Meriwether v. Publishers: George Knapp & Co.

97 S.W. 257, 120 Mo. App. 354, 1906 Mo. App. LEXIS 404

• Court: Missouri Court of Appeals
• Decided: June 5, 1906
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts).

1. One of the assignments of error is the admission in evidence of publications antedating the publishing of the article sued on. Evidence within the allegations of the petition was competent, whether it related to matters which transpired prior or subsequent to the transaction forming the foundation of the suit. It is alleged in the petition, substantially, that prior to the publication of the libel, the defendant had published in its newspaper, articles denunciatory of Edward Butler, holding him up to the public as a criminal, etc., and had persistently advertised Butler as the synonym of all that was vile, dishonest, corrupt and criminal, and then published the libel, in which plaintiff is alleged to be a co-worker with Butler for all purposes of practical politics. Fairly construed, the petition states that defendant, by its publications, first blackened the personal and political character of Edward Butler and then, in the publication sued on, characterized the plaintiff as a co-worker with Butler and classed him as being on the same moral plane in political matters. If Butler had not been denounced and held up to public scorn by the defendant, to charge the plaintiff with working with him in politics would not be a libel; but if Butler’s character is as bad as the petition alleged the defendant charged it to be by its publications, to be associated with him in political work, or otherwise, ’would be disgraceful, and the charge that plaintiff was associated with him in political work, would tend to blacken the character of plaintiff. For these reasons, we think the publications were within the allegations of the petition and were necessary evidence to make out plaintiff’s case. The point is also made, that they were not admissible for another and further reason, that is, that there is no allegation in the petition that Butler was a corrupt man, or that he was believed to be so. It is not alleged that Butler was, in fact, corrupt, or generally believed to be corrupt, nor was there any evidence introduced in respect to his character.. It is alleged that he was held up by the defendant’s newspaper (shown by the evidence to have a daily circulation of over one hundred and fourteen thousand copies) to be a corrupt man, and in some of the articles published by defendant, was denounced as vile, dishonest, corrupt and criminal. It is a true saying, that public opinion, both as to men and measures, is largely moulded by the public press; and under the pleadings, it was not so much a question whether or not Butler was in fact a bad man, as 'whether it was, under ■ the circumstances, libelous to charge plaintiff with being a co-worker of his in political matters; and we think it was a 'question for the jury to determine whether or not the plaintiff was slandered by being published as an ally and co-worker with Butler in political matters.

2. The court instructed the jury, that plaintiff’s letter to the defendant, copied in the petition, which defendant refused to publish and which it denounced as false in the alleged libel, was in fact false so far as it related to the Supreme Court. Defendant invokes the maxim, “Falsus in uno, falsus in omnibus/’ and contends that its instruction, in the nature of a demurrer to plaintiff’s evidence (asked at the close of the case) should have been given. It seems that plaintiff’s letter was provoked by the charge, that he and Butler were conspiring and planning together to fix up fusion tickets. Butler had conferred with plaintiff with a view of getting the democratic candidates for judges.of the Supreme Court oh the ticket of the Public Ownership party, and the letter was written for the purpose Of correcting a seemingly erroneous impression, communicated to the defendant in regard to this conference. What is said in the letter about the Supreme Court was an expression of an opinion concerning that court, entertained by the writer and his co-managers of the Public Ownership campaign, and given as a reason for objecting to placing the democratic candidates on the Public Ownership ticket. It was a statement intended to controvert or correct the notion that plaintiff and Butler were working together to fix up fusion tickets. It was an argument based upon false premises, resorted to, not for the purpose of making a direct charge or corruption against the Supreme Court, but for the purposes of dispelling the belief that plaintiff and Butler were working together for the purpose of defeating the- democratic party. The unjust and false criticism of the Supreme Court was not the principal matter under discussion; it was but an incident, and was brought into the discussion for the purpose of refuting the charge, that plaintiff and Butler were working together and with the common object, to defeat the Democratic party. The defendant was not only justified, but it was its duty to the public to denounce, as it did, the criticism as false, and the trial court very properly instructed the jury to the same effect. But it cannot be held, as a matter of law, that because the plaintiff entertained and expressed a false opinion in regard to the integrity of the Supreme Court, that his entire letter is a tissue of falsehoods, or that he was conspiring with Butler and the Republican press and politicians to defeat the Democratic party, as charged in the libel. “Falsus in uno, falsus in omnibus,” is but a legal maxim, not an inflexible rule of evidence; and in practice, its application is delegated to the jury under appropriate instructions; and we think the question, whether or not the letter or the libel spoke the truth in regard, to the principal matters in controversy, was for the jury.

