McCloskey v. Pulitzer Pub. Co.

• Decision Date: 14 November 1899
• Citation: 152 Mo. 339,53 S.W. 1087
• Court: Missouri Supreme Court
• Parties: McCLOSKEY v. PULITZER PUB. CO.

53 S.W. 1087

152 Mo. 339

McCLOSKEY v. PULITZER PUB. CO.

Supreme Court of Missouri, Division No. 2.

November 14, 1899.

LIBEL PER SE — DEFENSE — TRUTH — PROVINCE OF JURY — INSTRUCTIONS — EVIDENCE.

1. Where there is evidence tending to prove the truth of a per se libelous publication, an instruction that, if the jury believe the article itself was false and libelous, defendant's good faith in making the publication is no defense, is not erroneous, as contravening Rev. St. 1889, § 3872, which provides that in actions for libel the jury shall, under the direction of the court, determine the law and the facts; since, if true, the publication is not libelous.

2. Under Const. art. 2, § 14, providing that in all prosecutions for libel the jury shall, under the direction of the court, determine both the law and the facts, where there is evidence tending to prove the truth of an otherwise per se libelous publication, an instruction that the jury were the sole judges as to the libelous character of the article is not erroneous, since, though the publication may have been actionable per se, it only conferred on plaintiff a prima facie right of action, and entitled him to recover damages without evidence of damage other than that which might be implied or inferred from the publication, which right would be overcome by proof of the truth of the publication.

3. Const. art. 2, § 14, providing that in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the facts, applies alike to both civil and criminal actions for libel.

4. It is error to refuse an instruction defining libel in accord with the statutory definition, because it does not inform the jury that proof of the truth of the publication was a defense, since such fact is no part of the definition of libel.

5. In an action for the publication of a libel charging that plaintiff had instituted proceedings to procure a divorce from his wife, which the answer charge to be true, the petition filed by plaintiff in such divorce proceedings is competent to prove the pendency thereof.

6. Proof of the truth of facts stated in an alleged libelous publication is admissible to show that it was made in good faith, and without malice.

7. Where an alleged libelous publication purported to be an interview with plaintiff's wife,

wherein she charged that plaintiff failed to support her, and the answer alleged that the article was the wife's answer to a previous article in defendant's paper, which in turn was a comment on a notice inserted in another paper by plaintiff to the effect that he would not be responsible for debts incurred by his wife, the previous publication in defendant's paper is admissible in evidence.

Appeal from St. Louis circuit court; Selden P. Specner, Judge.

Action by John McCloskey against the Pulitzer Publishing Company for damages for the publication of an alleged libel. From a judgment in favor of defendant, plaintiff appeals. Reversed.

John R. Myers and Charles & Lackey, for appellant. F. N. Judson and J. Clarence Taussig, for respondent.

BURGESS, J.

This is an action for libel, which resulted in a verdict and judgment for defendant, from which plaintiff appeals. The publication complained of is as follows: "Mrs. McCloskey's Side. She Says Her Husband Does not Give Her Enough to Eat. If all, or even half, Mrs. John McCloskey says about her husband is true, he is about the toughest kind of a man a woman could get hold of for a husband. John and his wife are getting a divorce from each other; that is, he has asked for it, and she is dead willing that he should have it. Although the case is now pending, they occupy the same house, 1103 Dolman street. Life must be one long nightmare for them both. They have seven children, and this is what keeps them within touching distance. The husband precipitated the storm yesterday by advertising in the newspapers that he would not be responsible for his wife's debts, and warning all tradesmen not to give her credit, with a view to calling on him for settlement. This brought Mrs. McCloskey to the Post-Dispatch office. `Why, that man,' she said, `did not give me money enough to buy bread for my children. He is worth $100,000, and this very dress I've got on, I bought last winter. I never tried to run any bills for clothes; that's the reason my children and I are ragged. What do you think of a man who treats his family like that? He put that in the paper for spite. The court ordered him to pay me $30 a week alimony while the divorce suit is in court. He did not do it, and yesterday the constables attached his stand in the Union Market for $450. This made him mad. He has threatened harm to me, and if he makes any disturbance to-night I'll let you know by telephone.' No message was received. McCloskey is president of the St. Louis Carbonating and Manufacturing Company." Defendant, in its answer denied that the article complained of was false and defamatory, and alleged that it had been preceded by a previous publication in the Post-Dispatch, entitled "A Question of Finance," which in turn grew out of an advertisement inserted in the Globe-Democrat by plaintiff, in which he gave notice to the public that he would not be responsible for his wife's debts. The plaintiff introduced no evidence in chief except the alleged libelous publication. The evidence of defendant showed that Mrs. McCloskey, the wife of the plaintiff, having seen the article in the Post-Dispatch entitled "A Question of Finance," was desirous that the paper should publish her side of the controversy between her husband and herself. Thereupon, accompanied by her daughter, she called at the office of the Post-Dispatch, and, in the presence of her daughter, told to the reporter that which was credited to her in the alleged libelous article. Miss Annie McCloskey, the daughter, testified that the interview with her mother published in the article complained of was substantially as Mrs. McCloskey had given it to the reporter. It was also shown in evidence that Mr. McCloskey had inserted the advertisement in the Globe-Democrat, warning the public that he would not be responsible for his wife's debts. To prove the fact, as alleged in the publication complained of, that a divorce suit between Mr. and Mrs. McCloskey was pending, defendant put in evidence the petition of Mr. McCloskey praying for a divorce. Previously, in order to show the cause of Mrs. McCloskey coming to the office to tell her side of the story, and defendant's motive in publishing the article complained of, the defendant introduced in evidence the article entitled "A Question of Finance." The only evidence in rebuttal introduced by the plaintiff was that of Mr. McCloskey, whose testimony was not directed to the rebuttal of defendant's evidence tending to prove the truth of the publication which he complained of in his petition, but was directed solely to proving that he did not make the statement contained in the article entitled "A Question of Finance," the publication of which he does not complain of in his petition.

Plaintiff asked the court to instruct the jury as follows: "(1) The court instructs the jury that, although you may believe from the evidence that a part or the whole of the article set out in plaintiff's petition was made to defendant by the wife of plaintiff, and although you may believe from the evidence that the defendant published the same believing in good faith that the same was true, yet [if you believe the article itself was false and libelous] the court instructs you that the defendant's good faith or belief in the truth of said article does not constitute a defense in this case, but the jury should consider the same in mitigation...