Wagner v. Saline County Progress Printing Co. , 45 Mo. App. 6 ( 1891 )

Ellison, J.

— This is an action for libel and resulted in a verdict and judgment for plaintiff. Defendant claims certain prejudicial errors were committed by the trial court, for which the judgment is attacked. The libel charged was published in the Saline County Progress, a newspaper published in Saline county. The article is as, follows :

“Judge J. Pecksniff Brother-in-Law (meaning the plaintiff) is at last beginning to feel the point of the Progress' pen through his prodigious pachyderm. He revealed the festering of the wound last Wednesday night in the ‘tabernacle.’ He will never forgive the Progress for showing Tip his Janus-faced hypocrisy, his Belshazzar’s feast, at Mike McGinnis’, etc. The Judge is wont, we believe, to publicly shed crocodile tears, and to roll up the whites of his eyes over poor suffering humanity in its sinful and lost condition. In this connection we recommend to the Judge’s tender and pious commiseration the poor widow, the insurance on whose husband’s life he collected many years ago. We understand she is very needy, and has judgment on him in our circuit court.”

This charge is followed by the allegation that said newspaper meant, and by said publication intended, to falsely and maliciously charge that plaintiff had, as agent of one Mrs. Crump, collected for her the insurance money on her deceased husband’s life, and wrongfully and without her consent converted it to his own use, and thereby was guilty of the crime of embezzlement. Before setting out this charge the petition alleged extrinsic matter by way of prefatory averment, in which it is stated: “That, in the year 1874, one James B. Crump died, leaving insurance on his life to the amount of about $700; payable to his widow, Mrs. A. M. Crump ; that in said year the insurance company owing said insurance sent a draft for the amount thereof,payable to Mrs. A. M. Crump, to this plaintiff to be by him delivered to her ; that plaintiff did, shortly after receipt by him of said draft, deliver the same to the said Mrs. A. M. Crump ; that the said Mrs. Crump indorsed and delivered said draft to plaintiff as her agent, with instruction to collect the same and retain out of the amount to be collected thereon the sum of $400, which, amount she desired to pay her brother, George Garrett, and which amount said George Garrett then loaned this plaintiff, and took plaintiff’s note therefor, and with the further instructions to pay one W. J. Knott out of said amount, to be collected on said draft, the sum of $150, and to pay the balance of the amount of said draft to said George Garrett; that plaintiff agreed with her to act as her agent, and to collect said draft and pay out the money as instructed by her as aforesaid; that shortly after said draft was delivered to him by said Mrs. Crump as aforesaid, the plaintiff did collect the amount thereof on said draft and pay out as directed and instructed by said Mrs. Crump as aforesaid; that afterwards plaintiff made payments on said note given by him, as aforesaid, to George Garrett, and, in the year 1877, plaintiff gave to George Garrett a renewal note for the balance of said first note, and afterwards said George Garrett gave said renewal note to his sister, Mrs. Garrett, who at that time and at the time she obtained judgment, as hereinafter stated, was a widow; that afterwards, about the -day of---, the said Mrs. Garrett ■ recovered a judgment against this plaintiff on said note so held by her, in the circuit court of Saline county, Missouri.”’

The errors complained of are: First. That the petition does not state a cause of action, in that it does not, by proper averment, connect the extrinsic facts with the publication. Second. That the publication, when connected and considered with the extrinsic matter, does not constitute the crime of embezzlement. Third. That the publication does not charge that plaintiff as agent, without consent of the widow, converted to his own use the insurance money, with intent to deprive the owner of it. We cannot allow either of these objections to prevail. While the petition could, perhaps, with some more explicitness and precision, have connected the libelous charge with the extrinsic facts, yet it cannot be said to be so defective as to fail in stating a cause of action.

