrinsic facts that the articles referred to plaintiff or any innuendo from which it could be inferred that they charged plaintiff with such conduct as to render it libelous per se, an instruction that "malice" means the intentional doing of a wrongful act without excuse, and that if the articles published were libelous in whole or in part, and were published concerning plaintiff, and were not true, the law presumed that they were published maliciously, and it was not necessary to prove any malice to warrant a verdict for plaintiff, was erroneous, because it did not confine the presumption of malice to the articles which were libelous per se.

14. SAME—ARTICLES NOT LIBELOUS PER SE— PROOF OF DAMAGES.

Where the libel complained of is not libelous per se, it is necessary for plaintiff to allege and prove damages before he can recover.

15. SAME—PUNITIVE DAMAGES—INSTRUCTIONS.

Where, in libel, the plaintiff demanded compensatory and punitive damages, and the evidence showed the good faith of defendant in making the publications complained of, an instruction that the jury should disregard evidence of good faith, or defendant's belief of the truth of the charges based on information or reports of others, was erroneous for failing to authorize the jury to consider the evidence of good faith in mitigation of exemplary damages.

16. SAME—EVIDENCE—ADMISSIBILITY.

In libel, the circumstances concerning the publication complained of and the information on which defendant acted in forming the views expressed therein, showing his good faith and want of malice, are competent on the issue of exemplary damages.

17. TRIAL—EVIDENCE—REBUTTAL.

In libel, evidence that a witness went to defendant and requested him to cease publishing things reflecting on plaintiff, and that defendant said he thought that plaintiff had done defendant wrong, was not competent in rebuttal.

18. LIBEL AND SLANDER—EVIDENCE.

In libel for newspaper articles referring to another newspaper, evidence of defendant explaining the articles as in reply to articles in the newspaper referred to was competent.

19. SAME.

A defendant, in libel for newspaper articles which made no reference to plaintiff, may show that the articles were not intended to refer to plaintiff.

20. SAME.

In libel, referring to the action of plaintiff, as mayor of a city, regarding his denial of a petition for a correct census of the city, under Rev. St. 1899, § 3028 (Ann. St. 1906, p. 1735), providing for a census to determine whether or not the city shall be governed by the provision thereof, etc., the exclusion of evidence discrediting the census taken which was taken without taking names and making returns of the lists thereof, and without entering the result on the records of the city, as required by the statute was erroneous, for, though defendant could not libel plaintiff in regard thereto, he had the right to discuss the question whether the census taken was properly taken, and it was competent in mitigation of damages to show that the enumerators erred in taking the census.

21. EVIDENCE—HEARSAY.

In libel, referring to the action of plaintiff, as mayor of a city, in denying a petition for a correct census thereof, under Rev. St. 1899, § 3028 (Ann. St. 1906, p. 1735), the testimony of a witness as to statements made to her was incompetent to discredit the census taken, unless she could testify of her own knowledge that the enumerators actually counted persons who were not residents of the city.

22. CENSUS—MUNICIPAL CENSUS—STATUTES— COMPLIANCE.

Where the affidavits of the enumerators taking the census of a city as authorized by Rev. St. 1899, § 3028 (Ann. St. 1906, p. 1735), providing for a census to determine whether a city shall be governed thereby, were the only matters on file in the office of the city clerk, and no action was taken by the council accepting and approving the report of the enumerators and spreading the same on the record, as required by the statute, the requirements of the statute were not complied with, and the affidavits were not prima facie evidence of the correctness of the census.

23. JUDGMENT—MOTION IN ARREST—DEFECTS IN PLEADING.

Where plaintiff in libel joined 18 independent libels in one count, and 5 of which were wholly insufficient to support a verdict, a general verdict for plaintiff could not be sustained as against a motion in arrest.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by D. S. Flowers against J. C. Smith. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Joseph...