Branch v. George Knapp & Co.

• Decision Date: 13 July 1909
• Parties: GLOVER C. BRANCH v. PUBLISHERS: GEORGE KNAPP & COMPANY, Appellant
• Court: Missouri Supreme Court

121 S.W. 93

222 Mo. 580

GLOVER C. BRANCH v. PUBLISHERS: GEORGE KNAPP & COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 13, 1909

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed.

Lehmann & Lehmann and Wm. H. Chiles for appellant.

(1) The publication was not ambiguous or of doubtful import and evidence of witnesses as to its meaning was therefore improperly received. Newell on Slander and Libel, 290. (2) The court held the article to be plain and unambiguous and so was bound to declare its meaning as matter of law and erred in submitting it to the jury as a question of fact. Heller v. Pulitzer Pub. Co., 153 Mo. 205; Ukman v. Daily Record Co., 189 Mo. 378; Vedder v Fellows, 20 N.Y. 768; Massey v. Tingle, 29 Mo 437; Harrison v. Hance, 37 Mo. 185. (3) Plaintiff's own conduct gave warrant for the comments complained of and the court should have directed a verdict for defendant. (4) The verdict is excessive and oppressive in amount. Chitty v. Railroad, 166 Mo. 435; Newcomb v. Railroad, 182 Mo. 687; Markey v. Railroad, 185 Mo. 348; Phippin v. Railroad, 196 Mo. 321; Stolze v. Railroad, 188 Mo. 581; Reynolds v Railroad, 189 Mo. 408; Devoy v. Railroad, 192 Mo. 197.

Reed, Yates, Mastin & Harvey and Horace F. Blackwell for respondent.

(1) The language of the publication was ambiguous and susceptible of a double meaning, and evidence of witnesses as to what they understood the article to mean was properly received. Julian v. Kansas City Star Co., 209 Mo. 35; Newell on Slander and Libel, p. 311; Starkie on Slander and Libel (5 Ed.), p. 466; Odgers on Libel and Slander (4 Ed.), pp. 538, 634; Townsend on Slander, secs. 140, 384; 2 Greenleaf on Evidence, sec. 417; Nelson v. Borchenius, 52 Ill. 236; Smart v. Blanchard, 42 N.H. 146; Goldsborough v. Oren & Johnson, 103 Md. 671; Caruth v. Richeson, 96 Mo. 190; McGinnis v. Knapp, 109 Mo. 141; St. James Military Academy v. Gaiser, 125 Mo. 526; Ukman v. Daily Record Co., 189 Mo. 394; Wagner v. Printing Co., 45 Mo.App. 13; Knapp v. Fuller, 55 Vt. 311; Lewis v. Humphreys, 64 Mo.App. 470; Buford v. Young, 115 Ind. 175; Burton v. Holmes, 16 Iowa 264; State v. Fitzgerald, 20 Mo.App. 382; Israel v. Israel, 109 Mo.App. 382. (2) The court did not hold the article to be plain and susceptible of only one construction, and committed no error in submitting the meaning to the jury as a question of fact. Authorities cited under point I. (3) Plaintiff's conduct gave no warrant for the article sued on, and the court committed no error in not directing a verdict for the defendant. Julian v. Kansas City Star Co., 209 Mo. 35. (4) The verdict is not excessive. Longan v. Weltmer, 180 Mo. 322; Minter v. Bradstreet Co., 174 Mo. 444; Meriwether v. George Knapp & Co., 120 Mo.App. 392; Harrison v. Lakenan, 189 Mo. 581; Drake v. Kansas City, 190 Mo. 370; Fallenstein v. Boothe, 13 Mo. 427; Fullerton v. Fordyce, 114 Mo. 519; Cambron v. Railroad, 165 Mo. 543; Copeland v. Railroad, 175 Mo. 650; Scullin v. Railroad, 184 Mo. 695; Stotler v. Railroad, 200 Mo. 107; Julian v. Kansas City Star Co., 209 Mo. 35; Brown v. Globe Printing Co., 112 S.W. 462; Brown v. Publishers; George Knapp & Co., 112 S.W. 474.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is a suit for libel.

