LaNius v. Druggist Publ'g Co.

• Decision Date: 08 December 1885
• Citation: 20 Mo.App. 12
• Parties: J. W. LANIUS, Respondent, v. DRUGGIST PUBLISHING COMPANY, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 12

J. W. LANIUS, Respondent,

v.DRUGGIST PUBLISHING COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

H. A. CLOVER, for the appellant.

DYER, LEE & ELLIS, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action of libel in which the plaintiff recovered a verdict and judgment for $2,000.

The errors complained of are: that the court admitted illegal testimony offered by the plaintiff; that it misinstructed the jury on the question of damages; and that the verdict is excessive.

The defendant is a corporation, and the publisher of the National Druggist, a newspaper published weekly in the city of St. Louis. The paper had at the date of the injury complained of a circulation of 1,850 copies, of which number three hundred were in this state outside of the city of St. Louis. The plaintiff is a resident of Marion county, Missouri, and has been for several years past engaged in soliciting subscriptions for medical journals published in this state. In March, 1883, he became a solicitor for the defendant's newspaper, and was published as such in the columns of the National Druggist. This appointment was never revoked, and it was shown by the account books of the defendant, that he obtained a number of subscriptions, the last prior to the one hereinafter mentioned being obtained April 22, 1884. November 24, 1884, he obtained the subscription of one Crim for which he remitted to the defendant only in January following, but, as the plaintiff's testimony tended to show, prior to the publication of the libel complained of, which was published in the defendant's paper January 16, 1885, and is in the following words:

“A fellow, styling himself John W. Lanius, is traveling through the country soliciting subscriptions and receiving money on our account. We have no such agent, and it is unnecessary to say that none of the money collected by him finds its way to this office. Subscribers to the National Druggist should remit direct to us, or pay only to Mr. J. L. Baker, who is our authorized agent in the west, or to reputable news agencies.”

The plaintiff, upon learning of this libel, wrote to the defendant January 26, 1885, calling its attention to the injury done him, and stating that he trusted to their sense of honor to repair it as best they could. In answer to this the defendant's editor wrote to the plaintiff five days thereafter, offering to make a statement in the paper that the plaintiff had made a satisfactory explanation, but not offering in any way to retract the libel, which its own prior publication of the plaintiff's agency, and its own account books demonstrated to be false. To this letter the plaintiff replied February 6, giving details of his employment, and asking for an amende honorable. Under date of February 17, the defendant's editor replied to this last letter, that the defendant would make whatever reparation it could, but would first like to hear from the plaintiff more of the particulars of the arrangement made with him, particularly as to date. In answer to this last letter the plaintiff informed the defendant that he had placed the matter in the hands of his attorney.

Between the date of the libel, and the institution of the suit, at least five publications of the National Druggist were made, a number of them after the defendant's attention was called to the libel by the plaintiff, but no retraction was made, either prior or subsequent to the institution of the suit.

The evidence which the defendent claims was illegally admitted against its objection is the correspondence above detailed. We are not referred to any authorities on that subject by either party, but regard it as an elementary proposition that such evidence is always admissible on the question of malice, where the...