Cook v. Globe Printing Company of St. Louis

Citation127 S.W. 332,227 Mo. 471
PartiesSAMUEL B. COOK v. GLOBE PRINTING COMPANY OF ST. LOUIS, Appellant
Decision Date26 April 1910
CourtMissouri Supreme Court

Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed (conditionally).

Ashley C. Clover and E. C. Crow for appellant.

(1) The gist of the complaint of the plaintiff is that defendant published that plaintiff had made a false affidavit under the Corrupt Practices Act, and thereby charged the plaintiff with the crimes of perjury and of making a false affidavit. The petition alleged in one count that defendant in the publication pleaded had charged plaintiff with the two independent and separate crimes of perjury and of making a false affidavit. It is apparent from the instructions that the issue of whether or not the portions of the publication complained of did in fact charge the plaintiff with having committed the crimes of perjury or of making a voluntary false affidavit, was submitted to the jury, thereby making the charge of perjury or of making a false affidavit an issue in the case. It is proper, therefore, to consider, first what, under our law, constitutes the two offenses; second did the publication complained of, constitute a legal charge that plaintiff committed either or both offenses. Statutory definition of perjury: R. S. 1899, sec. 2033. Statutory definition of making false affidavit: R. S. 1899, sec. 2036. (2) To publish of a man "he is perjured" or that he committed perjury, is libelous, for these words being the legal term for the crime shall be intended to mean that he was forsworn in a judicial proceeding. Newell on Slander and Libel (2 Ed.), sec. 55, p. 123, and sec. 6, p. 68. The publication complained of does not in literal legal terms charge that plaintiff committed perjury. The plaintiff in his petition, claims that the charge of perjury was made by inference only. The question then is, was the publication reasonably susceptible of the construction that it charged plaintiff with perjury? (3) If the publication is not reasonably capable of the defamatory meaning alleged to attach to it, then it is not libelous. McGinnis v. Knapp & Co., 109 Mo. 131. (4) For the purpose of its construction, language is to be regarded not merely in reference to the words employed, but according to the sense or meaning which, all the circumstances of its publication considered, the language may be fairly presumed to have conveyed to those to whom it was published. Townshend on Slander and Libel, sec. 133; McGinnis v. Knapp, 109 Mo. 140. The act alleged to be libelous must be construed as a whole and not separated into parts and construed separately. Von Vachter v. Walkup, 46 Cal. 124. The liability of the defendant should be determined by all he has published in the same pamphlet or paper. Morehead v Jones, 2 B. Mon. (41 Ky.) 210. In determining the construction to be put upon the language of any part of a publication, the court will construe it with reference to the entire writing. Townshend on Slander and Libel, p. 175; Newell on Slander and Libel, sec. 4, pp. 290-291; McGinnis v. Knapp, 109 Mo. 131; Walford v Herald Co., 133 Ind. 372. And still another rule applied in determining whether a publication is reasonably susceptible of a libelous meaning is that if the language complained of amounts of itself to a charge of a crime, yet is accompanied with a specification of acts upon which the charge is based which shows that no such crime was committed the person mentioned has no cause of action. As, if the words relate to the taking of property not a subject of larceny, they will not be actionable. Trimble v. Foster, 89 Mo. 52; Johnson v. Post-Dispatch, 2 Mo.App. 565; Hall v. Adkins, 59 Mo. 144; Pasley v. Kemp, 22 Mo. 409; Israel v. Israel, 109 Mo.App. 376; Grimes v. Thorp, 113 Mo. 652; Carpenter v. Hamilton, 185 Mo. 603; Alderson v. Auerswald, 80 Mo.App. 370. To publish that a man lied or swore falsely, or took a false oath does not alone charge him with perjury. Such a published statement will not sustain an action for libel grounded on the charge of perjury. Mahan v. Berry, 5 Mo. 21; Newell on Slander and Libel, secs. 50 to 58; Harris v. Woody, 9 Mo. 113; Persley v. Bacon, 20 Mo. 330; McManus v. Jackson, 28 Mo. 56; Shaffer v. Kintze, 1 Binn. (Pa.) 537; Van Rensler v. Dole, 1 Johns. Cas. 279; Shecut v. McDowell, 1 Com. (S. C.) 35; Thompson v. Bernard, 1 Camp. 48; Parker v. Spangler, 2 Binn. (Pa.) 60; Stafford v. Greene, 1 Johns. Cas. 505; Ward v. Clark, 2 Johns. 10; Green v. Long, 2 Cains 901; Clifton v. Kahle, 3 Watts (Pa.) 94; McClurg v. Ross, 5 Binn. (Pa.) 320. In the absence of a statute, to charge a person with having sworn falsely is not a charge of perjury, unless it refers to some swearing in a judicial proceeding. Newell on Slander and Libel, sec. 52; Crookshank v. Gray, 20 Johns. 324; Stafford v. Green, 1 Johns. 