Laun v. Union Elec. Co. of Mo.

• Decision Date: 12 November 1942
• Docket Number: 38117
• Citation: 166 S.W.2d 1065,350 Mo. 572
• Parties: Albert C. Laun, Plaintiff-Appellant, v. The Union Electric Company of Missouri, a Corporation, and the North American Company, a Corporation, Defendants-Respondents
• Court: Missouri Supreme Court

166 S.W.2d 1065

350 Mo. 572

Albert C. Laun, Plaintiff-Appellant, v. The Union Electric Company of Missouri, a Corporation, and the North American Company, a Corporation, Defendants-Respondents

No. 38117

Supreme Court of Missouri

November 12, 1942

Rehearing Denied January 4, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Reversed and remanded.

Clyde C. Cope for appellant.

(1) Generally, all persons who cause or participate in publication of libelous or slanderous matter are responsible for such publication. McDonald v. R. L. Polk & Co., 142 S.W.2d 635; Newell, Slander and Libel (4 Ed.), sec. 193, p. 237; Sec. 4759, R. S. 1939; Allen v. Edward Light Co., 209 Mo.App. 165; Van Orman v. J. C. Penney Co., 60 S.W.2d 409. (2) In Missouri a corporation is responsible for the commission of a slander or a libel. Starnes v. St. Joseph Ry., L., H. & P. Co., 52 S.W.2d 852; Conrad v. Allis-Chalmers Mfg. Co., 73 S.W.2d 438; Fensky v. Maryland Casualty Co., 174 S.W. 416. (3) And the aider and abetter of a libel is responsible as a principal. Sec. 4759, R. S. 1939; Newell, Slander and Libel (4 Ed.), sec. 303. (4) And the aiders and abetters in this instance may be sued as principals without joining The Mississippi River Power Company and the Union Electric Company of Illinois. An injured party may sue singly or jointly each tort-feasor whose negligence or wrongdoing contributes to cause the injury. Mitchell v. Brown, 190 S.W. 354; Allen v. Edward Light Co., supra; Buckley v. Knapp, 48 Mo. 152. (5) The mere fact that a libel complained of was published in a pleading filed in a judicial proceeding does not mean that it is absolutely privileged. Even if the parties to an action in which a libelous pleading is filed are the identical parties who are named in a suit for libel based thereon, yet, the matter contained in such libelous pleading is not absolutely privileged unless it was relevant and pertinent to the issues in that case. McCormick v. Ford Mfg. Co., 232 S.W. 1010. (6) It is not the pleading that is privileged. Barber v. St. Louis Post Dispatch, 3 Mo.App. 377; Hyde v. McCabe, 100 Mo. 412, 13 S.W. 875; Brown v. Globe Printing Co., 112 S.W. l. c. 470. (7) A privileged occasion is one on which a privileged person is entitled to do something which no one not within the privilege is entitled to do on that occasion. Ferdon v. Dickens, 49 So. 889; James v. Haymes, 160 Va. 253, 168 S.E. 333. (8) The only effect of privilege on actionable words is to rebut the legal inference or presumption of malice, and to that extent constitutes a good defense in an action on them. Garrett v. Dickerson, 19 Md. 418, cited in 54 Md. 233; Newell, Slander and Libel (4 Ed.), sec. 341, p. 380. (9) The fact that a publication is privileged does not destroy the actionable quality of the words published. The privilege only shields from what would otherwise be an actionable wrong. 36 C. J., p. 1238, sec. 203. (10) Except in cases which the necessities of government take out of the domain of private wrongs, the law does not concede to any person under any circumstances the privilege of defaming another. . . . The fact that a publication is privilege does not destroy the actionable quality of the words published. The privilege only shields from what would otherwise be an actionable wrong. . . . The principle upon which privileged communications rests is that of public policy, and peculiarly so in the case of absolute privilege. 36 C. J., p. 1238; Hagener v. Pulitzer Pub. Co., 172 Mo.App. 436; Barber v. St. Louis Post Dispatch, supra, l. c. 385. (11) No privilege attaches to voluntary officious observations made in court by persons other than those whose duty calls upon them to make them, e.g., strangers and bystanders. . . . Gatley, Libel and Slander (3 Ed. 1938), pp. 186, 190.

Amandus Brackman for respondent, The North American Company.

