Legg v. Dunleavy

• Decision Date: 31 October 1883
• Parties: LEGG, Appellant, v. DUNLEAVY et al.
• Court: Missouri Supreme Court

80 Mo. 558

LEGG, Appellant,

v.DUNLEAVY et al.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Taylor & Pollard for appellant.

A publication affecting one in his office or trade, if false, is libelous per se, and special damages need not be alleged or proved. Kimball v. Fennander, 21 Wis. 334; Pollard v. Lyon, 91 U. S. 226: Weiss v. Whitman, 28 Mich 366; Butler v. Homes, 7 Cal. 87; Wilson v. Fitch, 41 Cal. 386; White v. Nichols, 3 How. (U. S.) 285; Orr v. Scofield, 56 Me. 487. The meaning of the words “supervising architect” being commonly known, it was not necessary by prefatory allegations to aver their meaning. Bowman v. Piper, 91 U. S. 37; Wharton Ev., § 282; Bliss' Code Plead., § 187; Townsend on Slander and Libel, § 133; Elam v. Badger, 23 Ill. 498; Edgar v. McCutchen, 9 Mo. 448. Refusing plaintiff's instructions one and two was error. Wilson v. Fitch, 41 Cal. 363; Weiss v. Whitman, 28 Mich. 366; Wilson v.Noonan, 35 Wis. 321. The giving of defendants' instruction five was error. Instructions not predicated upon the evidence, should not be given. O'Fallon v. Boismenn, 3 Mo. 405; Hayes v. Bell, 16 Mo. 496; Franz v. Hilterbrand, 45 Mo. 121. Pleadings in libel are governed by the same rules as in other cases, with the one statutory exception, that the defendant may allege both the truth of the matter charged and any mitigating circumstances admissible in evidence, to reduce the amount of damages. R. S., p. 606; Atteberry v. Powell, 29 Mo. 429; Cable v. McDaniel, 33 Mo. 363; Buckley v. Knapp, 48 Mo. 157; Darrett v. Donelly, 38 Mo. 492; Adams v. Trigg, 37 Mo. 147. The libel published was not a privileged communication. Townsend on L. and S., 243; Taylor v. Church, 8 N. Y. 460.

T. A. & H. M. Post and C. F. Moulton for respondents.

The petition states no facts sufficient to constitute a cause of action. The affidavit was not libelous per se. See Towsh. Lib. and Sl., §§ 183, 190; Odgers Lib. and Sl., *65; Cooley Torts, p. 202; Nelson v. Brochemies, 52 Ill. 236; Orr v. Scofield, 56 Me. 483; Fowles v. Bowen, 30 N. Y. 20; Galway v. Marshall, 9 Exch. 294; Ayre v. Craven, 2 Ad. & El. 2; Sibley v. Tomlins, 4 Tyrw. 90; Angle v. Alexander, 9 Bing. 123; Brayne v. Cooper, 5 Mees & W. 249. There is nothing in the affidavit from which the deduction may be egitimately drawn that the taking of commissions by plaintiff, as architect and superintendent, was calculated to degrade or injure him in his calling as such. Since the affidavit was not libelous per se, plaintiff was bound to show by extrinsic averments, what he has failed to show, that the language employed in the affidavit was in fact defamatory to plaintiff in his calling as an architect. McManus v. Jackson, 28 Mo. 58; Bundy v. Hart, 46 Mo. 164; Stewart v. Wilson, 23 Minn. 449; Kinney v. Nash, 3 N. Y. 177, 182; Curry v. Collins, 37 Mo. 329; Price v. Whitely, 50 Mo. 440, 441; Mosely v. Moss, 6 Gratt. 538; Geisler v. Brown, 6 Neb. 254; Stone v. Cooper, 2 Den. 299; Moore v. Bennett, 48 Barb. 229. What the defendants meant or were understood to mean, is immaterial, unless the words themselves were of a defamatory character. Townsend on Libel and Slander, § 336, note 2; Starkie on Slander, top pp. 427, 422; Liebehardt v. Byerly,53 Pa. St. 420; Bundy v. Hart, 46 Mo. 464; Caldwell v. Raymond, 2 Abb. Pr. 195; Fry v. Bennet, 2 Sandf. 54; Hunt v. Bennet, 19 N. Y. 173. The court committed no error as to the instructions.

EWING, C.

