Jones v. Brownlee

• Decision Date: 26 March 1901
• Citation: 161 Mo. 258,61 S.W. 795
• Parties: JONES et al. v. BROWNLEE.
• Court: Missouri Supreme Court

61 S.W. 795

161 Mo. 258

JONES et al. v. BROWNLEE.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

LIBEL — RELEVANT ALLEGATION IN PLEADING — PRIVILEGE.

1. An allegation, though false, by the defendant in a cross complaint in a divorce proceeding, that her husband had been cohabiting with the plaintiff, was an absolutely privileged statement, for which libel will not lie, since it was made in the due course of legal proceedings in a court of competent jurisdiction, and relevant to the issues therein.

2. Where the defendant in libel did not plead justification or the truth of the libelous words pleaded in a cross complaint in divorce, but averred that she made the libelous allegation on reasonable grounds, a failure to prove the averments of the answer will not deprive her of the absolute privileged character of the allegation.

Appeal from circuit court, Knox county.

Action by Ella Jones and husband against Annie E. Brownlee. From a judgment in favor of the defendant, the plaintiffs appeal. Affirmed.

This is an action for libel alleged to have been made by respondent, Mrs. Brownlee, in an answer and cross bill filed by her in a suit brought by her husband, E. C. Brownlee, against her for divorce, in the circuit court of Knox county, in this state. The alleged libel consists in the following averment in the answer and cross bill of defendant in said divorce proceeding: "And for further cause of divorce defendant says and charges it to be a fact that since the marriage aforesaid the plaintiff (meaning the said E. C. Brownlee) has been guilty of consorting and cohabiting with other women, including Mrs. Ella Jones." The petition avers that said charge was wantonly, willfully, and maliciously made by defendant without any evidence to sustain it, and when defendant well knew of her own knowledge that she had no evidence to sustain it; that said charge was false and untrue, and was not made in good faith with any intention of attempting to sustain it by proof; that defendant, knowing she could not sustain said answer by proofs, subsequently withdrew the same, and let judgment go for her husband without contesting the same; that said libelous words were not privileged, and plaintiff was injured and damaged in her reputation as a wife and mother in the sum of $2,500 actual damages and $2,500 for exemplary and vindictive damages. Defendant, in her answer, admits that she was formerly the wife of E. C. Brownlee; that he sued her for divorce, and in her answer she used the words charged and quoted in plaintiff's petition. She denied all the other allegations. Defendant further answered that she made the said allegation of consorting and cohabitation in the divorce suit to which she was a party in a court of competent jurisdiction; that it stated a statutory cause of divorce, and was pertinent and relevant to the issues in said divorce suit, and was, therefore, a privileged communication, and as such is a full defense to this action. She further answered that said statement was made in her answer in a suit against her by her husband for divorce in a court of competent jurisdiction; that she was compelled to and did employ counsel to take charge of and conduct her defense; that she fully and frankly stated to her said counsel all the facts within her knowledge, and all the facts which, with reasonable diligence, she could learn, as to the guilt or innocence of plaintiff of the said accusation; that all her communications in that regard were made in good faith to her said counsel, with a view to obtain their advice, and her said attorneys advised her that said accusation should be made in her said answer in said divorce suit; that at the time she had reason to believe and did believe she could sustain said allegation by evidence on the trial of said suit, and that said allegation was true; that said allegation was pertinent to the issues in said suit, and was made in full expectation at the time that she would go to trial upon it; that, pending said suit, she filed a motion for alimony, which motion was overruled, but while said motion was pending her husband filed a bill in equity to set aside a conveyance he had made to her to property of the value of $2,000, claiming that in filing her said motion she had violated the agreement upon which he had deeded the same to her, and, fearing she might lose said equity suit and said land, and being perplexed, and to obtain the dismissal of said suit, she agreed to and did withdraw her answer, and made no further appearance in said suit. The reply charged that said answer was not filed in good faith, and constituted no defense, and was not a privileged communication. The case was tried to a jury under the theory that the alleged libel was a qualified privileged communication, and defendant liable if express malice was shown in making said accusation against plaintiff. On behalf of plaintiff the evidence tended strongly to show that the charge was false, and that she was innocent; that Dr. Brownlee, the husband of defendant, was a dentist at Edina, Mo., that plaintiff was married to her co-plaintiff in Kansas City, where her parents lived at the time; that several years later her father purchased a farm near Edina, and plaintiff and her child, a little girl, were in the habit of spending the summer months on the farm with her parents; that she employed Dr. Brownlee to treat her teeth, and became acquainted with his wife, the defendant, and they were good friends; that plaintiff and her husband afterwards moved to St Louis, where her husband was engaged as salesman in a large mercantile house; that plaintiff continued to visit her parents in the summer, and her husband would come up and spend his vacation. The evidence of plaintiff, Dr. Brownlee, and plaintiff's father and mother fully substantiated her innocence of any improper conduct with Dr. Brownlee. Defendant did not justify, but introduced evidence of information she received from other persons upon which she based her allegations in the answer. She testified that she had no malice towards plaintiff, and she and her attorneys testified that she disclosed all the information she had when she filed her answer. This evidence was largely hearsay, and very inconclusive. Many exceptions were saved to the admission and rejection of evidence and to the giving and refusal of instructions.

C. D. Stewart and O. D. Jones, for appellants. L. F. Cottey, G. R. Balthrope, and F. H. McCullough, for respondent.

GANTT, J. (after stating the facts).

This cause was tried in the circuit court on the theory that the alleged libelous allegation in defendant's answer and cross bill to her husband's suit against her for divorce was a qualified or conditionally privileged communication, and not absolutely privileged. The finding was for defendant, and counsel for defendant now urge that, if the communication was in fact absolutely privileged, then the judgment must be affirmed, even if error occurred in other respects. Some of the questions presented by this appeal have not been decided by this court. The general proposition was involved in Hyde v. McCabe, 100 Mo. 412, 13 S. W. 875, but the majority of the court held in that case that the libelous matter contained in an affidavit in opposition to another affidavit made as a basis for a rule requiring security for costs was not sufficiently relevant or pertinent to afford the affiant a privilege. As said in that case, there are occasions on which written or spoken words otherwise libelous and defamatory are not actionable as a libel. The rule is founded upon reasons of public policy. At common law it was broadly ruled that no...