Cook v. Pulitzer Publishing Company

Decision Date21 March 1912
Citation145 S.W. 480,241 Mo. 326
PartiesSAM B. COOK v. PULITZER PUBLISHING COMPANY, Appellant
CourtMissouri Supreme Court

241 Mo. 326 at 358.

Original Opinion of March 21, 1912, Reported at: 241 Mo. 326.

Motion overruled.

KENNISH J. Ferriss, P. J., and Brown, J., concur.

OPINION

ON MOTION FOR REHEARING.

KENNISH J.

Because of the insistence of distinguished counsel for respondent as to the correctness of their contention, we have deemed it proper to review the more important points urged in support of the motion for a rehearing.

The publication complained of consisted of two parts: alleged facts, and comments thereon. Both the facts and the comment relate to the official acts of a public officer. That fact is disclosed by plaintiff's petition. One of the defenses was that the article, being a fair comment upon a matter of public interest, was protected by a qualified privilege and therefore was not actionable. Another defense was that of justification by alleging the truth of the facts published.

At the close of all the evidence the defendant asked the court to give an instruction directing a verdict for the defendant. The opinion filed herein holds that the plaintiff had not made out a prima facie case, and that the court erred in refusing said instruction.

In the motion for a rehearing and brief, respondent complains that the opinion is at variance with the law of libel, for the reason that if the article is libelous on its face, as the opinion holds, then the law presumes malice and falsity and the publication being admitted, the evidence of the defendant could at most raise but an issue of fact for the jury, and not a question of law for the court. This complaint is sound as to the defense of justification, but it is unsound as to the defense of privilege.

The truth is always a defense to libel and available to all persons under the guaranty of the Constitution. In establishing that defense it is not essential that the defendant also rebut malice. Indeed that defense may be complete, though it be shown that the defendant was actuated by express malice. It follows that if in invoking the defense of qualified privilege, the defendant must prove the truth of the facts on which the comment is based, while the presumption of malice remains against him, he has gained nothing by the defense of privilege, for his burden is no less than under the defense of justification.

There is much contrariety of opinion in the decisions as to whether the plaintiff or defendant must bear the burden of proof upon the issue of the truth or falsity of the facts commented upon and upon the issue of malice, where the defense of qualified privilege of comment upon a matter of public interest is made, as in the case in hand. To attempt to reconcile the decisions would be an impossible task. The law applicable in case of the defense of privileged communication, a defense closely allied to that of privileged comment, is that the onus of proving both express malice and falsity rests upon the plaintiff. [Edwards v. Chandler, 14 Mich. 471 475; Konkle v. Haven, 140 Mich. 472, 103 N.W. 850; Trimble v. Morrish, 152 Mich. 624, 116 N.W. 451; Fowles v. Bowen, 30 N.Y. 20; Ashcroft v. Hammond, 197 N.Y. 488, 90 N.E. 1117; Peterson v. Steenerson, 113 Minn. 87, 129 N.W. 147.]

In some jurisdictions the foregoing rule has been applied generally to the defense of qualified privilege, without distinction as to whether the privilege is invoked in a case of a privileged communication or a privileged comment upon a matter of public interest. This rule is adopted in the following cases: Cornelius v. Cornelius, 233 Mo. 1, 135 S.W. 65; Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931; Briggs v. Garrett, 111 Pa. 404, 2 A. 513; Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323; Coleman v. MacLennan, 78 Kan. 711, 98 P. 281.

In the case of Cornelius v. Cornelius, supra, 233 Mo. 1, 30, Lamm, J., speaking for this court, said: "There is a precept of the law to the effect that slanderous words are prima facie untrue. A presumption lies that way. Therefore when the occasion is semi-privileged -- i. e., qualifiedly privileged -- that presumption is suspended. Its suspension, however, leaves the matter open to proof of express malice, and plaintiff merely carries the burden of proving the accusation was not made in good faith but was false and made maliciously."

In the case of Gattis v. Kilgo, supra, 128 N.C. 402, 406, the court said: "And his honor correctly instructed the jury that the publication being admitted and being a qualifiedly privileged one, it was incumbent on the plaintiff to prove by the greater weight of evidence, not only that the publication was false, but that it was also malicious."

Other authorities hold that the burden of proving actual malice in case of a defense of privileged comment, rests upon the plaintiff, but that proof of such malice alone destroys the privilege. [Gott v. Pulsifer, 122 Mass. 235; Cranfill v. Hayden, 97 Tex. 544, 80 S.W. 609; Atwater v. Morning News, 67 Conn. 504, 34 A. 865; Tawney v. Simonson, 109 Minn. 341, 124 N.W. 229; Press Co. v. Stewart, 119 Pa. 584, 14 A. 51; Crane v. Waters, 10 F. 619; Newell on Slander and Libel (2 Ed.), p. 566; 25 Cyc. 402.]

In Gott v. Pulsifer, supra, 122 Mass. 235, 238, the court said: "The editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, fair and reasonable comment, however severe its terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications, for which no action can be maintained without proof of actual malice."

In Cranfill v. Hayden, supra, 97 Tex. 544, 562 and 564, in discussing the rule applicable to qualifiedly privileged publications generally, the court said: "When the court finds that the publication is conditionally privileged, the effect of the holding is to cast upon the plaintiff the burden of proving that malice prompted the act -- not merely malice which arises by implication of law, but malice in fact, otherwise denominated actual malice. In other words, if the publication be conditionally privileged, malice is not implied from the mere fact of the publication. . . . Where the alleged libel is conditionally privileged, the defendant may justify either by showing the privilege or by pleading and proving that the statements are true. But malice being proved and the privilege thereby removed, he must fall back upon his justification by proof of the truth of the charges; and we see no good reason why the ordinary rule applied in other cases upon that issue should not be applicable to him."

On the other hand the doctrine is supported by the highest authority that if facts are stated in the publication upon which the comment is based, and such facts are false, then the defense of privileged comment fails. [Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1; Dunneback v. Tribune Printing Co., 108 Mich. 75, 65 N.W. 583; Vance v. Louisville Courier Journal Co., 95 Ky. 41, 23 S.W. 591; Evening Post v. Richardson, 113 Ky. 641, 68 S.W. 665; Farley v. McBride, 74 Neb. 49, 103 N.W. 1036; Sweeney v. Baker, 13 W.Va. 158; Belknap v. Ball, 83 Mich. 583, 47 N.W. 674; Eikhoff v. Gilbert, 124 Mich. 353, 83 N.W. 110; Hubbard v. Allyn, 200 Mass. 166, 86 N.E. 356; Post Pub. Co. v. Hallam, 59 F. 530; Newell on Slander & Libel (2 Ed.), p. 568; Odgers on Libel & Slander (4 Ed.), p. 187, et seq.; Folkard on Slander and Libel, pp. 140 and 148; 25 Cyc. 401, et seq.; 18 Am. & Eng. Ency Law (3 Ed.), 1021.]

In Newell, supra, p. 568, discussing the law of qualified privilege of comment, the rule is laid down that: "If the facts as a comment upon which the publication is sought to be excused do not exist, the foundation fails."

In Burt v. Advertiser Newspaper Co., supra, l. c., p. 242 it is said: "We agree with the defendant, that...

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