McDonald v. R.L. Polk & Co.

• Decision Date: 16 August 1940
• Docket Number: 36586
• Citation: 142 S.W.2d 635,346 Mo. 615
• Parties: Thomas F. McDonald v. R.L. Polk & Company, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 635

346 Mo. 615

Thomas F. McDonald v. R.L. Polk & Company, Appellant

No. 36586

Supreme Court of Missouri

August 16, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Thomas J Rowe, Judge.

Affirmed.

Williams Nelson & English, Cullen, Storckman & Coil and Everett H. Wells for appellant.

(1) The demurrer to the evidence offered by defendant R. L. Polk & Company should have been sustained and a verdict directed in favor of that defendant because: (a) To hold defendant responsible for the publication of a libelous circular not composed, written or printed by, but merely transmitted by such defendant, it must appear that the defendant was aware that such circular was or probably might be libelous. The uncontradicted evidence of plaintiff's witnesses showed that this defendant was wholly ignorant of the contents of such libelous circular so transmitted. Becker v Brinkop, 78 S.W.2d 538; Bowerman v. Detroit Free Press, 283 N.W. 642; Sullivan v. Connecticut Mut. Life Ins. Co., 88 S.W.2d 167, 337 Mo. 1084. (b) Witnesses called by the plaintiff testified without contradiction that defendant R.L. Polk & Company had no knowledge of the contents of the circular in question. Plaintiff vouched for the credibility of these witnesses and is bound by their testimony even though they were employees of defendant. Costello v. Pitcairn, 116 S.W.2d 264, 232 Mo.App. 1189; Rodan v. St. Louis Transit Co., 207 Mo. 408; Raw v. Maddox, 230 Mo.App. 315, 93 S.W.2d 284; Claflin & Co. v. Dodson, 111 Mo. 201; Smith v. Met. St. Ry. Co., 201 S.W. 569; Conaghan v. Dean, 96 S.W.2d 925; State ex rel. Arndt v. Cox, 38 S.W.2d 1084; People's Finance Corp. v. Buckner, 126 S.W.2d 303; Platt v. Platt, 123 S.W.2d 55. (c) Defendant R. L. Polk & Company cannot be charged with any knowledge, acquired through curiosity, by its errand boy, whose duties were merely ministerial, who had no power to bind his principal, and who was under no duty to impart and did not actually impart any information acquired by him with respect to such circular. 2 C. J. 865, 866; King v. Rowlett, 120 Mo.App. 124; Wheeler v. St. J. Stockyards & Terminal Co., 66 Mo.App. 273; Hunter v. Hunter, 39 S.W.2d 365; C. I. T. Corp. v. Byrnes, 38 S.W.2d 750; Royle Mining Co. v. Fidelity & Cas. Co., 161 Mo.App. 185; Watson Fire Proof, etc., Co. v. Weiss Cornice Co., 181 Mo.App. 318; Wright v. Great Eastern Cas. Co., 229 S.W. 440; Hickman v. Green, 123 Mo. 174; Griffith v. Lewis, 17 Mo.App. 605; Donham v. Hahn, 127 Mo. 439; Kelley v. Peeples, 192 Mo.App. 435. (d) Even in a libel action, failure of the court to properly direct and instruct the jury is error. Leedy v. Wolf, 199 S.W. 1002; Warren v. Pulitzer Pub. Co., 78 S.W.2d 417; Sullivan v. Conn. Mut. L. Ins. Co., 88 S.W.2d 174. (2) Instruction 1, given at plaintiff's request, is erroneous because: (a) While it undertakes to cover the whole case and directs a verdict for the plaintiff, it omits to hypothesize the necessary fact that the defendant knew the contents of the circular or had reason to suppose that it was likely to contain libelous matter. State ex rel. v. Ellison, 272 Mo. 583; Thompson v. St. Joseph L. & P. Co., 131 S.W.2d 574; Warren v. Pulitzer Pub. Co., 78 S.W.2d 417; Klaber v. C., R. I. & P. Ry. Co., 225 Mo.App. 940, 33 S.W.2d 149. (b) It instructs on a false issue authorizing recovery by plaintiff even though the transmission of the circular by defendant R. L. Polk & Company was the result of "oversight" or "mistake," and thereby instructs that said defendant could be held responsible for libel when it had not consciously published such libel. Becker v. Brinkop, 78 S.W.2d 538; Murphy v. Great American Ins. Co., 268 S.W. 673; Bennett v. Natl. Union Fire Ins. Co., 230 Mo.App. 939, 80 S.W.2d 919; Gandy v. St. L.-S. F. Ry. Co., 329 Mo. 467, 44 S.W.2d 638; Friedman v. Pulitzer Pub. Co., 102 Mo.App. 695. (c) In submitting to the jury the issue of "oversight or mistake," the court directs recovery against defendant for an unintentional wrong. The law does not permit a party to base his action on a willful tort and recover for an unintentional wrong. Robbs v. Mo. Pac. Ry. Co., 242 S.W. 159; Gibeline v. Smith, 106 Mo.App. 550; Christy v. Butcher, 153 Mo.App. 397, 134 S.W. 1058; Waechter v. St. L. & M. R. Ry. Co., 113 Mo.App. 270, 88 S.W. 147. (3) Instruction 7, given at plaintiff's request, is erroneous because it authorizes recovery against a defendant "innocent" of wrongdoing. Summit Hotel Co. v. Natl. Broadcasting Co., 8 A.2d 302; Webster's New International Dictionary (2 Ed.), Innocent. (4) Instruction 3, given at plaintiff's request, erroneously comments on the evidence and singles out and emphasizes certain evidence, without requiring the jury to take into consideration all the other evidence in the case. Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 751; Keppler v. Wells, 238 S.W. 428; Burton v. Holman, 288 Mo. 83, 231 S.W. 630. (5) Instructions B, C, D and E, requested by defendant R.L. Polk & Company were proper instructions and it was error for the court to refuse them.