“The truth, Avhen relied on in justification of libel or slander, must, to constitute a complete defense, be as broad as the defamatory accusation, and so the proof of the truth of a part only of a charge will not amount to a complete defense.” [18 Am. and Eng. Ency. of LaAV, p. 1070.] Therefore, it was proper for the court to give the following instruction:

“4. The jury are instructed in this case the defendant pleads justification; that is, it declares the statements contained in the publication complained of are true of and concerning the plaintiff. Under this plea it is defendant’s duty to prove the truth of the statements in the publicaton complained of in plaintiff’s petition. And it is not sufficient for defendant to prove the truth of merely a portion of the statements contained in the publication complained of. Even though the defendant proved the truth of a portion of said publication, yet your verdict should be against the defendant’s plea of justification if you find from the evidence that it has failed to prove any statement in the publication complained of, providing such statement is found by you from the evidence to be false and a libel upon plaintiff.”

3. The court gave the following instruction on the measure of damages:

“5. The jury are instructed, if your verdict is for the plaintiff, you will assess his compensatory damages at such sum as, from the evidence and under the instructions, you believe will fairly compensate him for the injury, if any, he has sustained by reason of said publication, and in determining what is such fair compensation you may take into consideration the extent of said circulation of defendant’s newspaper at the time of said publication, as shown by the evidence the general character of the publication and the probable effect, if any, of the said publication upon the reputation of the plaintiff, considering his standing and repute in the community at, or prior to September 27, 1902, as shown by the evidence; the mortification, if any, to his feelings which plaintiff may have suffered by reason of the publication, the distress of mind, if any, which he may have suffered on account thereof; and considering all these matters, you may assess the compensatory damages of the plaintiff at such sum as in your opinion will be a fair compensation to him for the injury, if any, you believe he has suffered from the publication of said article, such sum,' however, not to exceed the amount sued for on the score of compensatory damages, to-wit, $5,000.”

Substantially, the libel branded plaintiff as a liar, as a trickster and an ally of Butler. Defendant contends that the charges are distinct, and one or all may be triie, and if one or more are true, defendant is not liable on them, and for this reason the instruction on the measure of damages, authorizing the jury to find damages for the publication as a whole, though part of it might be true, is erroneous. We do not think this criticism of the instruction is just. Reading the above instructions together, it seems to us the jury could not have been so obtuse as not to see that the damges they were authorized to award were to compensate plaintiff for the injury caused by so much of the publication as they found to be both false and libelous. We think also, that if defendant thought it worth while to specially direct the jury in respect to this matter, and if it desired the benefit of the mitigating circumstances in evidence to reduce the damages, it should have requested appropriate instructions. It was not the duty of the court to give such instructions unless requested to do so. [Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668 (disapproving Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020, cited and relied on by defendant.)]

4. The jury were instructed in respect to exemplary damages and in respect to the form of their verdict as follows:

“If the jury find in favor of the plaintiff for actual damages only, the verdict may be in the following form, to-wit:

“We, the jury, find in favor of plaintiff for actual damages, and we assess the amount of his recovery at (here insert the amount agreed upon).

“If the jury find in favor of the plaintiff for actual damages, and also for punitive damages, the verdict may be in the following form, to-wit:

“We, the jury find in favor of the plaintiff for actual damages, and assess the amount of his recovery at (here insert the amount agreed upon).

