Life Ass'n of America v. Boogher

• Decision Date: 18 December 1876
• Citation: 3 Mo.App. 173
• Parties: LIFE ASSOCIATION OF AMERICA, Appellant, v. DAVIS R. BOOGHER, Respondent.
• Court: Missouri Court of Appeals

3 Mo.App. 173

LIFE ASSOCIATION OF AMERICA, Appellant,

v.DAVIS R. BOOGHER, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 18, 1876.

An injunction will not lie to restrain the publication of a libel. Courts have no power to suspend or abridge the right of every person to “freely speak, write, or print on any subject.”

APPEAL from St. Louis Circuit Court.

Affirmed.

Irwin Z. Smith and H. A. Clover, for appellant, cited: Townsh. on S. & L. 90, sec. 52; Hoveys v. Rubber-tip Pencil Co., 33 N. Y. 522; Kerr on Inj. 2, 487; Brandreth v. Lance, 8 Paige, 24; Dixon v. Holden, Law Rep. 7 Eq. 488; Clover v. Roydon, Law Rep. 17 Eq. 190; Law J. 43 Eq. 665; Hill. on Inj. 568, note; Springhead Spinning Co. v. Riley, 37 Law J. 889; Prudential Assurance Co. v. Knott, Law Rep. 10 Ch. 142; Fisher v. Apollinaris Co., Law Rep. 10 Ch. 297; Flemming v. Newton, 1 H. L. Rep. Cas. 363; Rollins v. Hinks, 13 Eq. App. 355; Axmann v. Land, 18 Eq. App. 330.

W. H. H. Russell, Robert W. Goode, and Marshall & Barclay, for respondent, cited: Kerr on Inj. 2; 1 Joyce on Inj. 715; High on Inj., sec. 669; Hill. on Inj., 3d ed., 553, sec. 71; Brandreth v. Lance, 8 Paige, 24; Clark v. Freeman, 11 Bevan, 112; Prudential Assurance Co. v. Knott, Law Rep. 10 Ch. 142; Mulkern v. Ward, Law Rep. 13 Eq. 619; Clover v. Roydon, Law Rep. 17 Eq. 190; Fisher v. Apollinaris Co., Law Rep. 10 Ch. 297; Hammersmith Skating Rink Co. v. Dublin, etc., 2 Law & Eq. Rep. 192; Const. 1865, art. 1, sec. 17; Const. 1865, art. 2, sec. 14; Cooley's Const. Lim., 3d ed., 420 et seq.; Thursby v. Mills, 11 How. Pr. 116; Hill. on Inj. 34, sec. 43; Story's Eq., 10th ed., sec. 959 a.

GANTT, P. J., delivered the opinion of the court.

The Life Association of America, a corporation engaged in the business of life assurance at St. Louis, filed its petition charging that Boogher and one Taylor had been for a long time engaged in the composition, publication, and circulation of false, slanderous, malicious, and libelous statements (setting them forth) respecting the plaintiff, and that they threatened still further to circulate and publish, orally, in writing, and in print, said false, slanderous, malicious, and libelous statements, for the purpose of injuring, and in order to levy black-mail on, the plaintiff; that the said Boogher and Taylor were wholly insolvent and irresponsible, and that plaintiff had, therefore, no available recourse to an action for damages; and it asked for a restraining order to prevent the further publication of the libel, and the infliction on plaintiff of irreparable injury thereby. This petition was verified by affidavit, and the court granted a preliminary injunction, which was afterwards dissolved upon a demurrer and motion at the return term. The plaintiff dismissed the suit as to Taylor. The demurrer assigned for reasons that the petition showed no case for equitable relief: that it prayed for what the Constitution of the State forbade; that a court of equity had no jurisdiction to restrain the publication of a libel; and that the application for a restraining order was not seasonably made. The court sustained the demurrer, dissolved the injunction, dismissed the petition, and assessed damages on the injunction-bond. Plaintiff appealed to this court. We are told in the petition, by way of aggravating the offense of the libeller, that his purpose was “to levy black-mail” on the plaintiff. No explanation is given of this phrase, and its use is hardly justifiable, for it cannot be considered quite intelligible. It certainly cannot be called plain English. Originally, we learn from philological authority, it had a definite but provincial meaning, familiar to those who inhabited the country periodically devastated by Highland robbers. It was, indeed, the tribute levied by these last on the peaceable but unwarlike inhabitants of the Lowlands of Scotland, which, being paid promptly, and at regular intervals, was a substitute for complete spoliation. In this country the phrase has been sometimes used in a metaphorical sense, to signify any unlawful exaction of money by an appeal to the fears of the victim, and we may conjecture that this use of it was intended by the draughtsman of this petition. But this conjecture cannot supply the demand made by the universal rule of pleading, that the complaint should be set forth in plain language, a statement of the facts constituting the plaintiff's cause of action. In the case before us no change will have been made in the opinion we express by the failure to explain the circumstances of aggravation which are charged, for enough is stated to inform us that defendant has uttered a malicious, false, scandalous, and libelous statement respecting the plaintiff, and that with the purpose of inflicting injury on the plaintiff defendant proposes and threatens to repeat and enlarge the wrong and injury already inflicted; that the resulting loss to the plaintiff will be great, and irreparable by civil action, because of the insolvency of the defendant; and thereupon the aid of a court of justice is claimed, to prevent that for which, if perfected, it cannot give compensation.

It is obvious that, if this remedy be given on the ground of the insolvency of the defendant, the freedom to speak and write, which is secured, by the Constitution of Missouri, to all its citizens, will be enjoyed by a man able to respond in damages to a civil action, and denied to one who has no property liable to an execution.

We are of opinion that this discrimination was not intended by the framers of the organic law. It never was the purpose of them, or of those who have most strenuously advocated the freedom of the press or of speech, that any person should have unbridled license of tongue or pen. It is an offense against the peace of society that malicious libels should be uttered, even if true. The law does not justify the gratification of malevolent feelings by even true charges calculated to wound the feelings, blast the character, and exasperate beyond endurance the passions of their object. The guilt of the libeler is aggravated, almost infinitely, by the falsehood of the accusation; but it is no complete defense, in a criminal prosecution, that the defendant has stated no more than he stands ready to prove. In such a case as this petition states, there is a punishment provided by the criminal law. It is no answer to say that this punishment is inadequate. Courts do not sit to listen to such objections. It is undeniable that, in such a case as the petition shows, the party slandered may have an action for damages. But in such an action, irrespective of the suggestion of the absolute insolvency of the defendant, there is much room for saying that the legal remedy falls short of making full compensation...