State v. Falkenhainer

• Decision Date: 30 April 1921
• Docket Number: No. 22578.,22578.
• Citation: 288 Mo. 20,231 S.W. 257
• Parties: STATE ex rel. TUNE et al. v. FALKENHAINER et al., Judges.
• Court: Missouri Supreme Court

231 S.W. 257

288 Mo. 20

STATE ex rel. TUNE et al. v. FALKENHAINER et al., Judges.

No. 22578.

Supreme Court of Missouri, in Banc.

April 30, 1921.

Rehearing Denied May 24, 1921.

Proceeding for writ of prohibition by the State of Missouri, on the relation of Louis T. Tune and others, constituting the Board of Complaint of the City of St. Louis, against Victor H. Falkenhainer and another, Judges. Writ denied.

See, also, 191 S. W. 1078; 273 Mo. 255, 200 S. W. 1062; 199 Mo. App. 404, 203 S. W. 465.

Everett Paul Griffin, of St. Louis (Charles H. Danes, City Counselor, of St. Louis, of counsel), for relators.

Douglas W. Robert and Charles Claflin Allen, both of St. Louis, for respondents.

HIGBEE, J.

This is an original proceeding for a writ of prohibition to prohibit the respondents, judges of the circuit court of the city of St. Louis from enforcing a subpœna duces tecum requiring Marsh to produce a letter addressed to the complaint board on the ground of privilege.

The charter of the city of St. Louis provides that the complaint board shall receive "complaints against any department, board division, officer, or employé of the city, or against any public utility corporation, and examine the same. It shall recommend to the proper city or state authorities any action deemed advisable." The relators are the members and secretary of this board. The petition alleges that Samuel J. Douglas is an employé of the city of St. Louis in the department of streets and sewers; that Douglas brought an action in the circuit court against Lawrence McDaniel and George S. Thomas for libel, based on a letter written by them November 20, 1016, making certain false charges against him, in this, that he uses vile and obscene language to women and children who pass him; that lie curses and swears at children, etc., to his damage in the sum of $50,000; that Douglas brought an action of mandamus against relators in the St. Louis Court of Appeals to obtain a copy of said letter for his use in the preparation and as evidence in the trial of said action, which is still pending in the said circuit court; that the Court of Appeals held that said letter was privileged, and that the court could not compel its production as evidence upon the trial of said cause; that thereafter said Douglas sued out a writ of certiorari in the Supreme Court, alleging that the decision of the Court of Appeals was in conflict with decisions of the Supreme Court, and that the Supreme Court held that said decision was not in conflict with any of its prior decisions and quashed the writ of certiorari; that on March 20, 1920, Hon. Victor H. Falkenhainer, judge of said circuit court, presiding in division 1 of said court, on the application of said Douglas issued a subpœna duces tecum directed to relator Marsh, secretary of said complaint board, to produce said letter at the trial of said cause; that on May 20, 1920, relators filed a motion to quash said subpoena, citing said decision of the Court of Appeals holding said letter to be a privileged communication, but said judge overruled said motion; that said Marsh is ready and willing to appear in said court in response to said subpœna, but is unwilling to produce said letter because the Court of Appeals held it to be a privileged communication; that Hon. Karl Kimmel is now presiding judge in division I of said circuit court; that judge Falkenhainer is now presiding judge in division 13 of said court; and that Judge Kimmel threatens to enforce said subpoena and compel the production of said letter on the trial of said cause, all of which is contrary to the decision of said Court of Appeals.

The respondents' return to the preliminary rule sets out the amended petition filed in the Douglas libel action and the subpœna duces tecum, and avers that in the proceedings in the Court of Appeals (State ex rel. Douglas v. Tune, 199 Mo. App. 404, 203 S. W. 465) and in this court (State ex rel. Douglas v. Reynolds, 276 Mo. 688, 200 S. W. 100) no showing was made that the libel was predicated upon a letter that was maliciously written, as was averred in the amended petition in the libel suit, and that said court properly overruled the motion to quash said subpoena; that thereafter Judge Falkenhainer was transferred to division 13 of said court, and Judge Kimmel was assigned to division 1 thereof; that the acts done by respondents and each of them respectively were done and intended to be done in discharge of their official duties, and that said subpoena was issued for the reason that the suit was an action for libel on a petition which averred that the letter mentioned in said subpœna was written falsely and maliciously by defendants, and an issue has been joined on a general denial filed by said defendants; that said action has been continued from time to time on account of the pendency of this proceeding. Wherefore they pray, etc.

Relators challenge the sufficiency of the return and move for the issuance of a peremptory writ of prohibition.