The second and third objections may be considered together. The charge published when explained by, and considered with, the extrinsic facts does clearly accuse plaintiff of the crime of embezzlement. If we were to allow full scope to the argument advanced for defendant, it would lead us into holding that in order to make a good petition for a libel charging embezzlement, it would be necessary to set forth the elements of the crime with all the precision and certainty required in an indictment for the offense. It is scarcely necessary to say that this is not required. We agree with counsel that, in construing the words employed in a libelous publication, the language should be given its natural and ordinary signification. But in cases of this nature, where the words charged are connected with other facts, such facts must be considered with the charge and the natural and ordinary signification given to the whole matter thus connected. If, thus considered, a libel is not charged, the case fails. On the other hand, if a libel is charged, the case stands and must be met by the defendant.

We have not been able to see the significance to be attached to the question of demand which was referred to so frequently at the argument. A demand and refusal are not absolute requisites to the proof of embezzlement. The matter has doubtless arisen in the consideration given to the conversion which is necessary to make out embezzlement. But demand and refusal do not constitute conversion.1 It is merely evidence of .that fact. La Fayette Co. Bank v. Metcalf, 40 Mo. App. 494.

The court permitted testimony to show the understanding and meaning which the readers of the paper had of, and attached to, the publication. This was proper testimony in a case of this kind. We may concede (for present purposes) that where the words are plain and unambiguous and disconnected from outside matter which would give them a different or additional meaning, that such evidence should not be heard. But where matter is alleged, and it is shown, as in this case, that something has occurred in consequence of which the words would convey a meaning additional to that which would ordinarily be attached to them, such testimony should be heard. Townsend on Slander, sec. 384; Odgers, Libel & Slander, 538.

And, where the language may or may not impute the crime which is charged to have been imputed, such testimony is proper. Townsend on Slander, sec. 140 ; 2 Greenleaf, Ev., sec. 417 ; Nelson v. Borchenius, 52 Ill. 236 ; Knapp v. Fuller, 55 Vermont, 311. The fact as to what was intended must be ultimately determined by the jury. In the latter case cited, witnesses who had read it were permitted to state their understanding of the language used in the following publication :

“One day last week two of our citizens went to the residence of a farmer a short distance from the village on business, and on arriving there went to the door and rapped, but received no response ; they rapped a second time, and no response ; and a third time with the same result. They then opened the door and walked in, and as they did so who should emerge from the bedroom but one of our prominent officials with a. young lady of the house, who, being inquired of as to the whereabouts of members of the family, said they were all absent but her. After some conversation our gay Lothario took his leave. Query: Was said official there on probate business? Perhaps it would be in order for him to ‘rise and explain, ’ as many of our people would like to be informed.”

So far as concerns the rule of law here contended for, that article presents about the same necessity for extraneous matter and for elucidation by the understanding of readers as the one here complained of.

The instructions for either party are not fairly subject to complaint. Number 2, for plaintiff, authorized exemplary damages if the jury should believe that the publication was made with malice towards plaintiff, that is, with ill-will or hatred. Of this defendant ought not to complain ; for the clear inference from the instruction is that such damages should not be allowed without proof of express malice, whereas such proof is not requisite to the allowance of such damages. The malice implied by law is sufficient. Goetz v. Ambs, 27 Mo. 28; Buckley v. Knapp, 48 Mo. 152; Wood v. Hilbish, 23 Mo. App. 389.

This instruction, however, fails to limit, in terms, the maximum amount the jury may find to the amount named in the petition ; and from this omission defendant claims error for which the judgment should be reversed. It is certainly erroneous; but the question remains, is it such error as has worked harm or injury to the defendant? The petition claimed $10,000, and the verdict was for $2,000, from which it mathematically appears, that,, though the jury were not confined by the instruction within the limit set in the petition, they so confined themselves. We must rule this point also against the defendant. The case of Wright v. Jacobs, 61 Mo. 19, in this respect is wholly unlike the question here. In that case the petition only claimed a premium of twenty per cent, on gold in a certain transaction, while the evidence showed an agreement for thirty per cent. From the nature of the case, the verdict of the jury could not disclose which rate was allowed; and it was, therefore, held that an instruction, which did not confine the rate to that claimed in the petition was erroneous. After a full examination of all points presented we are not able to discover any sufficient reason justifying us in disturbing the judgment, and it is accordingly affirmed.

All concur.