Lee v. W.E. Fuetterer Battery & Supplies Co.

• Citation: 23 S.W.2d 45,323 Mo. 1204
• Decision Date: 14 October 1929
• Docket Number: 28055
• Parties: Frank Lee, Appellant, v. W. E. Fuetterer Battery & Supplies Company, William E. Fuetterer, Estelle Greene and Henry H. Spencer
• Court: United States State Supreme Court of Missouri

23 S.W.2d 45

323 Mo. 1204

Frank Lee, Appellant, v. W. E. Fuetterer Battery & Supplies Company, William E. Fuetterer, Estelle Greene and Henry H. Spencer

No. 28055

Supreme Court of Missouri

October 14, 1929

Rehearing Denied December 31, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Affirmed.

John P. Leahy, John V. Lee and William O. Gatewood for appellant.

(1) Amendments to answers which substantially change the defense should not be permitted to be filed, either on the eve of or during the trial of a case. Laughlin v. Leigh, 266 Mo. 620. (2) The only way in which the new matter set up in the amended answer could be pleaded was by way of mitigation. Sec. 1264, R. S. 1919; Radford v. Horton, 227 S.W 1073. (3) Conspiracy may be inferred from proof of concerted action by those alleged to be in it. Reger v. First Nat. Bank, 279 S.W. 1053; Kennish v. Safford, 193 Mo.App. 362. (4) The charges contained in the letter sent to the committee on grievances and to the plaintiff were libelous per se. Farley v. Publishing Co., 113 Mo.App. 216; Newell on Slander & Libel, 43, 174; Garb v. Selden, 6 Barb. (N. Y.) 416; Pattengill v. Morse, 113 Me. 412; Trimble v. Foster, 87 Mo. 49; Jones v. Murray, 167 Mo. 47; Callahan v. Ingram, 122 Mo. 355; Cook v. Printing Co., 227 Mo. 607; Sec. 1264, R. S. 1919; Ely v. Wilson, 315 Mo. 1214. (5) Defendant, having charged plaintiff with misconduct, will not be permitted to prove that he thought he was charging somebody else. Farley v. Pub. Co., 113 Mo.App. 216; Self v. Gardner, 15 Mo. 485; Jenkins v. Cockerham, 23 N.C. 309. (6) Where the defendant admitted the libel and did not dispute it, there was nothing for the jury to do but consider the facts shown in mitigation and determine the damages. Plaintiff's Instruction E should have been given. Haynes v. Robertson, 190 Mo.App. 156; Brown v. Printing Co., 213 Mo. 611. (7) The jury might take into their consideration not only the extent or continuance of the circulation given to the defamatory words, but the tardiness or absence of any apology. The refusal of plaintiff's Instruction E was error. Newell on Slander & Libel, 821; Hosley v. Brooks, 20 Ill. 115; Humphries v. Parker, 52 Me. 502; Lewis & Herrick v. Chapman, 19 Barb. (N. Y.) 252. (8) Instructions should be based on the pleadings, and the evidence, and should not travel outside of them or attempt to contradict them. The giving of Instruction 6 for the defendant was error. State ex rel. Goessling v. Daues, 284 S.W. 463; Goessling v. Brick Co., 270 S.W. 390; Morton Elec. Co. v. Schramm, 277 S.W. 368.

Anderson, Gilbert & Wolfort for respondents.

(1) Plaintiff failed to prove the case pleaded. The verdict was for the right party. (2) The giving of Instruction 6 was not error. (3) There was no error in allowing amended answer to be filed. R. S. 1919, Sec. 1274. (4) There was no error in refusing Instruction E. Patterson v. Evans, 254 Mo. 303; Heller v. Publishing Co., 153 Mo. 205. (5) The demurrers to the evidence should have been sustained, as the communication was privileged. Des Barres v. Tremaine, 16 Nova Scotia 215; Waring v. McCaldin (Ire.), 7 Ire. C. L. 228; White v. Nicholls, 3 Hawai'i 266, 11 L.Ed. 591; McAllister v. Press Co., 76 Mich. 338; McKee v. Hughes, 133 Tenn. 455, 181 S.W. 930; Coogler v. Rhodes, 38 Fla. 240; Hill v. Murphy, 212 Mass. 1; Aldrich v. Printing Co., 8 Minn. 133; Tyler Commercial College v. Lattimore (Tex.), 12 S.W.2d 680; Van Loon v. Van Loon, 159 Mo.App. 271; Peak v. Taubman, 251 Mo. 419; State ex rel. v. Cox, 298 S.W. 840.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Action for libel, instituted by plaintiff, a lawyer, against the W. E. Fuetterer Battery & Supplies Company, a Missouri corporation, and three individuals, William E. Fuetterer, Estelle Green and Henry H. Spencer, as defendants, wherein plaintiff seeks the recovery of $ 100,000 as compensatory damages and $ 50,000 as punitive damages. The defendant, Estelle Greene, was employed as a bookkeeper by the corporate defendant during the years 1923 and 1924, and the defendant, Henry H. Spencer, is a lawyer who, at times, appears to have represented the corporate defendant. A trial of the action to a jury resulted in the return of a unanimous verdict in favor of all of the defendants. After unsuccessful motions for a new trial and in arrest of judgment, plaintiff was allowed an appeal to this court from the adverse judgment entered upon the verdict.

