Farley v. Evening Chronicle Publishing Co. , 113 Mo. App. 216 ( 1905 )

GOODE, J.

(after stating the facts). — The statement of what a libel is, contained in the instructions of-the trial court, was accurate as far as it went and sufficiently broad for the purpose of this case. [Nelson v. Margrave, 10 Mo. 648; McGinnis v. Knapp, 109 Mo. 131, 18 S. W. 1134.] Whether the article in question was a libel within the meaning of the word as defined by the court, was left to the jury; and it is of this ruling rather than the definition itself, that complaint is made. The defendant’s counsel insists nothing in the article was libelous — that 'it charged the Farley mentioned with doing only lawful and commendable acts; that is, assisting to move street cars for the convenience of the public against the opposition of striking crews who would obstruct transit. If this were the sum of the article, we would accept counsel’s proposition. Under our laws regulating the rights of employers and employees, it could not be held libelous to charge a person with aiding to carry on any lawful business which had been interrupted by a strike of the operatives depended on to keep it going. But the learned counsel leaves out of sight other portions of the article which are clearly'libelous in themselves and without the use of innuendoes to explain their meaning. The defendant was charged with being a foe of labor organizations, and this would tend to expose him to hatred and contempt among a goodly number of his fellow citizens, thus proving detrimental to his reputation and perhaps to his pecuniary welfare. There is an important difference between saying a person assisted an employer when the regular employees were on a strike — assisted in breaking a strike —and charging that he is a foe of organized labor. That statement, however, is not the most serious part of the article; and were there nothing more, we might think it qualified by a context tending to show the meaning was that plaintiff was a foe to labor organizations only in the sense that he contended against them when they unlawfully obstructed business. Taken in that sense the statement would not be libelous. But the person referred to was accused of having accepted money from a labor organization in the city of Cleveland, on an agreement to leave the city during a strike, and of having gone outside of the corporate limits and immediately returned. That was' dishonest conduct, and to accuse one of it would certainly tend to arouse the contempt of all classes of society. No innuendo was needed to expound the meaning of the charge ; for its libelous character and damaging influence are apparent.

The contention is preferred that none of the statements in the article is actionable per se, because none of them imputes a crime, or affects the person referred to in his occupation, or falls within any of the classes of actionable words. Therefore, it is argued that as no special damage was proved, plaintiff failed to make good his case. This argument would have merit if the action were for slander instead of libel. By statutes and decisions the law has affixed an actionable quality to certain spoken words and denied it to others. That is to say, unless the words complained of as slanderous fall within one of the classes which are made actionable in themselves, a plaintiff must prove he sustained some special damage from the utterance; whereas, if they were actionable, damage would be presumed from the proof that they were spoken and false. We do not need to be exhaustive in enumerating what spoken words are actionable per se. It is enough to say, in a general way, that they are such as impute to the person mentioned the commission of a crime, or that he is affected with! a contagious disorder which would render him obnoxious ( to society, or words tending to injure his business. But : written or printed matter which is communicated to ! third persons, stands on a different footing and is often actionable when it would not be if spoken. As intimated, if it is of a character conducive to blacken the reputation of the person referred to, or excite ridicule or wrath against him, or destroy public confidence in him, it is actionable without proof of special damage. The reason assigned for this legal difference between written and spoken language is that writing or printing injurious statements about a person, implies a deliberate purpose to do harm; Avhereas, detrimental words are often spoken thoughtlessly or in a passion. Weight is allowed also, to the more enduring character and wider vogue of published statements. Odgers, Libel & Slander (4 Ed.), p. 4.