Moser, Marsalek & Dearing for respondent.

(1) The court properly overruled the demurrer to the evidence. The liability of the appellant for compensatory damages was absolute, upon proof that appellant published concerning the respondent the false charges contained in the circular, which were libelous on their face. The essential features of the action are the falsity of the charges, their defamatory character, and the publication by appellant. All these facts were abundantly proven by the evidence, and in fact admitted. Jones v. Murray, 167 Mo. 49, 66 S.W. 981; Callahan v. Ingram, 122 Mo. 373, 26 S.W. 1020; McGinnis v. George Knapp & Co., 109 Mo. 150, 18 S.W. 1134; Flowers v. Smith, 214 Mo. 138, 112 S.W. 510; Grimes v. Thorp, 113 Mo.App. 657, 88 S.W. 639; Anderson v. Shockley, 159 Mo.App. 334, 140 S.W. 756; Farley v. Evening Chronicle, 113 Mo.App. 227, 87 S.W. 565; Peck v. Tribune Co., 214 U.S. 185, 53 L.Ed. 960; Taylor v. Hearst, 107 Cal. 262, 40 P. 392; Walker v. News Bee Pub. Co., 122 Neb. 511, 240 N.W. 579; Oklahoma Pub. Co. v. Givens, 67 F.2d 62; Peterson v. Western Union Tel. Co., 75 Minn. 368, 77 N.W. 985, 43 L. R. A. 581; Sorensen v. Wood, 123 Neb. 348, 243 N.W. 82; Miles v. Wasmer, Inc., 172 Wash. 466, 20 P.2d 847; Coffey v. Midland Broadcasting Co., 8 F.Supp. 889. Publication, in the law of defamation, is the communication of defamatory matter to a third person. Harbison v. C., R. I. & P. Co., 327 Mo. 456, 37 S.W.2d 609. The appellant, having induced the trial court to exclude evidence offered by respondent to show that appellant had reason to suspect that the circular might contain defamatory matter, is estopped to urge on appeal that such evidence was necessary. Appeal & Error, 5 C. J. S., sec. 1506, pp. 195-6; Davis v. Met. St. Ry. Co., 188 Mo.App. 128, 176 S.W. 1067; Geddes v. McElroy, 171 Iowa 633, 154 N.W. 320; Hills Admx. v. Met. L. Ins. Co., 240 Ky. 172, 41 S.W.2d 935. (2) Plaintiff's Instruction 1 was not erroneous. It was unnecessary for the instruction to require a finding that defendant knew or had reason to suspect that the circular was defamatory. Such a finding was not a necessary element of plaintiff's case. The fact that the petition pleaded that defendant's conduct was malicious did not preclude plaintiff from recovering actual damages in the absence of any finding of malice. Hoffman v. Walsh, 117 Mo.App. 278; Meeker v. Union E. L. & P. Co., 279 Mo. 602; Jackson v. Fire Brick Co., 219 Mo.App. 689; Scalpino v. Smith, 154 Mo. 534. (3) The court did not err in giving plaintiff's Instruction 7. The use of the word "innocently" in the instruction follows this court's statement of the law, and is appropriate in view of the evidence. Jones v. Murray, 167 Mo. 49, 66 S.W. 981; Farley v. Evening Chronicle Pub. Co., 113 Mo.App. 216, 87 S.W. 565; Webster's New International Dictionary, Innocent. (4) The court properly gave plaintiff's Instruction 3. Said instruction, when read as a whole, does not comment on a part of the evidence, but requires the jury to base its award of damages upon its findings based on all the relevant evidence on the subject. It is improper to construe an instruction by removing a part of its languarge from the context. State ex rel. Highway Comm. v. Day, 226 Mo.App. 893, 47 S.W.2d 147. (5) The court did not err in refusing defendant's instruction B, C, D and E. Under the law and the admitted facts of the case, the defendant's lack of knowledge of the contents of the circular was no defense. (6) The court did not err in admitting the testimony of witness Stroup that he read part of the circular, and in refusing defendant's Instruction F. The evidence was clearly admissible to identify the document sued on as the one published by the appellant. The instruction erroneously failed to confine the jury's consideration of the question of defendant's knowledge to the matter of punitive damages.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an action for damages for libel, and was commenced against appellant and Norman L. Nulsen, Albert G Nulsen, Sr., and Albert G. Nulsen, Jr. At the close of plaintiff's case, the court gave a peremptory direction to the jury to find for defendant, Albert G. Nulsen, Jr., and plaintiff, as to this defendant, took an involuntary nonsuit with leave, but did not, so far as appears here, file motion to set aside the nonsuit. At the close of the whole case the jury found for defendant, Albert G. Nulsen, Sr., and against R. L. Polk & Company and Norman L. Nulsen, and assessed plaintiff's actual damages at $ 9000, but did not find punitive damages. R. L. Polk & Company and Norman L. Nulsen filed separate motions for new trial. Plaintiff filed motion for new trial as to defendant, ...