Hager v. Major

• Decision Date: 02 April 1945
• Docket Number: 39251
• Citation: 186 S.W.2d 564,353 Mo. 1166
• Parties: Mabel (Mrs. Fred W.) Hager, Appellant, v. Herman S. Major, Home Insurance Company, National Fire Insurance Company, Hanover Fire Insurance Company, and Royal Insurance Company
• Court: Missouri Supreme Court

186 S.W.2d 564

353 Mo. 1166

Mabel (Mrs. Fred W.) Hager, Appellant, v. Herman S. Major, Home Insurance Company, National Fire Insurance Company, Hanover Fire Insurance Company, and Royal Insurance Company

No. 39251

Supreme Court of Missouri

April 2, 1945

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed in part, and reversed and remanded in part.

Clif Langsdale, Josephine Myers and Roy W. Rucker for appellant.

(1) Ordinarily allegations in pleadings are privileged and cannot be the subject of an action for libel, but one may not under the cloak of judicial proceeding indulge in an unbridled assault on an adversary witness. McLaughlin v Cowley, 127 Mass. 361. (2) The petition alleges that the defendants were actuated by fraud. Fraud nullifies everything it touches. Groff v. Longsdon, 23 S.W. 1087; Bank v. Kellams, 9 S.W.2d l.c. 970. (3) Where the court is without jurisdiction, as in the case of the defendants, The Hanover Fire Insurance Company of New York and Royal Insurance Company, Limited, the rule of privilege does not apply. Hyde v. McCabe, 100 Mo. 421, 13 S.W 875. (4) The defendant Major was not a party to this lawsuit and was a mere volunteer. He cannot protect himself with the cloak of privilege. Laun v. Union Electric Co. of Mo., 166 S.W.2d 1065. (5) The rule of privilege is never applicable to any false or libelous statement which is not pertinent to the issues. Hyde v. McCabe, 100 Mo. 421, 13 S.W. 975; Laun v. Union Electric Co. of Mo., 166 S.W.2d 1065.

John W. Hudson for respondent Herman C. Major.

(1) The motion and supporting affidavits were a part of the pleadings in a judicial proceeding and the matters and averments thereof were material and relevant to the issues therein and were therefore absolutely privileged. Jones v. Brownlee, 161 Mo. 258, 61 S.W. 795; Usher v. Scranton, 132 F. 405; Neal v. K.C. Public Serv. Co., 229 S.W. 215; 36 C.J., pp. 1252, 1253. (2) The mantle of privilege enshrouds a witness with complete immunity against suits for defamation because of testimony given in response to a question by counsel or judge. Laun v. Union Elec. Co., 166 S.W.2d 1065; Johnson v. Schlarb, 134 A.L.R. 473; 3 Restatement of Torts, sec. 588, p. 233. (3) The affidavit of Dr. Herman S. Major was a republication of the alleged libelous matter appearing in the motion for new trial and as such republication of a public record it was absolutely privileged. Brown v. Globe Ptg. Co., 112 S.W. 462; 36 C.J. 1275.

Warrick, Koontz & Hazard for respondent National Fire Insurance Company of Hartford; Hogsett, Trippe, Depping & Houts for respondents The Home Insurance Company of New York, The Hanover Fire Insurance Company of New York and Royal Insurance Company, Ltd., of Great Britain.

(1) The demurrers of these respondents were properly sustained because the allegations in the motion and statements of the affidavit were absolutely privileged. Jones v. Brownlee, 161 Mo. 258; McCormick v. Ford Mfg. Co., 232 S.W. 1010; Laun v. Union Electric Co. of Missouri, 350 Mo. 572, 166 S.W.2d 1065; Maginn v. Schmick, 127 Mo.App. 411; Townsend, Slander and Libel, sec. 221, p. 332; Sacks v. Stecker, 60 F.2d 73; Brown v. Shimabukuro, 118 F.2d 17; McGinnis v. Phillips, 224 Mo.App. 702; 9 Mo. L.R. 177; Vogel v. Gruaz, 110 U.S. 311; McLaughlin v. Cowley, 127 Mass. 361. (2) The allegation in the petition that the defendants "fraudulently" libeled plaintiff does not aid the petition. Weitzman v. Weitzman, 156 S.W.2d 906; Bushman v. Bushman, 311 Mo. 551, 279 S.W. 122; Nagel v. Lindell Ry., 167 Mo. 89. (3) The petition discloses jurisdiction of the federal court as to all four insurance companies, and that privilege extended to the Hanover Fire Insurance Company of New York and the Royal Insurance Company, Limited, as well as to the Home Insurance Company of New York and the National Fire Insurance Company of Hartford. Home Ins. Co. v. Trotter, 130 F.2d 800; Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; Lohmeyer v. Cordage Co., 214 Mo. 685, 113 S.W. 1108; Clark v. Brotherhood of Railroad Trainmen, 328 Mo. 1084, 43 S.W.2d 404; State v. Baker, 246 Mo. 357; Ussery v. Haynes, 344 Mo. 530, 127 S.W.2d 410; In re Letcher, 269 Mo. 140, 190 S.W. 19; 21 C.J.S. 174. (4) Plaintiff's point IV is not directed against and does not apply to respondent insurance companies. (5) The alleged libelous matter contained in the motion and affidavit was pertinent to issues before the court in the case in question, so as to render the matter absolutely privileged. Brown v. Shimabukuro, 118 F.2d 17; Sacks v. Stecker, 60 F.2d l.c. 75; McGinnis v. Phillips, 224 Mo.App. 702; Clemons v. Danforth, 32 A. 626; Rule 59, Federal Rules of Civil Procedure, 28 U.S. Code, Sec. 723c; Kingrey v. New York Central R. Co., 297 F. 376; Chambers v. Anderson, 58 F.2d 151.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover $ 50,000 actual and $ 100,000 punitive damages for alleged libel. Separate demurrers to the petition were sustained and plaintiff appealed. The following background explanation will be helpful to the reader.