The point in the present case which calls for discussion is not the libelous character of the published article, but Avhether it referred to the plaintiff in such' sense that the defendant is answerable in damages to him. It is contended that the article meant, not James Farley, the plaintiff, but a different individual of that name, not a resident of St. Louis, who Avas connected with the Chicago street railway strike in 1903, and with various other street railway strikes at other times and in other cities, and Avhom all the circumstances pointed^ to as the person intended, to the exclusion of the plaintiff; wherefore, it is said to be apparent that, libelous or not, the article was no libel of the plaintiff and he \ should have been denied a verdict. It will be observed that the court below left it to the jury to say whether the article and the picture published with it, referred to the plaintiff and were generally accepted and believed to mean the plaintiff by the community. If the jury found those questions in the affirmative, and that the article was libelous, they were directed to return a verdict in plaintiff’s favor. The theory of defense at this point opens into a field of controversy as to how far the intention of the publisher of an alleged libel to injure the particular plaintiff, is material to the latter’s recovery, if in fact, the publication was false and defamatory. This inquiry extends into a wider field, and one fruitful in judicial disagreements, regarding the necessity and' influence of malice as an element of libel. The cases present subtle and elusive phases of reasoning on this subject and are so conflicting that the law of libel has been denounced as vague, fluctuating and incomprehensible. (Holt, Libel, Preface; Ency. Britt. “Libel.”) Likely its uncertainty is due to the retention by the courts of the doctrine that malice is essential to a libel more than to any other tort. The word “malice” has been declared by an eminent jurist rarely to have any meaning in law except a misleading one (dustice Stephen as quoted in Newell, Slander & Libel (2 Ed.), p. 317.) Another judge has deplored the use of the word aud the maintenance of the doctrine that malice is essential in cases like this (Lord Bromwell in Abrath v. R. R., 11 App. Cas. 253) because malice, though always insisted on in theory, is dispensed with in every comprehensible sense. Only legal malice is exacted and, on analysis, this sinks-into a myth or fiction; for so much malice as is necessary to afford compensation for actual damage is inferred from the fact that a false writing was published concerning the plaintiff; although, in truth, the publisher felt no ill-will and believed he was telling the truth. This result eliminates malice from actions for libel, as a practical factor, save as a reason for awarding more than compensative damages or overcoming the defense of privileged communication. A libel is a tort, and, generally speaking, neither the intention with which a tortfeasor acted nor the state of his feelings toward the person injured or mankind at large, lessens his responsibility for injuries actually caused by his wrongful act. He must make recompense, although he was free from moral delinquency. Any false and defamatory publication which is not privileged gives rise to a case for damages sustained from it. This is true of libel, notwithstanding the formula so often reiterated, that malice is the gist of the action. The essential facts are, the falsity of the charge, its publication and libelous nature. If true, no degree of malice in the publisher will make it libel, nor, if false, will rectitude of purpose exonerate him.