505. In the absence of statutory enactments, it is impossible that any person by falsely taking an oath can be guilty of legal perjury unless the oath is taken in a judicial proceeding. Newell on Slander and Libel, sec. 50. A charge that plaintiff swore falsely in an affidavit to a report of campaign contributions would not be a charge that plaintiff committed perjury. State v. Hamilton, 7 Mo. 300; Shaffer v. Kintze, 1 Binn. (Pa.) 537. The innuendo alleging that defendant charged the plaintiff with perjury is inconsistent with the publication. The whole article complained of relates to the making of an extra-judicial affidavit under the Corrupt Practices Act. Shaffer v. Kintze, 1 Binn. (Pa.) 537. If the publication related to a particular transaction which shows that the crime of perjury could not have been committed, then the innuendo cannot make the charge one of perjury. Shaffer v. Kintze, 1 Binn. (Pa.) 537; Van Rensler v. Dole, 1 Johns. Cas. 279; Shoont v. McDowell, 1 Com. (S. C.) 35; Thompson v. Bernard, 1 Camp. 48; Tipton v. Kahle, 3 Watts (Pa.) 93; Ward v. Clark, 2 Johns. 10. The publication here complained of did refer specifically to a particular transaction, i. e., the making of a false, sworn affidavit to campaign contributions, and the particular acts stated and transaction in itself shows that the crime of perjury could not have been committed by plaintiff in making a false affidavit to a report as to campaign contributions under the circumstances, because the plaintiff was not required to take any oath as chairman of the State Committee, and had he made an affidavit it would have been an extra-judicial one. For these reasons the innuendo of perjury is inconsistent with and contradictory to the publication and the language of the publication. If the colloquium as laid and proved is to an extra-judicial affidavit or one not provided for or required by the Constitution or any law or ordinance of the State, then it is not a charge of perjury to publish of one that he swore falsely in such affidavit. State v. Hamilton, 7 Mo. 300; Shaffer v. Kintze, 1 Binn. (Pa.) 537. The offenses of perjury and making a voluntary false affidavit are two distinct and separate offenses under our law, perjury being a felony, and making a voluntary false oath a misdemeanor. State v. Boland, 12 Mo.App. 75. (5) Then the petition was bad for misjoinder, because it contained averments in the same count of the two crimes of perjury and of making a false affidavit, and it is improper to join in the same count averments imputing distinct crimes. Christal v. Craig, 80 Mo. 367. (6) As the alleged publication is not reasonably susceptible of the interpretation that it charges the plaintiff with perjury, the trial court committed reversible error when it submitted the issue to the jury as to whether the portions of the publication complained of did in fact charge the plaintiff with perjury. It is unjust to allow damages in part or in whole for a portion of a publication not actionable as a charge of perjury, and therefore the court was wrong in leaving it to the jury to determine whether the charge of perjury laid by innuendo in the petition was proved. No innuendo though found by the jury would render the defendant liable for words not in themselves actionable. Shaffer v. Kintze, 1 Binn. (Pa.) 537; Parker v. Spangler, 2 Binn. (Pa.) 60; Tipton v. Kahle, 3 Watts (Pa.) 93. As no perjury was charged in the publication it was error to allow the charge of perjury to be considered by the jury as an issue in the case, as it prejudicially affected the question of damages. Tipton v. Kahle, 3 Watts (Pa.) 93. If the publication does not charge perjury neither the innuendo nor the verdict aid. McClurg v. Roon, 5 Binn. (Pa.) 220; Andrew v. Kopperlaufe, 3 Sarg. & Rawle 257; Shaffer v. Kintze, 1 Binn. (Pa.) 357. (7) If the plaintiff contends the libel consisted of charging him with making a false affidavit under the Corrupt Practices Act (sec. 7195, R. S. 1899), then according to his own testimony he was legally guilty of making a voluntary false affidavit under section 2036, because that section makes the act a misdemeanor, and the plaintiff admits he counseled and advised Ziebig to make the false affidavit and that he took part in getting it made. In this State any person taking part in a misdemeanor is a principal and not an accessory. State v. Wayther, 75 Mo. 108; State v. McLain, 92 Mo.App. 456; State v. Frederick, 85 Mo. 150; State v. Orwisk, 106 Mo. 119; State v. Edgreen, 181 Mo. 590. (8) The facts in evidence in this case do not justify any other conclusion but that the jury were moved by passion and prejudice and that their passion and prejudice resulted in the excessive verdict. We understand the rule to be that the verdict which the jury may award in such a case will not ordinarily be interfered with unless it appear that the damages awarded by them are so grossly in excess of, or inadequate...

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5 cases
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