This is an action for libel by the appellant. Judgment in the St. Louis circuit court for defendants. Appealed to the St. Louis court of appeals where the judgment was affirmed and brought here for review. The judgment of the circuit court was affirmed upon the ground that the petition does not state a cause of action. And it will be therefore necessary to set out the petiton in full which is as follows. The plaintiff complains and alleges:

1. That the plaintiff, on the 6th day of August, 1879, was, and for several years prior thereto, had been and still is an architect and superintendent, and as such was, had been, and still is carrying on the business as architect and superintendent in the city of St. Louis, and State of Missouri; and had always, as such architect and superintendent conducted and demeaned himself with honesty and fidelity, and had never been guilty of any misconduct or malpractice in his said capacity and profession of architect and superintendent. That by reason of said capacity and fidelity, the plaintiff in his capacity of architect and superintendent had on the 6th day of August, 1879, acquired a large and lucrative business in his profession aforesaid, and enjoyed the confidence of the best citizens and business men of the city of St. Louis, and, but for the grievances hereafter complained of would still have enjoyed the same.

2. That on or about the 8th day of August, 1879, and on divers other days, thereafter and before the bringing of this suit, the said defendants, in the city of St. Louis, State of Missouri, published and caused to be published, shown and exhibited to divers persons, the following written words concerning the plaintiff, and of and concerning him in his capacity and profession of architect and superintendent, to-wit:

STATE OF MISSOURI,

)

)

ss.

City of St. Louis.

)

Be it remembered that on this 6th day of August, 1879, personally appeared before me the undersigned a notary public within and for the city and state aforesaid, duly qualified for a term expiring January 8th, 1882, Anthony C. Dunleavy, who being by me duly sworn, on his oath deposes and says that heretofore, to-wit, on the 1st day of June, 1873, he was a member of the firm of John E. Oxley & Co., doing business in the city of St. Louis; that said firm on said date, made a proposition to do the galvanized firon, tin and copper work, on and about a certain public school building in course of erection, at Litchfield, Illinois, of which building one, J. B. Legg, of St. Louis, was supervising architect, and the deponent further says that said J. B. Legg promised John E. Oxley, the other member of said firm of John E. Oxley & Co., to give said firm the contract for said work on the building aforesaid, provided the sum of $200 was paid to him, the said Legg, as commissions by the said firm of John E. Oxley & Co., the said John E. Oxley agreed to pay said amount to said Legg, and informed this deponent of said agreement, and the said sum of $200 was afterwards paid by this deponent to said J. B. Legg according to said agreement, the last payment of $100 being made by this deponent to J. B. Legg on the 9th day of June, 1873, and further this deponent says not.

A. C. DUNLEAVY.

Sworn and subscribed before me this 6th day August, A. D. 1879.

AUGUST AHRENS,

[L. S.]

Notary Public, City of St. Louis.

3. That the defendants meant thereby to impress the public with the belief, that plaintiff was wholly unworthy of confidence and trust, in said capacity and profession of architect and superintendent, and said publication was so understood to imply, by those to whom the same was published and exhibited as aforesaid.

4. The said publication was false and malicious and by means thereof, plaintiff hath been and is greatly injured, prejudiced in his reputation aforesaid, and has, also, lost and been deprived of great gain and profit, which would otherwise have accrued to him in his said profession and business of architect and superintendent, to-wit, $50,000.

Plaintiff says he is damaged in the sum of $50,000, for which and costs, he demands judgment.

The answer is 1st, A general denial; 2nd, Justification; 3rd and 4th, That the publication was privileged. There was judgment for defendant.

I. The first point made by the respondents is that the petition does not state a cause of action. If this be true it is an end of the case and it will not be necessary to look further into it. As far back as 10 Mo. 648, in the case of Nelson v. Musgrave, Judge Napton quoted with approval the definition of libel from Judge Parsons in Commonwealth v. Clapp, 4 Mass. 168, which is as follows: “A malicious publication expressed either in printing or writing, or by signs or pictures, tending to either blacken the memory of the dead, or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule.” This definition was again approved by Bliss, J. in Price v. Whitely, 50 Mo. 439. In what manner does the affidavit of Dunleavy, set out in the petition, blacken the reputation of the plaintiff? It in substance alleges that plaintiff was supervising architect of a certain building and defendants paid him a commission to give defendants the contract for certain work thereon. Suppose that was true, how would it show that plaintiff was degraded or brought into contempt or ridicule? The words to be actionable per se “must be such as if true would disqualify him or render him less fit properly to fulfill the duties incident to the special character he has assumed.” Towns. Lib. & Sl., § 190--“Words to be actionable on this ground (as disparaging plaintiff in his calling) must touch him in his office, profession or trade.” “They must impeach either his skill or knowledge, or his official or professional conduct.” Odgers on Lib. & Sl., 65; Fitzgerald v. Redfield, 51 Barb. 484. Every false charge is not libelous. It must come within the...