The foregoing statement, it is believed, is sufficient for the consideration of the questions arising in this cause. The facts are fully recited in the opinion of Judge Graves in State ex rel. Douglas v. Reynolds, 276 Mo. 688, 209 S. W. 100.

1. Relators charge that the circuit court exceeded its jurisdiction in issuing the subpoena to respondent Marsh to produce in court the letter on which the action was predicated, because it was held to be privileged by the Court of Appeals. The opinion of Judge Graves notes the absence of an averment in the petition for the writ of mandamus of an allegation that the letter was maliciously written.

"In other words, as far as the petition before us for review is concerned, we must presume, under the law, that the letter was sent in good faith and without malice." (276 Mo. 694, 209 S. W. 101.)

On page 695 of 276 Mo., on page 102 of 209 S. W., Judge Graves, speaking for the court in bank, said:

"The petition for mandamus shows the board to which it was addressed was at least a governmental agency provided for the good of the city government. Complaints made to such a body, at the very least, must be held to be qualifiedly privileged, and the qualified privilege cannot he destroyed without a charge of malice. To destroy the patent qualified privilege of this letter, absence of good faith, and presence of malice, should have been charged. No such charge is made and upon this theory alone the Court of Appeals reached a right result In refusing the writ."

There can be no doubt that the letter in question is qualifiedly privileged.

Finley v. Steele, 159 Mo. 200, 60 S. W. 108, 52 L. B. A. 852, was an action for libel based on a letter written by the members of a school board to the county superintendent, making accusations against Miss Finley, the teacher of the school, and asking him to revoke her certificate. Judge Burgess reviewed many cases. At the foot of page 305 of 159 Mo., at page 109 of 60 S. W. (52 L. R. A. 852), the learned judge said:

"It is announced in Marks v. Baker, 28 Minn. 162, that `the rule is that a communication made in good faith, upon any subject-matter in which the party communicating has an interest or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice * * * is cast upon the person claiming to be defamed.'

"`Malice in such case is not shown by the mere fact of the falsity of the publication.' Henry v. Moberly, 6 Ind. App. 490; Stewart v. Hall, 83 Ky. 375."

Again, on page 307 of 159 Mo., on page 110 of 60 S. W. (52 L. R. A. 852), it was said:

"They not only had an interest in regard to the way in which the school was being conducted, but in preferring the charges against the plaintiff were simply discharging their duty as members of the school board, and it makes no difference that the exact words of the statute were not used, or that some word not embraced therein was used, the purpose and intent was the same. There was no actual malice proven, and the use of such word or words did not take away the privileged character of the communication. Intent makes the libel in such circumstances.

"The communication was made on a proper occasion, from a proper motive, and was based upon a reasonable cause. It was made in apparent good faith, and under these circumstances the law does not imply malice—and as there was no proof of express malice the plaintiff was not entitled to recover. The judgment is affirmed."

The ruling in Finley v. Steele has been frequently approved. See Peak v. Taubman, 251 Mo. 390, 418, 434, et seq., 158 S. W. 656.

The rule permitting criticism of public officers is the same as that which governs the criticism of all matters of public interest, such as public institutions, places of entertainment, books, pictures, and other matters, and under it it is permissible to criticize fairly and without malice or view to injure or prejudice in the eyes of the public. McClung v. Star Chronicle Pub. Co., 274 Mo. 194, 202 S. W. 571. But the qualified privilege to criticize public acts of public officials does not exist where defendant was actuated by malice. McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S. W. 193. See, also, Diener v. Publishing Co., 230 Mo. 613, 132 S. W. 1143, 33 L. R. A. (N. S.) 216; Id., 232 Mo. 416, 135 S. W. 6; Ex parte Harrison, 212 Mo. 88, loc. cit. 92, 110 S. W. 709, 16 L. R. A. (N. S.) 950, 126 Am. St. Rep. 557. 15 Ann. Cas. 1; Cornelius v. Cornelius, 233 Mo. 1, loc cit. 30, 135 S. W. 65; Tiles v. Publishing Co., 241 Mo. 609 (syl. 6), 145 S. W. 1143; Link v. Hamlin, 270 Mo. 319, loc. cit. 336, 193 S. W. 587; Yancey v. Commonwealth, 135 Ky. 207, 122 S. W. 123, 25 L. R. A. (N. S.) 455, and annotations.

McKee v. Hughes, 133 Tenn. 455, 181 S. W. 930, L. R. A. 1916D, 391, Ann. Cas. 1918A, 459, was an action for libel on a petition to revoke...