Ritschy v. Garrels
| Decision Date | 05 July 1916 |
| Citation | 187 S.W. 1120,195 Mo.App. 670 |
| Parties | LEWIS J. RITSCHY, Respondent, v. WILLIAM L. GARRELS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
AFFIRMED.
Judgment affirmed.
T Percy Carr for appellant.
(1) Every man has a right to defend his character against false aspersion; communications made in fair self-defense are therefore privileged. Odgers on Libel and Slander (5 Ed.) pp. 291-292; Laughton v. Sodor and Man, L. R. 4 P. C. 495, 504; O'Donoghue v. Hussey, Ir. R. 5 C. L. 124; Brewer v. Chase, 121 Mich. 526, 46 L. R. A. 397; Fish v. Printing & Publishing Co., 102 Mo.App. 6; O'Connor v. Sill, 60 Mich. 175; Holmes v. Clisby, 121 Ga. 241, 104 Am. St. 103; Sheftall v. Railroad, 123 Ga. 580; Mielly v. Saule, 49 La. 800; Shepherd v. Baer, 96 Md. 152; Smurthwaite v. News Pub. Co., 124 Mich. 377; Railroad v. Floore, 42 S.W. 607; Chaffin v. Lynch, 83 Va. 106; Easley v. Moss, 9 Ala. 266; Rice v. Simmons, 2 Har. 309, 31 Am. Dec. 766; Myers v. Kaichen, 75 Mich. 272; Newell on Libel and Slander, p. 519, sec. 120; Townsend on Slander and Libel, sec. 240. (2) It was error to permit plaintiff to read in evidence only the alleged libelous excerpts without reading the whole publication. The defendant is entitled to have the whole of the alleged libel read as part of the plaintiff's case. Odgers on Libel and Slander (5 Ed.), p. 114; ibid. p. 678; Newell on Libel and Slander, p. 760; 25 Cyc. 357; 18 Halsbury's Laws of Eng., pp. 644-655, Article on Libel and Slander, sec. 1200; Cooke v. Hughes, R. & M. 112; Commonwealth v. Snelling, 32 Mass. 337. The whole article is to be read and considered together. St. James Military Academy v. Guser, 125 Mo. 526; Morehead v. Jones, 36 Am. Dec. 601, 2 B. Monroe 210. (3) It was error in instructing the jury to dwell strongly upon matter in aggravation of punitive damages and to entirely ignore the elements of mitigation. Callahan v. Ingrahm, 122 Mo. 355, 373-375. (4) The verdict is erroneous on its face, not being the verdict of the entire panel, and not being signed by all the jurors agreeing to it, in accordance with the statute. Revised Statutes, 1909, sec. 7280; Gerdner v. Bryan, 94 Mo.App. 27; Marshall v. Armstrong, 105 Mo.App. 234.
W. B. & Ford W. Thompson for respondent.
--This is a suit for damages on account of a libel. Plaintiff recovered and defendant prosecutes the appeal.
Defendant made and caused to be printed and published, about December 28, 1910, an affidavit which, through some of the statements therein, cast a reflection upon plaintiff, and hence this suit. The affidavit so made and published by defendant refers to "lying affidavits" made by plaintiff, that is, as if to charge plaintiff with having made lying affidavits. The affidavit of defendant also refers to plaintiff Ritschy as one who would readily "play the crooked game, etc."
The petition prays a recovery of $ 10,000 compensatory damages and also the same amount in punitive damages. It appears to have been drafted as in two counts, but the court treated with the averments as though both related to the same grievance. The actual damages claimed are because of the publication of the libel on December 28, while what appears to be the second count claims punitive damages on account of a libel said to have been published on December 19 of the same year. It is argued that, as the publication of each libel is a separate tort, no recovery whatever may be had as for punitive damages on account of a libel published as of that date; but obviously the argument is not well grounded, for it appears from an examination of the record that the petition was amended so as to show the punitive damages were claimed on account of a libel of December 28--that is, the same libel for which compensatory damages are claimed in the preceding paragraph of the petition. Therefore, both the compensatory damages and the punitive damages sued for relate to the same and identical publication--that is, that made on December 28. It is said the date December 19 was inadvertently inserted as a clerical error. That the petition was amended during the proceedings as above indicated, in order to make it conform to the proof, is abundantly clear from the record.
It appears that defendant's father, who was president of the Franklin Bank in St. Louis, became involved in some litigation in New Mexico over the sale of certain collateral securities held by the bank. In a proceeding to set this sale aside, plaintiff made an affidavit which was utilized in court, and the substance of plaintiff's affidavit was published in St. Louis, in connection with the court proceedings. Defendant's father thereupon set about accumulating certain facts with respect to the subject-matter, to be published in a pamphlet and issued by him to business associates and others in explanation of his conduct touching the sale. Defendant made an affidavit in respect of this matter and caused it to be printed and published in the pamphlet prepared by his father. In other words, defendant aided his father in the preparation of the pamphlet and admits in his testimony that he caused the affidavit so made by him to be printed and published at the time in question. The libel sued on relates alone to the language employed by defendant in the affidavit made and published by him in aid of his father's defense. Among other things, defendant invoked throughout the trial a qualified privilege in respect of this matter--that is to say, that he was merely defending his father. The court excluded this defense by repeated rulings and refused instructions predicated on that theory, in the view that, though defendant's father might make a defense against charges made by plaintiff against him, defendant was not privileged to do so in defense of another. It is argued the court erred in this view, but we are not so persuaded. It is said:
See, also, Fish v. St. Louis County Printing & Publishing Co., 102 Mo.App. 6, 74 S.W. 641.
But though defendant's father may have been justified in publishing a retort in defense against the aspersions against his character contained in plaintiff's affidavit filed in the litigation in New Mexico, we perceive no reason why the principle should extend to the case in hand, which is that of a libel prepared, printed and published by defendant. No authority is cited, and we are aware of none which extends the privilege invoked to the case of the son, who the jury found made a libelous attack on plaintiff. Obviously though the father were justified, the defendant...
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