McMurry v. Martin

• Decision Date: 23 May 1887
• Citation: 26 Mo.App. 437
• Parties: ELLA G. MCMURRY AND HUSBAND, Respondents, v. GEORGE MARTIN, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 437

ELLA G. MCMURRY AND HUSBAND, Respondents, v. GEORGE MARTIN, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Holt Circuit Court, HON. H. S. KELLEY, Judge.

Reversed and remanded.

T. H PARRISH, for the appellant.

I. The court erred in admitting any evidence under the petition, and in overruling the defendant's demurrer to the evidence. The matter charged to have been published by the defendant is not libelous per se, and the case should not have been submitted to the jury. Nelson v. Musgrave, 10 Mo. 648; Babb v Ellis, 76 Mo. 457; Price v. Whitely, 50 Mo 439, 441; Legg v. Dunlavey, 80 Mo. 558, 562; Price v. Sims, 2 Harr. 417; Towns. Lib. & Slan., sect. 197; Olmstead v. Brown, 12 Barb. 662.

II. The words contained in the petition not being per se libelous, it was the duty of the plaintiffs to make them so, by the proper prefatory allegations, and, having failed to do so, they cannot recover. Bundy v. Hart, 46 Mo. 460; Legg v. Dunlavey, 80 Mo. 558, 563, and authorities there cited; Hayes v. Mitchell, 7 Black. 117; Kinyon v. Palmer, 18 Ia. 377; Towns. on Lib. & Slan., sect. 142.

III. The court erred in permitting the plaintiffs to amend their petition after the close of the testimony, and in submitting the issues to the jury on the petition as amended. (a ) The words set out in the amendment are not per se libelous, and, therefore, not actionable. (b ) The said amendment changed the cause of action, and tendered new issues, which the defendant had no opportunity to meet. Amendments changing the cause of action, or (which is the same thing) the issues which the defendant must meet by testimony, or suffer defeat, should not be allowed. 1 Rev. Stat., p. 610, sect. 3567; Gaston v. Canada, 39 Mo. 357, 64, 65; Gibson et al. v. Steamboat, 40 Mo. 253; Irwin v. Giles, 28 Mo. 576, 578; Parker v. Rhodes, 79 Mo. 88, 92; Fields v. Maloney, 78 Mo. 172, and authorities cited; Glass v. Gelvin, 80 Mo. 297, 302.

IV. It is useless to cite authorities that instructions not predicated on the facts are erroneous. They virtually told the jury that it was their duty to find for the plaintiff, and that the facts stated should be considered in mitigation of damages; i. e., she was damaged, and, when the jury went to consider her damage, they might take into consideration her reputation, etc. Specially is this true of numbers four and five. The instructions ought to have told the jury that, if they found for the plaintiff, then the facts stated should be taken into consideration.

CROSBY, RUSK, and STRONG, for the respondents.

I. It was properly left to the jury to say what the letter contained. None of the witnesses remembered the entire contents of the letter, and did not wholly agree as to what they did remember.

II. If defendant had claimed that the letter contained any " antidote" not set forth in the petition, a motion to set out the entire letter would have been proper, but no such claim, or motion, was made.

III. It was for the jury to say, not only what the publication was, but, also, whether it was libelous or not. Towns. on Lib. & Slan., sect. 286; Snyder v. Andrews, 6 Barb. 43; Van Vactor v. Walkup, 46 Cal. 124; Odgers on Lib. & Slan. star page 94. The constitution of the state of Missouri declares that " the jury, under the direction of the court, shall determine the law and the fact. " Art. 2, sect. 14. This section applies to civil, as well as criminal, prosecutions. The words of the court in State v. Goold (62 Me. 509), are in point: " While, therefore, it is undoubtedly true that the question of libel, or no libel, is purely a question of law, we cannot doubt that it is the province of the jury in this state, by virtue of the constitutional provision referred to, to answer it." Section 288 of Townshend on Slander and Libel, cited by appellant, does not support his position, but merely states that the court should determine what constitutes privilege, when that defence is pleaded.

IV. The direction of the court that, what would " tend to bring her into disrepute, ridicule, or contempt, or disgrace," would be a libel on the female plaintiff, if not justified nor excused, was in accordance with the law, and followed the definition quoted and approved in Nelson v. Musgrave (10 Mo. 648), to-wit: " Any malicious printed slander which tends to expose a man to ridicule, contempt, hatred, or degradation, is a libel; " also that quoted and approved in Hermann v. Bradstreet Co. (19 Mo.App. 231), to-wit: " Any printed publication that tends to bring a man into disrepute, ridicule, or contempt, is a libel in a legal sense." 2 Kent's Com. 17; Rice v. Simmons, 2 Harr. 417. That words of a similar import, or the same words, when spoken, would not be actionable is no argument against their being libelous. Nelson v. Musgrave, 10 Mo. 648.

V. Prefatory allegations of extrinsic matters and facts are necessary only when the words complained of, " do not of themselves convey the meaning which the plaintiff would attribute to them, and such meaning only results from some extrinsic matter of fact." Legg v. Dunleavy, 80 Mo. 564. No prefatory allegations would render the tendency and intention of defendant's letter plainer than appears from the contents themselves.

VI. The amendment introduced no new cause of action, and did " not change substantially the claim."

VII. If defendant objected to submitting to the jury all the publication charged, on the ground that parts of it were not libelous, he should have moved the court to rule plaintiffs to specify upon what particular part or parts they relied as being libelous. Not doing so, the question of what was libelous was properly left to the jury. Boogher v. Knapp, 76 Mo. 457.

ELLISON J.

This is an action for libel in which it is alleged that " defendant composed, dictated, wrote, and published, and caused, procured, and requested to be written and published of, and concerning, the female plaintiff, the following false, slanderous, and libelous words, that is to say ‘ I received a letter from old Mrs. McMurry.’ ‘ She is like an old sheep and has twins at every litter.’ ‘ She...