Wolf v. Harris
| Decision Date | 31 March 1916 |
| Citation | 184 S.W. 1139,267 Mo. 405 |
| Parties | I. J. WOLF v. HENRY HARRIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. A. Powell, Judge.
Reversed.
T. A Frank Jones for appellant.
(1) Under the Constitution defendant had the right to make the publications complained of, being responsible for all abuse of that liberty. Mo. Constitution, art. 2, sec. 14. (2) Under the allegations of the petition plaintiff had no right to an injunction against the defendant. Life Assn. v Boogher, 3 Mo.App. 173; Flint v. Smoke Burner Co., 110 Mo. 492.
Kimbrell & White for respondent.
Respondent herein, who was plaintiff below, brought this action in equity in the circuit court of Jackson County to perpetually restrain and enjoin defendant from publishing certain alleged false, defamatory and libelous statements concerning respondent. From a judgment for plaintiff enjoining defendant as prayed, the latter appealed.
The case turns on the application to plaintiff's petition of section 14 of article 2 of the Constitution of Missouri, which section is pleaded by defendant in his answer. This petition is lengthy and we do not deem it necessary to set it out in haec verba, but will content ourselves with stating the substance of it. It may help toward an understanding of the case to say that the petition sounds in equity only and contains but one count.
The plaintiff, after averring that he is a practicing physician and surgeon in Kansas City, Missouri, and that he has been such for nearly a quarter of a century, and reciting the extent of his studies, practice and experience, avers that he was called to treat a young daughter of defendant, and though exercising in that behalf the utmost care and skill, the patient without fault of plaintiff, died; that thereafter defendant demanded of plaintiff in divers ways, and at divers times and places the sum of $ 10,000 because of the death of said patient, and threatened that unless said sum was paid, defendant by circulating charges of criminal negligence of plaintiff in connection with the death of the patient aforesaid, would destroy the reputation, business and professional standing and income of plaintiff, which plaintiff avers to be lucrative and large, and that in pursuance of said threats defendant circulated and published more than a thousand copies of a certain false and libelous writing concerning plaintiff. This writing is set out in the petition, and is if untrue manifestly libelous.
It is further alleged that thereafter defendant with the same malicious intent and design, published and circulated among plaintiff's patients, friends and acquaintances, more than five thousand copies of a certain pamphlet, in which were repeated the same, or similar, false, defamatory and libelous statements, and that subsequently defendant procured the printing of a large placard, likewise containing false and libelous statements concerning the plaintiff, and that all this was done for the purpose of wrongfully extorting from plaintiff the said sum of $ 10,000.
Plaintiff further alleged that all charges so made by defendant touching the wrong doing and alleged malpractice of plaintiff were false and were known by defendant to be false, and that they were made and circulated solely to gratify the spite and ill will of defendant against plaintiff and for the purpose of extorting money from plaintiff.
It is further alleged that defendant threatens to continue and until and unless restrained and enjoined will continue, to print, publish and circulate the same, or similar libelous statements touching plaintiff; that if plaintiff has any property the same is so wholly encumbered and covered up and so insufficient in quantity and value that plaintiff would be unable to collect any judgment which might be rendered in his favor as damages in any action at law that plaintiff might bring on account of the publication of said libelous statements; that if he were to sue defendant on each successive libelous publication he would be compelled to bring a multiplicity of actions at law, at great cost, inconvenience and expense and that said actions would be so numerous and would for that so encumber the dockets of the courts of Jackson County as to obstruct the administration of justice therein, and so by reason of the premises plaintiff avers that he has no adequate remedy at law and is compelled to resort to his action in equity.
The prayer for relief is substantially followed in the decree as first above stated; that is to say, that defendant be perpetually restrained and enjoined from printing or publishing or attempting so to do, the false, defamatory and libelous statements aforesaid, or any others of like or similar import.
As stated, defendant in his answer invoked the provisions of section 14 of article 2 of the Constitution of Missouri, and denied that when measured thereby, plaintiff's petition stated any cause of action; denied that defendant is insolvent, but averred his solvency, and being solvent averred that plaintiff had an adequate remedy by an action at law for damages; further answering defendant pleaded the truth of the statements made by him; that is to say, in substance admitting publication, but averring justification.
The case went first to the Kansas City Court of Appeals, but on account of the invocation of the Constitution by defendant in his answer, the latter court, upon motion, sent the case up to us.
Such further facts as will suffice to make the points clear will be found in the opinion.
OPINION.As a foreword we may say that the abstract and the brief in this case upon appellant's part (we have not been favored with a brief from respondent) are exceedingly meagre and are not such as our rules require. But since the case comes here on transfer by order of a Court of Appeals, on account of a constitutional question, the rule in such case is not to scrutinize too closely the abstract of the record, lest an appellant caught unwittingly between their rules and ours should be pinched out of any appeal at all.
There are set forth in the abstract the petition in full and the answer of ...
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