Samuel J. Douglas, has now, and for a long time has had, pending in the Circuit Court of the City of St. Louis, a libel suit against Lawrence McDaniel and George E. Thompson. This suit has for its basis a letter written by these two gentlemen *Page 36 to the Complaint Board of the City of St. Louis. From the filing of the libel petition, Douglas has made a persistent fight to secure this letter for use in the trial of his libel suit. See his divers efforts in the following cases in the court of Appeals, and in this court: State ex rel. Douglas v. Tune et al., 191 S.W. 1078; State ex rel. Douglas v. Tune et al., 200 S.W. 1062; State ex rel. Douglas v. Tune et al., 199 Mo. App. 404; State ex rel. Douglas v. Reynolds et al., Judges, 209 S.W. 100,276 Mo. 688.
The situation as to all these cases, except the last named above is fairly stated in State ex rel. v. Tune et al., 199 Mo. App. l.c. 410. In the instant case we are only concerned with the case in 199 Mo. App., supra, and our own case in 276 Mo., supra.
The present case is in prohibition, wherein the Complaint Board of St. Louis, is seeking to prohibit the circuit court from enforcing a writ of subpoena duces tecum, issued by the circuit court (now having for disposition the aforesaid libel suit) requiring this Complaint Board and its secretary to produce this letter for use in the trial of the cause.
Douglas had made a previous attempt to get this letter or a copy thereof for use in the libel suit. This time was by mandamus against the Complaint Board and its secretary. [See199 Mo. App. 404, supra.] In that case the St. Louis Court of Appeals in closing its opinion (199 Mo. App. l.c. 415) said:
"Our conclusion is that the respondents here were justified in their refusal to permit relator to have an inspection of the letter, assuming such letter was in their control, and in refusing to allow the relator to make a copy of it. That is as far as we go in this case, except to say that neither our court nor the circuit court in which the action for libel is pending, can compel the production of the letter for the purposes sought by relator. Whether the circuit court, in which the action for libel is pending, can proceed with the case, in the absence of the *Page 37 original letter and allow parole testimony to be given as to its contents, is a question which is not now before us and which we do not decide."
This opinion was brought before us by certiorari in State ex rel. Douglas v. Reynolds et al., 276 Mo. 688, and we declined to quash it. It stands as the law upon the questions therein adjudicated.
The petitioners (relators) for our writ of prohibition plead the final adjudication of Douglas's right to the use of this letter in his libel suit in their petition herein, and say that notwithstanding such final adjudication of the question, the circuit court is calling for the letter for such use by its subpoena duces tecum, issued upon the application of Douglas, which subpoena the court has refused to quash, notwithstanding the adjudication in the St. Louis Court of Appeals.
The respondents (Circuit Judges) appear here through the counsel for Douglas, and in their return urge that the present action is between different parties, is different in the form of action, and is different in subject-matter. However, by exhibits and allegations in the petition (not denied in the return) the matter as to whether or not there has been an adjudication of the same question in the former action in the record before us. This outlines the situation.
I. It is urged by learned counsel for the respondents, that the petition for the subpoena duces tecum was granted because of what we said in 276 Mo. 688, supra. They urge that we ruled that the letter was only qualifiedly privileged and not absolutely privileged.
In the case of State ex rel. Douglas v. Reynolds, 276 Mo. 688, we did not rule that the letter was qualifiedly privileged and not absolutely privileged. The Court of Appeals had ruled that it was against public policy to permit communications of this character to be made public, and we did not quash their judgment, because we had never ruled upon a similar state of *Page 38 facts, and there was no conflict of opinion. What we did say was that the letter, under the facts, was "at least qualifiedly privileged" and in the absence of a charge of malice, the Court of Appeals could have justified its judgment upon that ground. It had not done so however.
We did not rule that the letter was only qualifiedly privileged. We were not trying to determine the question of qualified privilege or absolute privilege, but we did rule that even if the letter was qualifiedly privileged, the defect in the pleadings were not such as would permit its use — absent in the pleadings the charge of malice. We went further and said that the whole discussion was beside the real issue. So that if this opinion was the occasion for the issuance of the subpoena ducestecum, there was no justification for the issuance of it.
II. If there had been a prior adjudication of the rights of Douglas to use this letter in the trial of his libel suit, and that adjudication against him, then will prohibition lie? We have ruled that prohibition will lie where an appeal would not be an adequate remedy. To refuse prohibition, it must appear that the party has another remedy, by appeal or otherwise which is adequate, prompt, and efficient. [State ex rel. Knisely v. Jones, 202 S.W. l.c. 1122.]
In this case the parties would have to go through the trial of a libel suit, and be subject to all the expenses and inconveniences thereof, when, if the trial court adheres to its expressed views, they would have to appeal to this court, to have the question of res adjudicata determined. In such case the appeal would not be an adequate, efficient and prompt remedy. Relators have been in court four times at the instance of Douglas upon the right of Douglas to use this letter in the trial of his libel suit. Now he insists that they come for a fifth time by the cumbersome route of appeal. It is time *Page 39 that the question be settled, but an appeal is wholly inadequate as the remedy, in view of the indisputed facts before us. So we hold, that if in fact the plea of former adjudication is good, the writ should go.
III. The question ruled by the St. Louis Court of Appeals was that Douglas could not compel the production of this letter for the use he desired, i.e. for use in the trial of his libel suit. [199 Mo. App. l.c. 415.] This was the mandamus case in the St. Louis Court of Appeals. Douglas was the relator in that case, and the Complaint Board and its secretary were the respondents. Hon. Douglas W. Robert represented Douglas in that case, as he does the respondents, for Douglas, in this case. In this case the relators are the Complaint Board and its secretary, and the nominal respondents, two Circuit Judges of St. Louis, but the real respondent, and the one interested in upholding the Circuit Judge, is none other than Douglas, through his counsel. Douglas does not have to be an actual party to the suit, if in fact, as here he is defending the action by his own counsel.
It would be to throw aside all of our experiences to say that Douglas is not the real respondent in the present action. We know by whom all such cases are defended even if the counsel for Douglas were not actually (as here) defending the action. The whole brief for respondents here shows that counsel are here for Douglas. So that we rule that there is identity of parties in the two cases. In other words, whatever our judgment here, it would bind Douglas. [Titus v. North K.C. Development Co., 264 Mo. 229; 15 R.C.L. l.c. 1010.] In the latter it is said:
"The courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered, as for example *Page 40 those who employ counsel in the case, assume the active management of the proceeding or defense, or who pay the costs and do such other things as are generally done by parties. In other words, by participating in the proceedings one is estopped by the judgment as to any questions actually litigated and decided therein. One who instigates another to do a wrongful act, and, when the wrongdoer is sued, takes upon himself and conducts the defense of the case, is estopped from again litigating with the plaintiff in that action the issues there decided. Similarly, where a suit is prosecuted or defended by one person at the instance of another, and for the latter's benefit, the judgment will be binding and conclusive upon the latter. In all such cases the strict rule that a judgment operates as res judicata only in regard to parties and privies expands to include such persons as parties, or at least as privies."
So too there is the same subject-matter, i.e., the use of this letter by Douglas in the trial of his libel suit. And this in the face of the fact, that the question of such use has been fully and finally determined against him (in the mandamus suit) by the St. Louis Court of Appeals.
There can be res adjudicata as to certain questions in a case, without involving the whole case. Such is the situation here. The right of Douglas to use this letter is a matter finally determined, and as this matter appears upon the face of the record before us, our writ should go. Under the facts an appeal would be wholly inadequate. For these reasons I dissent. Walker,C.J., and Woodson, J., concur in these views. *Page 41