Manget v. O’Neill, 51 Mo. App. 35 (Mo. Ct. App., Eastern District 1892)

Rombauer, P. J.

The defendant was the publisher ■of the Irish-American, a campaign sheet of limited cir

culation, in which he inserted on October 25, 1890, the following publication of and concerning the plaintiff:

The italics are ours.

The statement referred to matters which had occurred more than ten years prior to the publication. It appeared in evidence that, immediately preceding the publication, the plaintiff and the defendant had a protracted litigation in which the. plaintiff was successful, and, as no other explanation was furnished by

the defendant why the publication was made, it is fairly presumable that it was a purely retaliatory act, and clearly malicious. The plaintiff’s petition is founded on this publication.

The answer admitted the ownership of the newspaper, and the publication, but denied that the matter was libelous, or that the plaintiff was injured. The answer further denied malice in the publication, and averred that the statement was published in good faith under a belief that it was true. Upon a trial before a jury the plaintiff recovered a verdict for $600, $100 of which was awarded by the jury as exemplary damages.

The errors assigned are that the court erred in its rulings on the evidence and instructions, and that the damages assessed are excessive.

In passing on this last assignment we need only say what we have repeatedly Stated heretofore, that, since there is no fixed money standard by which injury to character and reputation can be measured, we can vacate a verdict on the ground of excess only in cases where the damages awarded are so disproportionate to any possible injury done by the publication, as to clearly indicate bias or prejudice on part of the jury. That this is not such a case appears from the statement of the facts above made.

It was in evidence that, while the defendant’s newspaper was one of limited circulation to subscribers, he had mailed as many as ten thousand copies of single editions at times, and it did not appear that the edition containing this publication was not distributed by many thousands.

The plaintiff was and is a railroad ticket broker, and was a witness in his own behalf. On his cross-examination he was. asked whether he did.not also, under the guise of manufacturing medicines and bitters, make a compound containing whiskey for the purpose

of selling it in states where the sale of whiskey is prohibited by law. He admitted that he manufactured the compounds, but denied that he did so with the purpose mentioned. The defendant thereupon called two witnesses for the purpose of contradicting the plaintiff on this point, but the court would not permit bim to do so, and the defendant excepted and still excepts. This ruling was clearly correct. The cross-examination was touching a matter in no way involved in the issues, and a witness cannot be impeached by evidence contradicting him as to such matters elicited on his cross-examination. Harper v. Railroad, 47 Mo. 567; Odgers on Slander, sec. 320.

The plaintiff was asked on his cross-examination: “Did you bring this suit for money, or to get O’Neill punished?” The court properly excluded the question. Quo mimo the plaintiff brought the suit was wholly immaterial, and could not affect either the right or extent of his recovery. Bradley v. Kennedy, 2 G. Greene (Iowa) 231.

Two witnesses for the plaintiff were permitted to answer, against defendant’s .objection, the question whether a ticket broker is of any benefit to the traveling public, and whether a man’s social position is affected by his being a ticket broker. The defendant endeavored to show, on cross-examination of plaintiff’s witnesses, that the business of a ticket broker is not a respectable calling, and was injurious to the railroads and travelers, and rendered them .socially off color. The evidence of these witnesses which the court admitted both on cross-examination and on their re-examination was irrelevant, and should have been excluded, but the defendant’s objection was neither sufficiently specific to found an exception on, nor is the admission of mere irrelevant testimony ground for reversal, unless there is some probability that it affected the result, Anderson v.

Shockley, 82 Mo. 250; Seibert v. Supreme Council, 23 Mo. App. 268.

It is also contended by the defendant that the words published not being actionable per se, and no special damages being shown by - the evidence, the verdict is unsupported by the evidence. Terwilliger v. Wands, 17 N. Y. 54, and Wilson v. Goit, 17 N. Y. 442, are cited in support of this proposition. Both these cases were actions for oral slander. The defendant’s argument overlooks the distinction between oral slander and written slander or libel, which was recognized in this state as early as Nelson v. Musgrave, 10 Mo. 648, and has been maintained ever since. Keemle v. Sass, 12 Mo. 499; Price v. Whiteley, 50 Mo. 439. The definition of libel, as adopted in the first case above quoted, has since that time passed into our criminal statutes, and it suffices to make any publication libelous and actionable per se, that it is false and tends to expose the plaintiff to public hatred, contempt and ridicule, or to blacken his reputation. Thus in Nelson v. Musgrave, supra, it was held that to publish of a man, “He is thought no more of than a counterfeiter, a horse thief, a liar and a false swearer,” was a defamatory publication actionable per se. In Price v. Whiteley, supra, it was held that to publish of one that “He is an imp of the devil and cowardly snail” was actionable per se, and this is no stronger than to call one “a confidence man,” who “betrays confidence and friendship” and “a whelp,” and to charge him with doing “crooked work,” and designate him as “a specimen too contemptible for any decent person to associate with.”

We see no error in the instructions. As none of the exceptions saved are tenable, it results that the judgment must be affirmed. All the judges concurring, it is so ordered.