The petition states that the plaintiff is a citizen of Missouri, and a resident of Lafayette county. The defendant is a corporation of Missouri engaged in publishing a daily newspaper known as "The St. Louis Republic," which has a large daily circulation throughout the State of Missouri and other States of the Union and in foreign countries. That at the regular November election held in November, 1904, plaintiff was elected Representative of Lafayette county to the General Assembly of Missouri on the Republican ticket, and that he has since duly qualified and taken and now holds said office. That one of the matters to come before the General Assembly at its said session to be held in the month of January, 1905, was the election of a United States Senator to succeed Senator Cockrell. That prior to the publication of the article complained of, a number of men, among whom was Richard C. Kerens, were publicly aspiring to said office and were seeking to secure the support therefor of the Republican members elect to said General Assembly; that prior to the publication of the article complained of, it had been charged in various newspapers that efforts were being made, by the use of money and by other improper means, to influence the choice for United States Senator of said members of the Legislature elect. That until the publication of the article herein complained of plaintiff possessed a large number of personal friends and acquaintances in said county of Lafayette and throughout the State of Missouri and was generally esteemed as a good citizen and as an honest man, and that plaintiff bore and had always borne a good reputation in the matters aforesaid. That defendant, well knowing the facts aforesaid and intending and contriving wickedly and maliciously to injure plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace with and among his neighbors and other good and worthy citizens, and with the general public of the State of Missouri, and to cause it to be suspected and believed that he, the said plaintiff, was a member elect of the Legislature of the State of Missouri and that as such he had accepted and received gifts, considerations, gratuities and rewards under an agreement that his vote, opinion, judgment and decision should be given in favor of the said Richard C. Kerens for United States Senator in the election for United States Senator to be held by the General Assembly, and that because of said gifts and rewards, he, the said plaintiff, had agreed to vote for the said Richard C. Kerens, for the office of United States Senator at said election so to be holden, and, further, to cause it to be suspected and believed that he, the said plaintiff, had disregarded his conscience and intended to vote against his conscience because of favors received and improper and illegal considerations given and granted in favor of the said Kerens, and further, to cause it to be suspected and believed that plaintiff had bartered away his honor, and that he was a man without honor and that he was a man who was not guided by his conscience or controlled by his duty as a public officer and that he had disregarded his duty as a public officer and that he had accepted favors of an improper character from said Kerens, and further, to cause it to be believed that plaintiff was dishonest and corrupt and a venal public officer and that he had committed a crime in the manner aforesaid of accepting bribes and was liable to imprisonment in the penitentiary for a term not to exceed seven years, well knowing that the said charges were untrue, did on Wednesday, December 14th, 1904 falsely, wickedly and maliciously compose, print, publish and procure to be published in its newspaper, "The St. Louis Republic," in and through Lafayette county and all the other counties of this State and in various States and territories of the Union and through foreign countries, the following false, malicious, defamatory and libelous article, to-wit:

"Branch Eases Conscience.

"The publication of letters from Representative-elect Branch and Cook of Howell and the announcement that Brown of Grundy would vote for Kerens especially serves for many explanations.

"Branch of Lafayette has made two visits to St. Louis since the election. The first time he was presented to Senator Elkins of West Virginia, who, it is said, asked him very solicitously for his vote. Mr. Kerens himself previously, according to the story which he told to his friends, had opened proceedings by asking him if he could use any transportation or whether he wanted an office. Mr. Branch did not.

"Branch did not see the light at that visit. Last Friday he returned. The next morning he called at the Kerens headquarters. 'Glad to see you, Mr. Branch,' said Mr. Kerens to him, in a most charming manner. 'I want to talk to you about this senatorship, but I am very busy to-day and can't you stay over until to-morrow? I have a vacant room here and you might just as well sleep there to-night. It won't cost you a cent.'

"Branch demurred. He had told some of his friends just before going to the Planters that he 'didn't see how he could reconcile his conscience to vote for Kerens.' But the Representative-elect of Lafayette county 'bit.' He stayed over night. Even the next day Kerens was too busy to talk to him. Another night at the Planters and the theatre. It was easy living. Then Colonel Kerens talked. And to make a long story short, Branch of Lafayette 'reconciled his conscience' to the extent of signing a letter pledging his support to Kerens. He then went home."

Meaning thereby and intending to mean and the readers of said newspaper would understand said article to mean that plaintiff was a member elect of the Legislature and a public officer and that he had declared that he did not see how he could reconcile his conscience to vote for Richard C. Kerens for the United States Senate, but that he had visited the said Richard C. Kerens at the Planters Hotel in St. Louis and that there he had been entertained at the expense of the said Richard C. Kerens. That he had visited the theatre at his expense while at said hotel, and that he, the said plaintiff had stayed at said hotel for two days and accepted the gifts, considerations and gratuities from the said Richard C. Kerens and that in consideration thereof had promised and agreed to give his vote, as a member of the General Assembly, in favor of the said Richard C. Kerens...