Appeal from circuit court, St. Louis county; J. W. McElhinney, Judge.
Action by Theodore Weber against Dennis Lane and others. Judgment for plaintiff. Defendants appeal. Reversed.
Omitting caption, the petition is as follows: "Plaintiff, for this, his amended petition and cause of action, herein filed by leave of court first had and obtained, states: That on the 1st day of November, 1901, and at all times hereinafter stated, the city of Kirkwood, St. Louis county, Missouri, was a duly incorporated city of the fourth class under the laws of the state of Missouri, with such powers and authority only as in it vested by the laws of said state. That at the time aforesaid plaintiff was, as he has been for thirty years last past and still is, a citizen of said city of Kirkwood, and as such at the date first aforesaid was the head of a family, consisting of wife, sons, and a grown and younger daughters, and engaged in said city, as he has been for many years and still is, in the retail grocery and general merchandising business, and also, since on or about the 4th day of July, 1901, in that of a lawful licensed state, county, and city dramshop keeper, in the building and premises
occupied by him and his family residence; and for his success in said avocations he was and is greatly dependent upon the good will, respect, esteem, and patronage of the citizens of said city of Kirkwood and its vicinity, and has always conducted such avocations and deported himself, as have his family, as to entitle himself and family to said good will, respect, esteem, and patronage, and they have enjoyed the same. And plaintiff states he has ever been in every respect a lawabiding citizen, and never was charged with or suspected of being guilty of any violation of the law or the law of said city or the state, or of being deserving of, or a lawful subject for, special police surveillance, until, as hereinafter stated, plaintiff, complaining, states that defendants were on or about the 11th day of November, 1901, severally members of the board of aldermen of said city of Kirkwood, and constituted a majority of said board, and as such and that whilst said board of aldermen had only such judicial supervisory control over plaintiff's conducting and management of his avocations as dramshop keeper as vested in them by the ordinances of said city, which was then that prescribed by section 13 of Ordinance No. 59 of said city, to wit: `Whenever it shall be shown to the board of aldermen upon the application of any person, that any dramshop keeper in this city has not kept at all times an orderly house, the board of aldermen may order the license of such dramshop keeper to be revoked, and from the date of such order the dramshop keeper shall be deemed to have no license, and to be without the authority of law to act as a dramshop keeper; but the dramshop keeper shall be notified in writing of such application five days before the order shall be made, and costs shall be awarded against the losing party.' Nevertheless, said defendants, well knowing their limited authority over plaintiff as such dramshop keeper, and purporting to act as the board of aldermen of the town of Kirkwood, but in fact wrongfully designing to injure plaintiff in his good name and reputation and in his said several business avocations, or in wanton disregard of the injury thereto by their so doing, received, as such board of aldermen, the following false and libelous communication, to wit: `Kirkwood, Mo., Nov. ___, 1901. To the Town Board of Kirkwood, Mo.—Honorable Sirs: Whereas, we, the respectable colored citizens of Kirkwood, Mo., see the immorality and vice that's being carried on in Theodore Weber's saloon on Main St. We would like to call your attention especially to the frequenting of this place by the young colored girls of this town, many under age. Our talking and pleading are in vain. Therefore we feel it our indispensable duty to petition you to help us suppress the one evil mentioned above, if no more. We feel that this board, composed of honorable, intelligent, respectable, honest, law-abiding citizens of this town, will do something to eradicate this awful evil, that is a disgrace to the self-respecting negro of Kirkwood. [Signed] G. S. Brooks. J. A. Mitchell [and others],' And defendants, well knowing the same to be false, and did not bear the genuine signature of any of the purported signers thereof, did thereupon, without authority in law so to do, but wrongfully, maliciously, and designedly to injure plaintiff in his good name and business as aforesaid, in open session, speak and publish the same, and, without any notice whatsoever to plaintiff, did assume jurisdiction thereof, and refer the same to defendants Dennis Lane, Charles H. Ricker, and G. J. Kendall, as a special committee of their number, for investigation and report thereupon to said board. Plaintiff states that the said Lane, Ricker, and Kendall did thereupon, well knowing they were without authority in law so to do, and for the purpose of injuring plaintiff as aforesaid, without any notice to plaintiff of their intention so to do, hold an ex parte examination of witnesses touching said communication, and did thereupon falsely, willfully, maliciously, and libelously speak and publish of plaintiff, in said subject of inquiry to said board of aldermen, in open session, by written report, as follows, to wit: `Kirkwood, Mo., Dec. 2, 1901. The Honorable Mayor and Board of Aldermen: The committee appointed to investigate the complaint made by Messrs. Mitchell, Brooks, Arnold, and others against Theodore Weber, a saloon keeper on Main street, in the city of Kirkwood, have heard the complainants, and their statements that they have no desire to injure Mr. Weber in the lawful pursuit of his business as grocer and saloon keeper, but knowing from their own observation that young colored men and girls were in the habit of congregating on his premises, and thereby exposing themselves to the temptation of drinking liquor and otherwise misbehaving themselves, and being impelled by a desire for the welfare of their race, decided to lay the matter before the proper authorities. Your committee would recommend that the city marshal be instructed to give the matter attention, and that the request of the petitioners be complied with, in suppressing the alleged offenses, and, if found to continue, that the attention of the board be again called to the matter by the marshal. Dennis Lane, Chairman.' And the said defendants, without authority of law, and knowing said report to have been made without notice to plaintiff, and was ex parte and unlawful, then and there, without notice to plaintiff, openly and publicly caused said report to be read, and publicly accepted, approved, and spread upon the record of said city; thereby charging and intending to charge plaintiff with having been guilty of keeping a disorderly and disreputable house, in violation of the laws of the state of Missouri and said city of Kirkwood in such cases
made and provided, and of being a proper person for police surveillance. Plaintiff says that said alleged offenses in said communication aforesaid were false, and maliciously charged against plaintiff, and were known so to be when received by defendants, and considered, spoken, and published by them as aforesaid. Plaintiff states, by the said act of defendants herein complained of, he has lost and been damaged in his said business avocations as aforesaid in the sum of five thousand dollars, for which sum of five thousand dollars he prays judgment against defendants herein; and plaintiff states, that by the said act of defendants herein complained of, he has been damaged in his good name and reputation in the sum of five thousand dollars, and for which said sum of five thousand dollars he prays judgment against said defendants. Wherefore plaintiff prays judgment herein against defendants in the aggregate sum of ten thousand dollars, with costs of suit."