In Jones v. Murray, 167 Mo. 25, 49, 66 S. W. 981, our Supreme Court said the sum of the laAv is that if the publication was false and the plaintiff has suffered actual damages, he is entitled to recover such damages, no matter hoAV innocently, or Avith AArhat purpose, intent or motive the defentant acted. But if the defendant acted in good faith and Avithout malice, that fact Avould mitigate the damages. The same propositions Avere announced in the thoroughly considered case of Root v. King, 7 Cow. (N. Y.) 613, 633. The courts have said frequently that the law looks at the tendency and, consequence of the publication, not at the intention of the publisher; and that the absence of malicious intent] Avill not avail the defendant as an excuse. [Haire v. Wilson, 9 B. & C. 643; Fisher v. Clement, 10 B. & C. 472; Wenman v. Ash, 13 C. B. 845; Huntley v. Ward, 6 C. B. n. s. 514.] And so the standard text-writers say. [Odgers, Libel and Slander (4 Ed.), 319; Newell, Slander and Libel (2 Ed.), 901.] What is meant by malice in these actions is that the publication of the false matter was without iawful excuse; or, to present the rule in a perfectly definite and intelligible form, that it was unprivileged. If it was a privileged communication, no malice is inferred from the publication and the case fails unless malice is otherwise proved. In this case the article was not of a privileged sort and the publication of it will sustain the inference of malice against the plaintiff, though the defendant acted under a total misapprehension about the facts and believed it (was publishing the simple truth. Defendant mistakenly identified the plaintiff, of whom the published facts were not true, with another individual of the same name of whom they were true, and under the mistaken impression published plaintiff’s picture labeled “Boss James Farley,” thereby referring directly to plaintiff. But the article was false and libelous as regards plaintiff, was published without lawful excuse, not being privileged, and therefore in the artificial and meaningless terminology of the law, was malicious. It is certain that the article in question and the picture of the plaintiff which l accompanied it, labeled “Boss James Farley,” pointed j to the plaintiff as the person meant by the writer, and that plaintiff would be taken as the person meant by j those citizens of his home community Avho knew him well enough to recognize the picture, but not Avell enough to j know he was innocent of the acts ascribed to him. Intimate friends and familiar acquaintances probably j knew the paper had made a mistake in designating i plaintiff as the strike-breaker, James Farley; but even | they might have thought that for some reason the paper had chosen to represent him as that character. But ( every one Avho kneAV something of him, without knowing Avho- Avas in. truth, the strike-breaker, Avas apt to lake for granted that plaintiff was; and, of course, such an im1 pression on their minds Avould /be detrimental to the plaintiff’s reputation, as the sketch accused the subject | of it of dishonorable conduct. If Ave scrutinize yet more closely the publication ' editor intended readers of his paper to understand that the conclusion cannot the person whose picture was published was the person to whom the article alluded. In that sense the article meant and referred to this plaintiff» and he was intended to be described by the writer. It is true, this intention may have been brought about in a curious way, by the mistake of the editor as to whom the picture in his “Morgue” represented. He said he thought it was a picture of James Farley the strike-breaker; not knowing there was such a person as the plaintiff in existence. Now the publication of the article and the picture wrought damage to the plaintiff — of this there was positive proof, and none to the contrary. Laboring men who were acquainted with him made taunting remarks and gestures and said he was a “scab;” his children were pointed out and jeered at; and he was scorned by members of his community not familiar with his life. Should he be denied redress for his distress and the injury to his reputation, because the defendant’s editor mistook his picture for that of another man? We hold not. It is sufficient for the plaintiff’s case that the article meant and referred to him and was so understood by the community generally on reasonable grounds. The jury was fully justified in finding that the article referred to the plaintiff, as his picture accompanied it and he was designated as “Boss James Farley,” about whom the statements in the article were made. Moreover, the published retraction was disingenuous and tended but little, if at all, to disabuse the minds of the' community. In the supposed retraction the defendant did not frankly admit that it had published plaintiff’s picture for that of the strike-breaker Farley, by mistake; but said the published picture bore a striking resemblance to plaintiff and was intended as the picture of the Chicago man. The article said the picture had caused plaintiff’s friends to joke him about his resemblance to the' strike-breaker. It is obvious that as the picture was of the plaintiff, such an explanation was vague and not well adapted to remove the belief that plaintiff was the person accused in the libel. The mistake of the editor might be considered in mitigation of damages; but for the damage actually inflicted on plaintiff’s feelings and reputation he ought to have redress, and it is no excuse to say a mistake occurred. This would be much like holding that a man who honestly believed he was undermining his own land but was actually undermining the land of hig neighbor, should be excused from answering for damage done to his neighbor because he mistook the boundary line between the properties.

The deepest doubt we have had in this case is as to whether the defendant is liable, in any event, for injury done by mistake, or only if it failed of ordinary care; that is as to whether it was entitled, under the instructions, to a finding on the question of its exercise of reasonable care in publishing the picture. This question need not be decided; because the defendant’s requested instructions called for a verdict in its favor, not on a finding that it used ordinary care to learn whose picture it was about to publish, but merely on a finding that the picture was intended to represent some one else than plaintiff. This is not the law. It could and did represent no one but the plaintiff and defendant was responsible for putting plaintiff in a false light; at/least, unless it did everything that, in reason, it ought to have done to prevent the mistake. y