The petition charges, in substance, that the several defendants maliciously, unlawfully, willfully, wrongfully and wantonly combined and confederated together with the purpose and intent of injuring the plaintiff in his good name and fame, and in the practice of his profession, by making false, unfounded, untrue and malicious statements in writing, of and concerning the plaintiff, by writing, or causing to be written, on or about February 12, 1924, a certain letter addressed, directed, mailed and delivered to the Grievance Committee of the St. Louis Bar Association, in which letter the defendants stated of and concerning plaintiff the following false, unfounded, untrue and libelous matter, to-wit: "I have been double-crossed by a lawyer in St. Louis. . . . Mr. Frank Lee of that firm called to see me, professing the closest friendship. He said he would not handle the said company's case if I was going to contest it. He said that he was my attorney and would look out for my interests. . . . Relying upon him, I disclosed my whole hand to him, including my claim for damages on account of breach of contract. . . . Mr. Lee has disregarded his relationship with me as my attorney. . . . I claim that Mr. Lee has deliberately switched from my side of the case to the other, after assuring me that he would remain my attorney, and that he used the confidential information which I gave him to make my case much harder; . . . that he was my attorney and would not do anything unfriendly to my interests; . . . that it was after this assurance on his part that I disclosed my secrets to him."

The several defendants answered jointly, denying generally the allegations of the petition. During the progress of the trial, the corporate defendant, and the individual defendant William E. Fuetterer, were permitted to file an amended answer, over the objection and exception of plaintiff. The amended answer of the two defendants aforesaid avers that these defendants, on or about February 12, 1924, wrote and caused to be written, addressed, directed and delivered to the Grievance Committee of the St. Louis Bar Association a certain letter, which is set out verbatim in the amended answer, and which letter will appear hereafter in this opinion. The amended answer further avers that the statements in said letter are each and every one true, and "that the Mr. Lee who called upon these defendants stated that his name was Frank Lee; that the Mr. Lee who called on said defendant, W. E. Fuetterer Battery & Supplies Company, was the only Mr. Lee to whom defendant, W. E. Fuetterer, gave the confidential information about the claim against the Cincinnati Storage Battery Company; that thereafter defendant William E. Fuetterer was called before said Grievance Committee of said Bar Association and there were present two Messrs. Lee; that said defendant pointed out the Lee who he claimed had been out to his place of business, and was informed it was John V. Lee, not Frank Lee; that the communication to the Grievance Committee of said Bar Association by these defendants was written in their private, public, social, civil and moral duties and interests, for the purposes set out in said letter, and is a privileged communication."

The reply to said amended answer is a general denial.

The uncontroverted evidence herein is that the defendant, William E. Fuetterer, caused to be written and mailed a certain letter, dated February 12, 1924, addressed and directed to "Grievance Committee, St. Louis Bar Association, care of Mr. George C. Hitchcock, Federal Reserve Bank Building, St. Louis," which letter reads as follows:

"I have been double-crossed by a lawyer in St. Louis and I want to state the facts to you to see if you can do anything for me.

"For many years the firm of W. O. Gatewood & Associates International Life Building, have been handling legal business for me, and I have become rather well acquainted with Mr. Lee of that firm and have considered him my personal attorney in commercial matters.

"Last fall I had a dispute with the Cincinnati Storage Battery Company of Cincinnati, Ohio, whom I have represented in St. Louis and vicinity as sales agent for some years. This dispute involved the Cincinnati company selling to other dealers in my territory, contrary to their written contract with me, and causing me a damage in the neighborhood of $ 8,000; at the time I owed the Cincinnati Storage Battery Company $ 1,223.97 on account, which, of course, I refused to pay them until they gave me satisfaction on the other matter.

"The Cincinnati company put this account in regular collection channels and it came, thereby, into the hands of Gatewood & Lec. Mr. Lee of that firm called to see me, professing the closest friendship. He said that he would not handle the said company's case if I was going to contest it. He said that he was my attorney and would look out for my interests.

"Relying upon him, I disclosed my whole hand to him, including my claim for damages on account of breach of contract. My desire, of course, was to get the Cincinnati Storage Battery Company to sue me on this account in St. Louis, so that I could have them in court to answer my claim against them otherwise it would be necessary for me to go to Cincinnati, file suit there, take...