“And we further find in favor of plaintiff for punitive damages, and we assess the amount of his recovery at (here insert the amount agreed upon).”

The verdict returned is as follows:

“We tbe jury find in favor of tbe plaintiff for actual damages, and we assess the amount of bis recovery at $5,000.

[(Signed) William Rinaman,

“Foreman.”

Under tbe above instruction there is no room to draw tbe conclusion that tbe jury may have included punitive damages in their verdict.

5. Tbe defendant asked tbe following instruction:

“18. Contributions may properly be made by any person to a political campaign fund, but they should be made openly, that tbe public may know what are tbe various influences supporting a candidate; and if tbe jury find from tbe evidence that plaintiff, while a candidate for tbe office of mayor on a Public Ownership platform, and as representing tbe Public Ownership party, received financial contributions in aid of bis campaign from Republicans who were supporting a candidate of their own party, and who were contributing to plaintiff’s campaign fund, because they believed that bis candidacy was in its effect detrimental to that of tbe Democratic nominee, and plaintiff did not publicly acknowledge such contributions and such relation with the Republicans, then the defendant bad a right to characterize him as a trickster in politics.”

Tbe court struck out the words “characterize him as a trickster in politics,” and inserted in lieu thereof tbe words, “criticise plaintiff therefor,” and as thus modified gave tbe instruction.

In State v. Smith, 82 Minn. 342, trick is defined as a “sly, dexterous, ingenious procedure fitted to puzzle or amuse, and is synonymous with strategy, wile, fraud, cheat, deception or delusion.” Webster defines trick, “to deceive by cunning or to impose on, to defraud, to cheat.”

The evidence shows that after plaintiff was defeated for the nomination for mayor in the Democratic conyention of 1897, and became an independent candidate, the Republican city campaign committee contributed oyer three thousand dollars to his campaign fund. This contribution was reported by the treasurer of the Public Ownership party as having been “contributed by people at mass meeting.” The report was misleading and intended to deceive, and hence the transaction may be said to come within the definition of a trick; but Meriwether did not make the report and we doubt if it would have been proper for the court to have declared, as a matter of law that it was a trick. The modification of the instruction justified criticism of the transaction but left the nature, extent and severity of the criticism to the judgment of the jury. Under the evidence and the instructions, the jury might very well have found that defendant was justified in characterizing the plaintiff as a trickster, and we see no substantial objection to the modification of the instruction, especially in view of the fact that the jury was the judge of both the law and evidence in the case.

6. Defendant asked the following instruction:

“13. If the jury find from the evidence that, at any time prior to the time of the publication complained of, the plaintiff had been associated with Edward Butler in the conduct of politics, and had accepted the aid and co-operation and financial support of the said Butler in the attainment of his political purposes, then the defendant had the right to criticise plaintiff as an ally and associate of the said Butler.”

The court added the following proviso and gave the instruction as modified:

“Provided that they further believe from the evidence that the defendant, in good faith, believed that such association continued and existed at the time su.ch criticism was made.”

The libel charged a present alliance between plaintiff and Butler; for this reason, we thing the modification of the instruction was proper.

7. The court refused the following instructions asked by the defendant:

“11. You are instructed that the agreement made by Charles E. Carroll, John B. Owen and Charles F. Wenneker upon one side, and Lee Meriwether, William A. Brandenberger and Frank S. Kowalski upon the other side, is, by its terms, opposed to public policy and to public law, and corrupt in its tendencies, and it was the right and privilege of the defendant to comment upon it and upon all who had part in it in appropriate terms, and to criticise the agreement itself as corrupt, and the parties to it as employing improper methods in the conduct of politics.

“12. As the agreement between Charles E. Carroll and his associates on the one side, and Lee Meriwether and his associates on the other, was in itself a corrupt agreement, and inasmuch as that agreement provided for making concessions to other elements or parties in St. Louis who would join with the Public Ownership and Republican parties the defendant was warranted in believing, if it did so believe, that the Butler element, if an element so-called existed, was intended thereby, and defendant had the right to comment as it did upon the plaintiff in association with the said Butler, and was not guilty of publishing a libel in so doing.”

