People's United States Bank v. Goodwin

• Decision Date: 05 March 1912
• Citation: 149 S.W. 1148
• Parties: PEOPLE'S UNITED STATES BANK v. GOODWIN et al.
• Court: Missouri Court of Appeals

149 S.W. 1148

PEOPLE'S UNITED STATES BANK v. GOODWIN et al.

St. Louis Court of Appeals. Missouri.

March 5, 1912.

Rehearing Denied October 15, 1912.

1. APPEAL AND ERROR (§ 854—JUDGMENT— ERRONEOUS REASONS.

The appellate court need not reverse a correct judgment merely because the trial court has assigned erroneous reasons.

2. LIBEL AND SLANDER (§ 123)—DEMURRER TO EVIDENCE—CORPORATION.

Where, in a bank's action for a libel directed to its management of its business as a banking institution, there was no evidence that it was a going concern at the time of the alleged libelous publication, the court properly sustained a demurrer to plaintiff's evidence.

3. LIBEL AND SLANDER (§ 69)—RIGHT OF ACTION—INJURY TO REPUTATION.

The foundation of an action for defamation, whether libel or slander, is the injury done to reputation.

4. LIBEL AND SLANDER (§ 9)—RIGHT OF ACTION.

Defamatory words, to be actionable, must prejudice the one concerning whom they are published in the special profession or business in which he is actually engaged; it not being sufficient that the words merely be injurious to one, whatever his pursuit.

5. LIBEL AND SLANDER (§ 112)—PROOF—CORPORATION DOING BUSINESS.

In an action for libeling a bank, the mere fact that a certificate of incorporation and authority to carry on business was issued was no proof that the corporation ever engaged in the banking business, or was so engaged at a later time when the alleged libelous publication was made.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by the People's United States Bank against Russell P. Goodwin and others. From a judgment overruling a motion to set aside a nonsuit, plaintiff appeals. Affirmed.

Carter, Collins, Jones & Barker and Barclay, Fauntleroy & Cullen, all of St. Louis, for appellant. Chester H. Krum and Charles A. Routs, both of St. Louis, for respondents.

REYNOLDS, P. J.

This is an action by plaintiff, appellant here, against defendants for libel. The case was here before on appeal by plaintiff from a judgment on an involuntary nonsuit, taken by plaintiff in consequence of a ruling of the court excluding all evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. We reversed that for the reasons set out in the report of the case, as will be seen by reference to People's United States Bank v. Goodwin et al., 148 Mo. App. 364, 128 S. W. 220. On the case again reaching the circuit court, plaintiff filed an amended petition on which the case went to trial. The only amendment made was in the paragraph, found on page 369 of 148 Mo. App., on page 221 of 128 Mo., which as amended reads as follows, the words inserted being here italicized:

"That by defendants' said false, malicious and defamatory libel, charging that the funds of the bank (meaning thereby of plaintiff) were being misapplied, said defendants meant and intended thereby to allege and charge that said bank (the plaintiff) on July 6, 1905, was being improperly and illegally managed, directed and conducted in that said funds of plaintiff were then being misapplied, meaning that said funds were being misapplied by said bank to other uses and purposes than those which were lawful and proper under the charter and by-laws of said bank, and the laws of this state, then regulating and directing the management and action of said bank."

Beyond this change the amended petition was as set out in the above cited report and we refer to that, 148 Mo. App. pages 368, 369, 128 S. W. 220.

The separate answers of defendants set up that the publication complained of by plaintiff was and is part of a statement prepared in the office of the Postmaster General of the United States and issued by the Post Office Department in and concerning a certain public matter affecting the interests of the United States, to-wit, "the matter of the withdrawal of second-class mailing privilege from the Woman's Magazine and the Woman's Farm Journal, issued by the Lewis Publishing Company of St. Louis, Mo.;" that the said publication is and was a fair representation of the reasons assigned for the issuance of a fraud order which was issued by the Postmaster General of the United States on July 6, 1905, against plaintiff, by virtue of authority given in that regard to the Postmaster General by the statutes of the United States, and that said publication was by the Postmaster General of the United States as a matter of public concern and without malice and was and is privileged. Further answering, defendants deny every allegation in the amended petition contained.

Defendant Goodwin interposed a plea in abatement on the ground of nonresidence and that at the time of service in St. Louis, he was there attending court as a witness in a cause pending in the district court of the United States. This was stricken out on motion.

A reply was filed to each of these answers, denying generally the new matter, and further averring that a long time prior to the publication complained of defendants maliciously and unlawfully conspired with each other and with other persons to discredit and injure the business of Edward G. Lewis and of such companies as he was or might become interested in; that Lewis afterwards became interested in and the president of plaintiff bank and that in furtherance of the unlawful conspiracy the publication by defendants was made of and concerning plaintiff and that the publication or acts of defendants were not privileged.

We may as well state here that no attempt was made to sustain this new matter in the reply, nor any motion made against it. We therefore treat it as out of the decision of the case.

At the close of the evidence offered by plaintiff the court, at the instance of defendants, gave an instruction that plaintiff could not recover, whereupon plaintiff took a nonsuit with leave to move to set it aside. Piling this motion and that being overruled and exceptions duly saved, plaintiff has perfected its appeal to this court. In announcing his ruling on the demurrer, the learned trial judge stated that he thought it should be sustained on the ground that express malice ought to be shown under the purported admissions introduced by plaintiff.

It is an established rule of decision in this state that the appellate courts are not bound by the reasons assigned by the trial court, however learned that court may be, if, on consideration of the whole case, the appellate court is of the opinion that the conclusion arrived at or the judgment rendered is a correct one.

We think that in the case at bar the demurrer to the evidence was properly sustained, and that too, without confining our reasons to the one assigned by the learned trial court.

The foundation of an action for defamation, whether libel or slander, is the injury done to reputation. 25 Cyc. p. 249, par. A.

An accepted authority, Abbott's Trial Evidence (2d Ed.), p. 831, in paragraph 1, treating of trials of actions for slander and libel and of the usual order of proof, places as first in order plaintiff's vocation, if involved.

In the case at bar it will be noticed that the petition, while alleging the incorporation of plaintiff and that in the month of November, 1904, plaintiff began the business of banking, and is now a banking corporation under the laws of Missouri. The answers traversed these...