Robyn v. the Chronicle Publishing Company
| Decision Date | 12 March 1895 |
| Citation | 30 S.W. 130,127 Mo. 385 |
| Parties | Robyn v. The Chronicle Publishing Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
John M Glover for appellant.
(1) This court will reverse the action of the court below in refusing to set aside a default when the result is a manifest injustice. Tucker v. Ins. Co., 63 Mo. 588; Judah v. Hogan, 67 Mo. 252. (2) It is of no consequence that the stipulation extending the time of pleading was not in writing, the same being admitted as clearly proved. People v. Stephens, 52 N.Y. 310; Montgomery v Ellis, 6 How. Pr. 326; Benham v. Smith, 11 Wis. 258. (3) If defendant relied upon this verbal agreement as meaning one thing and the plaintiff understood it as meaning another, it makes a case of excusable neglect. Wager v. Shickle, 3 Paige, 407; Heinemann v. Leclair, 51 N.W. 1101; Horten v. Co., 27 P. 376. (4) The default should have been set aside for violation of this agreement. Johnsen v. Sweeney, 30 P. 540. (5) An affidavit of merits showing evidence in mitigation is sufficient. Leighton v. Wood, 17 Abb. Pr. (N. Y.) 182. (6) Under the petition in the cause the plaintiff could not recover damages to him in his profession as teacher of music. Johnsen v. Robertson, 8 Porter, 486; Riley v. Smith, 1 Exch. Div. L. R. 91; Townsend on Libel and Slander [4 Ed.], n. p. 263; Wilson v. Wright, (Ohio) 651; Hallack v. Miller, 2 Bail. 632; Gundy v. Humphrey, 35 Ala. 626. (7) The inquest and judgment should therefore be set aside. R. S. 1889, sec. 2216; Stove Co. v. Grimes, 9 Neb. 123. (8) The damages are excessive. Kern v. Bridnell, 21 N.E. 664; Pratt v. Pioneer Press Co., 30 Minn. 41; Haight v. Hoyt, 50 Conn. 583; Holmes v. Holmes, 64 Ill. 294; Thomas v. Dunway, 30 Ill. 373; Freeman v. Tinsley, 50 Ill. 496.
Chester H. Krum and M. B. Jonas for respondent.
(1) The showing made by the appellant, upon which it sought to obtain a setting aside of the judgment by the trial court, was absolutely without merit and demonstrated nothing more than the grossest and most inexcusable negligence on the part of the appellant. (2) Under the petition it was entirely competent for the respondent to recover damages merely commensurate in view of his calling, and the character of the libel published concerning him. Evidence of special damage was not introduced at all. The words written and published were actionable per se, and the damages flowing therefrom were general damages. Herman v. Bradstreet Co., 19 Mo.App. 227; Noeninger v. Vogt, 88 Mo. 589. (3) The damages are not excessive.
On the third day of September, 1892, the plaintiff, by his attorney M. B. Jonas, instituted this suit in the circuit court of the city of St. Louis to recover damages of the defendant for libel in publishing a certain article in the St. Louis Chronicle, set out in the petition, and therein alleged to be false and defamatory, and the publication thereof to have been willful, wanton and malicious. On the same day summons was issued and served upon the defendant, returnable to the October term of said court. On the twenty-seventh day of October, 1892, a bond for costs was filed by the plaintiff in said suit and this was all that was done therein in said court during that term.
Afterwards, at the December term, 1892, of said court, and on the ninth day of January, 1893, the following proceedings were had in said suit in said court:
Afterwards, at the same term and on the twelfth day of January, 1893, the defendant filed the following motion, entitled as in said cause:
And at the same time also filed a motion to set aside said verdict and judgment, and for a new trial.
In support of these motions the defendant, by leave of the court, filed sundry affidavits, and the plaintiff counter affidavits. From which the following facts may be said to appear as admitted and undisputed:
On the first day of the October term of said court, Mr. Jonas received the following letter:
In answer to this letter Mr. Jonas telephoned the Chronicle office the same day in substance "that they might take all the time they desired in which to plead in the cause."
On the twenty-fourth of October, 1892, Mr. Milton McRae, the general manager and treasurer, and Mr. H. M. Young, the secretary and business manager of the Chronicle, had a conference with Mr. Jonas in regard to the case, and at their request he arranged for a meeting between them and his client at his office on the twenty-sixth of that month; and on that day Mr. McRae and Mr. Young, representing the Chronicle company, and Robyn and his attorney, Mr. Jonas, had an extended interview with reference to an adjustment of the case, which ended in nothing being agreed to. There is some conflict in the affidavits as to what took place at this interview, and as to what was said by each of the parties, which it is unnecessary to go into. Mr. Jonas admits that, at the close of the interview, Mr. McRae said, "I will see you again in a few days," to which he, Jonas, replied, "You have filed no pleadings as yet in the case, but you may take all the time you desire to plead."
Mr. W H. Little, in his affidavit for the defendant, states that in the latter part of November or the first part of December he was notified by Messrs. McRae and Young that at the conclusion of the interview, aforesaid, Mr. Jonas had told them, "that they might take all the time they pleased to plead in the cause," and further states that they soon after left the state, and the management of the case then devolved upon him, and that thereafter he was in exclusive charge of the case, and that, relying upon the promise of Jonas, aforesaid, "he did not for the defendant, nor did the defendant for itself, even employ an attorney in the cause...
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