Defendant insurance companies, on September 13, 1941, had pending in the federal district court at Kansas City, a suit against L. H. and Carrie L. Trotter, the purpose of which was to obtain a declaratory judgment that they were not liable for loss under certain fire insurance policies issued to the Trotters. The insurance companies alleged that L. H. Trotter had caused the insured property to be destroyed by fire. The policies issued by the Home and the National were for $ 3500 each and those issued by the Hanover and the Royal were for $ 2500 each. The Trotters filed counterclaims against each of the insurance companies, asking judgment on the respective policies. The Trotters also moved to dismiss as to the Hanover and Royal, whose policies were only $ 2500 each, on the ground that the amount involved was not sufficient to give jurisdiction of the subject matter in the federal court. The federal district court denied the declaratory judgment, sustained the motion to dismiss as to the Hanover and the Royal, and gave judgment on the Trotters' counterclaim against the Home and the National. The four insurance companies joined in a motion to set aside the order of dismissal for lack of jurisdiction as to the Hanover and the Royal, and for a new trial as to the Home and the National. This motion is hereinafter referred to as the motion for a new trial. For a more complete history of the federal court case, see Home Insurance Company et al. v. Trotter et al. (8th Cir.), 130 F.2d 800.

The petition in the present case alleges: That plaintiff was subpoenaed, called, sworn, and testified as a witness for the defendants "in a certain cause which was then pending in the United States District Court for the Western Division of the Western District of Missouri . . . wherein the defendants (the four insurance companies) were the plaintiffs and L. H. Trotter and Carrie L. Trotter were the defendants"; that she was examined by counsel for the Trotters and cross examined by counsel for the insurance companies; that she truthfully testified to all the facts within her knowledge.

That the insurance companies wrongfully and unlawfully procured defendant Major to make a false, untrue, malicious and defamatory affidavit (filed in support of the motion for new trial in the federal court case) concerning plaintiff. This affidavit is set out in full in plaintiff's petition and (caption, signature and jurat omitted) is as follows:

"Comes now Herman S. Major, M.D., of lawful age, being duly sworn upon his oath deposes and says: That he is confidential advisor to the United States District Court in neuro-psychiatry; that he is a member of the United States Public Health Service; that for nine years he was assistant superintendent and clinical director of the State Hospital for the insane at Fulton, Missouri, and served during World War (I) in the medical corps with the rank of captain, where his work was confined exclusively to nervous and mental diseases. That since 1921 he has been medical director of a private sanitarium located at 3100 Euclid Avenue in Kansas City, Missouri, now known as the Major Clinic, which specializes exclusively in the treatment of nervous and mental diseases and liquor and drug addictions; that he has been chief of the nervous and mental service at Kansas City General Hospital since 1921 and is a member of the staff of every hospital in Greater Kansas City, as a neuro-psychiatrist, and is a member of the American Psychiatric Association; that he is recognized and licensed as a specialist in nervous and mental diseases by the American Board of Neurology and Psychiatry.

"That he has read the (transcript) of the testimony of Mrs. Fred W Hager in the above entitled cause (the federal court case) and has read the affidavits of Reverend J. W. McDonald, the executive secretary of the Council of Churches in Kansas City, E. R. Cochran, handwriting expert and examiner of questionable documents, G. Whit Pfeiffer, Joseph Barrett, chief clerk of Kansas City Division Headquarters P. O. Inspectors, secretary of the Council of Social Agencies of Kansas City, and Glen D. Reubart, member of the Police Department of Kansas City, filed in support of the motion for a rehearing and new trial in the above entitled cause, and that he has talked with Rev. J. W. McDonald concerning one Mrs. Fred W. Hager. And as a specialist in nervous and mental diseases for a period of twenty-eight years, he is of the opinion that the said Mrs. Fred W. Hager is a case of psychopathic personality (pathological liar), whose judgment and statements should be considered absolutely unreliable and undependable. From the affidavits it is...