Mccormick v. Ford Wifo. Cc,

• Decision Date: 23 June 1921
• Docket Number: No. 21436.,21436.
• Citation: 232 S.W. 1010
• Parties: MCCORMICK v. FORD MEG. Co.
• Court: Missouri Supreme Court

232 S.W. 1010

MCCORMICK v. FORD MEG. Co.

No. 21436.

Supreme Court of Missouri, Division No. R.

June 23, 1921.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Action by J. Butler McCormick against the Ford Manufacturing Company. Judgment for defendant, when plaintiff refused to plead further after demurrer to its amended petition was sustained, and plaintiff appeals. Affirmed.

This is an action for an alleged libel brought by plaintiff against defendant in the circuit court of the city of St. Louis, Mo., returnable to the October term, 1917, thereof. Plaintiff filed an amended petition, which (omitting caption) reads as follows:

"Plaintiff, by leave of court first had and obtained, files this, his first amended petition, and states at all the time and times hereinafter mentioned defendant was a corporation organized and existing under and by virtue of the laws of the state of Missouri, and having its principal office and place of business in the city of St. Louis and said state; and that the plaintiff is and was an attorney practicing his profession in the city of St. Louis and state of Missouri as a means of livelihood.

"For cause of action plaintiff states that heretofore, to wit, on the 17th day of May, 1917, plaintiff filed in the circuit court of the city of St. Louis petition to recover compensation for legal services rendered theretofore to defendant as its attorney in the cause of action, J. Butler McCormick v. Ford Mfg. Co., a Corporation, being No. 10482, returnable for the June term, 1917, which cause is now pending therein, and plaintiff states that defendant, through its attorney of record, published and filed an answer to said complaint, which answer is libelous and defamatory, and is on file in the said cause in the circuit court of the City of St. Louis, and said libelous and defamatory answer was mailed to and received by plaintiff, and said libelous answer so filed where it was read by the clerks of said court whose business is to read and inspect pleadings, and by attorneys practicing in said court, and by divers persons to plaintiff unknown and thus published.

"Plaintiff further states that said libelous and defamatory answer will be forever on the records and files of the circuit court for inspection and reading of any person so desiring, and the following libelous and defamatory words and phrases are contained in the said answer, to wit:

"`It being No. 87192, room 7, October term, 1913, and there was a trial in said court on June 29, 1913, which resulted in judgment for defendant, and the lien was not sustained, and defendant believes and so states the facts to be that it lost its claim entirely because of the lack of knowledge and skill on the part of plaintiff herein, and that as a direct result thereof defendant lost said cause of action, and was compelled to pay $31 court costs in said cause, and the defendant herein asks judgment of this court against the plaintiff for the loss sustained herein, being its debt which was lost through the negligence and carelessness or lack of legal ability on the part of plaintiff herein, and the court costs expended.'

"Plaintiff states said statements in answer were false and malicious, and were not germane to the cause at issue, and was intended to charge, and it did charge, and was understood to charge by persons whose hands this pleading came into.

"Plaintiff says that said publication in said answer of said libel is willful, wanton, and malicious, and was especially damaging to plaintiff, by reason of the fact that plaintiff was a practicing attorney in the courts of St. Louis and the state of Missouri, so that plaintiff is damaged in the sum of $50,000, and plaintiff, by reason of such malicious conduct, prays judgment for punitive damages in the sum of $50,000, making the whole plaintiff asks to recover being $100,000, together with his costs."

To this amended petition defendant filed a demurrer on the ground that it did not state facts to constitute a cause of action, and on October 12, 1918, said demurrer was taken by the court and sustained. Plaintiff declined to plead further, and suffered judgment to go against him, to which action he excepted, and has duly appealed said cause to this court.

J. Butler McCormick, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

MOZLEY, C.

(after stating the facts as above). [1] 1. The question presented here for our decision is whether or not the language above set out as libelous is actionable or privileged. The rule announced as to whether or not a pleading filed in a pending suit is libelous or privileged is stated as follows:

"Defamatory matter contained in pleadings, if relevant and pertinent to the issue in the case, is absolutely privileged; and it is immaterial that the allegations are false and malicious, and made under pretense or groundless suit." Maginn v. Schmick, 127 Mo. App. 411,...