In Davis v. Marxhausen, 86 Mich. 281, a newspaper in Detroit had published that Michael Davis, residing at 311 East Columbia street, had been arrested for theft. A man by that name had been arrested for theft, but he was a different person from the Michael Davis who lived at the number stated. The latter instituted an action for libel and lost his suit in the lower court on an instruction that he must prove he was the person designated in the publication. It was held on the appeal that, as his name and residence were both given, he was so precisely designated that there was no question of the kind to be submitted; that the libel consisted in referring to him as the person arrested, when in truth he was not. Now, this plaintiff’s name was given and his own picture published with the article; not the picture of the strike-breaker. Plaintiff, therefore, was designated as the one written about. This case seems to be identical in principle with the Michigan one; and as the mistake in that instance was held no defense, the decision is a pertinent authority. Of course, the mere use in the article of the name which belonged to the plaintiff, if it also belonged to some one else whom the article meant, would give the plaintiff no cause of action for libel if nothing was said or done to point liim out as the individual meant. But his name was used and given application by printing his picture labeled “Boss James Farley.” The identity of the person accused by the article was unmistakable. We ara the more inclined to adopt this ruling because in this State, although malice, technical or actual, is saicLfo bejjn- ingredient of a libel, and, indeed, the gist of it, thdsupreme Court has decided that if a libelous article is falsely published, the law will affix malice to the publication. [Buckley v. Knapp, 48 Mo. 152, 161.] That was a libel case in which the opinion said that in most instances of injury against the person or property of another, the actual intention of the author is immaterial; that the law considers any one whose carelessness and want of due regard to the rights of others occasions injury to them, is as much bound to make reparation as one who willfully does mischief. The reason assigned for the rule is that it makes no' difference to the injured party whether his injury was occasioned by a willful or negligent act, and such consideration onght not to affect his remedy. That view seems to harmonize the doctrine of the law of libel with that of other torts, as regards the effect of the intention of the wrongdoer on his responsibility for damage actually inflicted. If the intention to injure will not make the publication of a true writing actionable, neither should the lack of such intention take away a right of action for the publication of an untrue writing.

Decisions of a contrary import can be found. In Hanson v. Globe Newspaper Co., 159 Mass. 293, it was held by an eminent tribunal that where a mistake occurred in the name of a party accused in a newspaper of having been arrested for a crime, he was not libeled. That ruling was sanctioned by a bare majority of the judges and there was a vigorous dissenting opinion which is approved in the note in 20 L. R. A. 856, and seems to us more in harmony with the law generally and especially as expounded by the Supreme Court of this State. We have found no decision outside its jurisdiction which gives the majority opinion much countenance, but there is another Massachusetts case somewhat analogous. [Smith v. Ashley, 11 Met. 367.]

It is said in numerous cases that the plaintiff must prove the libel or slander was uttered of him. [Baldwin v. Hildreth, 14 Gray 221.] We think this fact was proved in the present case in the sense the rule means, namely; that the article referred to the plaintiff. It was not necessary to show he would have been referred to had the editor understood all the facts. The proposition is' maintained generally that though the publication of a libel was due to mistake, the publisher is answerable; and we see no reason why libelling a person on account of mistakenly identifying him with some one else should be an exception. That publication of a libel by mistake is no defense to an action for the damages caused, was held, under various circumstances> in the following decisions: Shepheard v. Whitaker, L. R. 10 C. P. 502; Fox v. Broedrick, 14 Irish L. R. 453; Blake v. Stevens, 4 F. & F. 232; Loibl v. Breedenbach, 78 Wis. 49. In the first of those cases the facts disclosed were that the name of the plaintiff’s firm was published by mistake in defendant’s newspaper under the heading “First Meeting' Under the Bankruptcy Act,” when it was intended to. be published under the heading “Dis-solutions of Partnerships.” A verdict for the plaintiff was sustained on the ground that the public could have understood from the publication that plaintiff’s firm was bankrupt. On the whole, our opinion is that the contention that plaintiff wag entitled to no verdict or to nominal damages only, because the defendant was free from malice and had no intention to libel him is without merit. We think he was entitled to compensation and that the evidence authorized the damages assessed.

The judgment ia affirmed.

All concur.