(1) The petition fails to state a cause of action in either count, because the allegations complained of as libelous are relevant and pertinent to the cause of action alleged and are privileged and no action for libel can be based thereon. Therefore, the demurrer was properly sustained. Jones v. Brownlee, 161 Mo. 258; McGinn v. Schmick, 127 Mo.App. 411; McCormick v. Ford, 232 S.W. 1010; Hancock v. Blackwell, 139 Mo. 440; 36 C. J. 1253, sec. 230; 33 Am. Jur. 146, sec. 150; Newell, Slander and Libel (4th Ed.), sec. 357; Townsend, Libel and Slander (4th Ed.), sec. 211; Kelly v. Great Northern R. Co., 156 Wis. 181; Koehler v. DuBose, 200 S.W. 238: Hess v. McKee, 150 Iowa 409; Hassett v. Carroll, 85 Conn. 23. (2) Even though the allegations be untrue and were known to be untrue when made, and were made with bad motives, still for obvious grounds of public policy no action will lie therefor. McCormick v. Ford, supra; Link v. Moore, 32 N.Y.S. 461; Rosenberg v. Dworetsky, 124 N.Y.S. 191; Chapman v. Dick, 188 N.Y.S. 861. (3) The pleadings are addressed to the court, where the facts can be fairly tried and to no other readers. Park v. Detroit Free Press, 72 Mich. 560; Cowley v. Pulisfer, 137 Mass. 392; Lundin v. Post Publishing Co., 217 Mass. 213; Barber v. St. Louis Post-Dispatch, 3 Mo.App. 377. (4) Even though respondents were not parties to the suit, the privilege extends to and protects them. It is an absolute privilege and extends to third persons not parties to the action. Jones v. Brownlee, supra; Link v. Moore, 32 N.Y.S. 461; Miller v. Gust, 71 Wash. 139. (5) The privilege extends the protection to everyone occupying a personal or official relationship to the parties in the legal proceeding and therefore includes respondent, which is alleged to be a holding company having management and control over the plaintiff who filed the suit in which the alleged libel occurred. Nissen v. Cramer, 104 N.C. 574.

Jacob M. Lashly, Clark M. Clifford and Lashly, Lashly, Miller & Clifford for defendant-respondent, The Union Electric Company of Missouri.

(1) Respondent's motion to dismiss appeal on the ground that appellant's brief (a) fails to contain a fair and concise statement of the facts of the case; (b) fails to contain a statement of the grounds on which the jurisdiction of this court is invoked, and (c) fails to contain a proper statement of the points relied upon by appellant, all as required by Section 1226, R. S. of Missouri 1939, and Rule number 15 of this court, should be sustained. Seifert v. Seifert, 52 S.W.2d 817; Brown v. Citizens' State Bank, 345 Mo. 480, 134 S.W.2d 116; Coolidge v. Strother, 137 S.W.2d 467. (2) Defamatory matter contained in pleadings filed according to law in a court having jurisdiction, where, as here, it is relevant and pertinent to the issues in the case, is absolutely privileged; and it is immaterial that the allegations are claimed to be false and malicious. Jones v. Brownlee, 161 Mo. 258, 61 S.W. 795; McCormick v. Ford Mfg. Co., 232 S.W. 1010; McGinnis v. Phillips, 224 Mo.App. 702, 27 S.W.2d 467; State v. Ross, 24 Mo. 475; Nissen v. Cramer, 104 N.C. 574, 10 S.E. 676; 22 C. J. S., sec. 105 (a), p. 179.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

The question for decision is whether the facts set forth in Albert C. Laun's petition hypothesize the publication of false and defamatory matter under such circumstances as to constitute libel or, whether the facts he has stated and upon which he relies instance a privileged publication and, therefore, do not state a cause of action.

From July 1, 1919, until March 1, 1940, Albert C. Laun was either an employee or an official of The Union Electric Company of Missouri and The Mississippi River Power Company. He says that during his service a part of his duty was to act as "lobbyist and legislative agent" for the defendants and their affiliates under the supervision of superior executive officials, especially Louis H. Egan and Frank J. Boehm, who in turn were under the control and management of a holding company, the defendant, North American Company. The holding company, its subsidiaries, and the defendant, Union Electric Company of Missouri, are alleged to own all the stock of and control Union Electric Company of Illinois and The Mississippi River Power Company. Laun states that in the performance of his work for his employers and superiors in these various companies he was provided with and handled large sums of money which he was "commanded and compelled . . . to deliver . . . to many different people . . . secretly," but that he rendered "secret and confidential reports of all his acts" and faithfully accounted to the defendants and all concerned for the disposition of the funds supplied. He says the purpose of the defendants and those concerned in his activities in compelling him to act secretly and deviously, as he did, was so that if the facts were ever truly disclosed to the public and The Securities and Exchange Commission then the defendants would be in a position to disclaim knowledge of his acts and compel him to bear all the consequent burdens and responsibility.

He states that the facts were finally disclosed to The Securities and Exchange Commission and then the defendants Union Electric Company of Missouri and The North American Company, acting together communicated certain defamatory matter regarding him to The Mississippi River Power Company and The Union Electric Company of Illinois and caused those companies to publish it and thereby libel him. Specifically he charges "defendants, while acting jointly . . . wilfully, wrongfully, intentionally, unlawfully, wantonly, maliciously, and oppressively caused The Mississippi River Power Company (and The Union Electric Company of Illinois) to repeat the aforesaid false, defamatory, slanderous, libelous and untrue statements concerning plaintiff . ....