Reynolds v. Publishers: Geo. Knapp & Co.

• Decision Date: 21 February 1911
• Citation: 135 S.W. 103,155 Mo. App. 612
• Parties: REYNOLDS v. PUBLISHERS: GEO. KNAPP & CO.
• Court: Missouri Court of Appeals

135 S.W. 103

155 Mo. A. 612

REYNOLDS v. PUBLISHERS: GEO. KNAPP & CO.

St. Louis Court of Appeals. Missouri.

February 21, 1911.

Rehearing Denied March 7, 1911.

1. LIBEL AND SLANDER (§ 56)—JUSTIFICATION —TRUTH.

A suit for libel in charging that plaintiff committed a misdemeanor must rest not on the fact that he was not arrested and fined, but on the fact that he had not violated the law.

2. LIBEL AND SLANDER (§ 55)—JUSTIFICATION —REQUISITES.

In a suit for libel, it is sufficient to justify so much of the publication as constitutes the charge, which, if untrue, the jury may find is libelous.

3. LIBEL AND SLANDER (§ 123) — QUESTION FOR JURY.

In a suit for libel charging violation of law, what constitutes a violation is a question for the court.

4. LIBEL AND SLANDER (§ 110)—CHARGING VIOLATION OF LAW—EVIDENCE.

In a suit for libel charging commission of a misdemeanor in another state, it was error to receive evidence of statutes of that state relating to accessories, since there are no accessories to misdemeanors.

5. CRIMINAL LAW (§ 59)—ACCESSORIES—MISDEMEANORS.

At common law there are no accessories in misdemeanors; all persons concerned therein being treated as principals.

6. TRIAL (§ 412) — EVIDENCE — OBJECTIONS— WAIVER.

One does not waive objection to evidence by cross-examining or introducing countervailing testimony along the same line.

7. APPEAL AND ERROR (§ 1068)—RIGHT TO REVIEW.

Refusal to instruct that exemplary damages could not be recovered will not be reviewed on defendant's appeal, where none were awarded.

8. LIBEL AND SLANDER (§ 123)—EVIDENCE— SUFFICIENCY.

Evidence held sufficient to go to the jury in a suit for libel in charging violation of a fishing law.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by James W. Reynolds against Publishers: Geo. Knapp & Co. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. E. Campbell, Ball & Sparrow, and Lehmann & Lehmann, for appellant. J. D. Hostetter, F. J. Duvall, and E. W. Major, for respondent.

REYNOLDS, P. J.

Action by plaintiff, James W. Reynolds, respondent here, against defendant, a corporation engaged in publishing and circulating the St. Louis Republic, a daily newspaper published in St. Louis, averred to have an extensive circulation throughout this state and the United States, and a circulation of many hundred copies in Pike county, this state, in which county the venue is laid. The article, alleged to have been published "of and concerning plaintiff" in September, 1907, it is averred, purported to be a special dispatch from Colorado Springs, Colo., and was headed, "District Attorney Fined. Missouri Prosecutor Violates Colorado Fish Law," and sets out that the plaintiff, "the District Attorney at Louisiana, Mo.," came to Colorado with a party of friends and that within a week he paid the state of Colorado $131.70, "in fines for violating the game law" in Colorado; that plaintiff and his party caught 182 trout "and left them on the ground to rot. Two game wardens came along and arrested the party. All were taken before a justice of the peace. Reynolds pleaded guilty to the charge and stood the entire fine." It is averred that defendant by the publication "meant to charge, and did charge, plaintiff with being a criminal, and with having pleaded guilty to the commission of a crime, and with having been punished for the commission of a crime, by being required and compelled to pay fines amounting to the sum of $131.70." It is further averred that at the time of the publication plaintiff was prosecuting attorney of Pike county, this state, and that, by reason of the publication and circulation by defendant of the "false and malicious language and libel of and concerning" him, plaintiff had been greatly injured in his good name, fame, and reputation, and injured in the practice of law, and particularly injured, hampered, embarrassed, and handicapped in the discharge of his duties as prosecuting attorney of Pike county, and suffered by reason of diminution of public confidence in him as an honest official and one endeavoring to do his duty and has also suffered great mortification, etc. The demand is for actual and punitive damages. The answer, admitting that plaintiff is prosecuting attorney and that defendant is a corporation as alleged, denies for its first defense each and every other allegation in the petition. For a second defense the answer admits that it made the publication complained of, and avers "that said publication is true in substance and in fact." For a third defense, after admitting the publication, the answer denies ill will or malice; but avers that the item was a legitimate piece of public news and a fair account of a judicial proceeding. As a fourth defense it is denied that the publication complained of was made willfully or maliciously or with any intent to injure plaintiff. It is admitted in this fourth defense that the publication is not entirely accurate in that James W. Reynolds did not, as stated in the publication, plead guilty and submit to the fine, but the charge made in other paragraphs is repeated, and it is averred that in truth and in fact plaintiff was guilty of the offense of abandoning and permitting to go to waste a large number of fish, and that, "saving and excepting the statement of the person upon whom the fine was imposed, the publication was true in substance and in fact." The reply is a general denial. On the trial before the court and a jury a verdict was returned in favor of plaintiff for the sum of $5,000 as actual damages, nothing being awarded as punitive damages. Motions for a new trial and in arrest were duly filed, overruled, exception saved, and the case is here on the appeal of the defendant.

The publication being admitted, there was evidence on behalf of plaintiff tending to prove that he had been a guest of one of the parties who had a fishing camp in Colorado; that, when the party broke camp, they were unable to take the fish in question with them for lack of transportation; that he had nothing to do with the abandonment of them; that he was not arrested, did not plead guilty, was not fined, did not pay any fine or costs, save as attorney for one of the party who was fined. On the part of defendant there was evidence tending to show that the facts were as pleaded by it.

The real point for consideration in our opinion revolves around the action of the learned trial court in giving the third instruction at the instance of plaintiff. That instruction is as follows: "(3) The jury are instructed in this case that the defendant pleads justification; that is, it avers that the publication complained of is true in substance and in fact. Under this plea, It is defendant's duty to prove the truth of the statements in the publication complained of in plaintiff's petition. And it is not sufficient for defendant to prove the truth of merely a portion of the statements contained in the publication complained of. And, even though the defendant has proven the truth of a portion of said publication, yet your verdict should be against the defendant's plea of justification, if you find from the evidence that it has failed to prove any statement in the publication complained of, provided such statement is found by you from the evidence to be false and a libel upon plaintiff." Learned counsel for appellant contends that this is not a correct statement of the law, and that it is inconsistent with the tenth, eleventh, and twelfth instructions asked and given at the request of the defendant. The gravamen of the imputed libel in this case is the charge in the heading of the article that the "Missouri Prosecutor [referring to plaintiff] Violates Colorado Fish Law," and the further charge in the body of the article that plaintiff and the party with which he was associated had caught fish, "and left them (referring to the fish they had caught) on the ground to rot." The rest of the publication is immaterial matter. The action must rest, not on the fact that plaintiff was not arrested and fined, but on the fact that he had not violated the law. If it is true that plaintiff violated the Colorado fish and game law and that he was responsible for a...