Of its own motion, the court gave the following in lieu of the above refused instructions:

“If the jury believe from the evidence that the defendant in good faith regarded the agreement made by Charles E. Carroll, John B. Owen and Charles F. Wenneker, upon one side, and Lee Meriwether, William A. Brandenberger, and Frank S. Kowalski, upon the other side, as opposed to public policy, to public law, and to be corrupt in its tendencies, then it was the right and privilege of defendant to comment upon such agreement, and upon all who had part in it, in appropriate terms, and to criticise the agreement itself as corrupt, and the parties to it as employing improper methods in the conduct of politics.

“12. If the jury believe from the evidence that the defendant, in good faith, regarded the agreement made by Charles E. Carroll, John B. Owen and Charles F. Wenneker, upon one side, and Lee Meriwether, William A. Brandenberger and Frank S. Kowalski, upon the other side, as opposed to public policy and as corrupt, and insomuch as that agreement provided for making concessions to other elements or parties in St. Louis, who would join with the Public Ownership and Bepublican parties, that the defendant believed, and was warranted in believing, that the Butler element (if any element so-called existed) was intended thereby, then the defendant had a right to comment upon such agreement and upon plaintiff as being in association with said Butler element.”

Fusion of minority parties, for the purpose of defeating a dominant party, is common practice in this country, is not immoral in itself, or opposed to public policy, and is, under some circumstances, commendable. The chief complaint made by plaintiff in his petition and on his argument, is that the defendant yoked him up with Butler to do political work. The republicans, who were parties to the Carroll-Meriwether fusion agreement, testified that the five justices of the peace and five constables, to be named by some other party, were to be named by the Butler element. If this was the understanding, then plaintiff agreed to be yoked up with Butler in political work, and from his own standpoint, the agreement was corrupt. But he testifies that no one in the conference mentioned the Butler element, except Carroll, and that fusion with the Socialist and Allied parties was discussed by him; that he had these parties in mind and not the Butler element. There is no evidence tending to show that fusion with the Socialist and Allied parties, or both, would have been necessarily corrupt, under the circumstances, and we think, under all the evidence, it was for the jury to determine whether or not the agreement was in fact corrupt. The court’s instructions fairly submitted this issue to the jury.

8. Defendant complains that plaintiff’s fourth instruction supra, is too narrow, and does not fully submit the issue of justification. The instruction authorized a verdict for the plaintiff, if the jury found any portion of the publication to be both untrue and libelous. In a publication, if a number of truths should be stated about a named individual, which would be libelous if untrue, and in the same article a false and slanderous statement about the person should appear, we cannot see upon what ground he could be denied the right to recover on account of the publication of the false and slanderous matter. The false matter would be none the less libelous for having appeared in the same article with the truthful statements. The virus of the falsehood would not be extracted by being associated with truth. A falsehood may be concealed by a veneering of truth, but when uncovered it is more hideous than if its face had never been hidden. And it seems to us, that if any part of the publication is libelous and untrue, plaintiff was entitled to recover; if not then a publisher of a newspaper may publish a libel of Avhom he will and escape liability by appending a modicum of truth to the article.

9. Defendant contends the damages are excessive. The assessment of damages in this character of cases is peculiarly within the discretion of the jury, and courts will not interfere Avith their award, unless the amount is so excessive as to satisfy the court that the jury Avas influenced by passion or prejudice. The sum assessed by the jury does not appear to us to be so excessive as to indicate that the jury were influenced by either passion or prejudice.

10. The evidence and affidavits in support of the charge that plaintiff’s mother and father tampered with one of the jurors, it seems to us, falls far short of establishing the charge. The conversation between them and the juror was casually introduced by the plaintiff’s mother, in total ignorance at the time the person she was talking to was a juror. What was said was not calculated to influence the juryman in the least. He swore he was not influenced in making up his verdict, by anything that was said, and we cannot believe that he was.

No reversible error appearing, the judgment is affirmed.

All concur.