145 S.W. 480 (Mo. 1912), Cook v. Pulitzer Publishing Company

Citation145 S.W. 480, 241 Mo. 326
Opinion JudgeKENNISH, P. J.
AttorneyJudson & Green and Edward C. Crow for appellant. W. M. Williams, Silver & Dumm, and W. H. Rothwell for respondent.
Judge PanelKENNISH, P. J. Ferriss, J., and Brown, J., concur. Ferriss, J., and Brown, J., concur.
Case DateMarch 21, 1912
CourtSupreme Court of Missouri

Page 480

145 S.W. 480 (Mo. 1912)

241 Mo. 326




Supreme Court of Missouri, Second Division

March 21, 1912

Page 481

Rehearing Denied 241 Mo. 326 at 358.

Appeal from Boone Circuit Court. -- Hon. E. W. Hinton, Special Judge.


Judson & Green and Edward C. Crow for appellant.

(1) The article complained of does not impute to plaintiff a crime, and, therefore, it is not libelous per se; and, as the petition contains no allegation that any special damages were caused thereby, the article is not libelous in any sense. The petition, therefore, states no cause of action and the court should have taken the case from the jury. Heller v. Pub. Co., 153 Mo. 205; Ukman v. Record, 189 Mo. 378; Greenwood v. Colby, 26 Neb. 449; Herrington v. Ingberg, 97 N.W. 460; O'Neill v. Star Co., 106 N.Y.S. 973; Randall v. News Assn., 101 Mich. 561. (2) The article complained of contains only ordinary English words of well known and long established meaning, and it is clear that no words or clauses thereof are used in any ambiguous sense. Its meaning, therefore, could not be enlarged or extended by any innuendo. Salvateri v. Ghio, 9 Mo.App. 155; Ukman v. Record, 189 Mo. 378; Christal v. Craig, 80 Mo. 373; Dyer v. Morris, 4 Mo. 214; Callahan v. Ingram, 122 Mo. 366. (3) The article in question was a fair comment and criticism of the admitted public acts of a public officer, while in the discharge of the duties of his office, and, therefore, it was not libelous. Miner v. Post, 49 Mich. 358; Gott v. Pulsifer, 122 Mass. 235; Jackson v. Times, 162 Pa. 406; Townshend on Libel (4 Ed.), sec. 258; Newell on Libel, sec. 5, p. 567; Odgers on Libel, 33; Duffy v. Post, 96 N.Y.S. 629; Callahan v. Ingram, 122 Mo. 365. (4) The right of comment and criticism includes the right to draw reasonable and natural inferences and conclusions from admitted facts or acts; and, the facts which were the basis of this article being admitted, and there being no evidence of malice or ill-will towards plaintiff, the court should have instructed the jury to find for the defendant, because any inferences the article contains are clearly natural and reasonable conclusions from the admitted facts. Townshend on Libel (4th Ed.), sec. 258; Newell on Libel (2nd Ed.), 568; People v. Post, 54 Mich. 457; Jackson v. Times, 162 Pa. St. 406; Ingert v. Cycle Co., 73 L. J. (K. B. 1904) 754; Callahan v. Ingram, 122 Mo. 365. (5) The trial court committed reversible error in permitting the jury to determine whether the article charged plaintiff with the crime of wilful and malicious oppression and partiality, or misconduct, in his official capacity, or under color of his office, by plaintiff's instructions, because the article in question contains no such charge and no such meaning can be imputed to its language without doing violence thereto. State v. Pinger, 57 Mo. 243; State v. Grassie, 74 Mo.App. 313; Stone v. Graves, 80 Mo. 148; State v. Hein, 50 Mo. 362; State v. Mixan, 41 Mo. 210; United States v. Deaver, 14 F. 595; O'Neill v. Star, 106 N.Y.S. 973; Randall v. News Assn., 101 Mich. 561; McManus v. Jackson, 28 Mo. 56.

W. M. Williams, Silver & Dumm, and W. H. Rothwell for respondent.

(1) It is sufficient to make a written publication libelous and actionable per se that it is false and tends to expose one to public hatred, contempt and ridicule, or to blacken his reputation. Nelson v. Musgrave, 10 Mo. 648; Price v. Whitely, 50 Mo. 439; McGinnniss v. Knapp, 107 Mo. 131; Ukman v. Record, 189 Mo. 378; Manget v. O'Neill, 51 Mo.App. 26. And this is true even though the publication charges the person alleged to be defamed with no offense known to the law. Prewitt v. Wilson, 128 Iowa 202; Haynes v. Press Co., 169 Mass. 512; White v. Nichols, 3 How. 266; R. S. 1899, sec. 2259. An article is presumed to be false and published without sufficient excuse until the contrary is shown. Russell v. Anthony, 41 Kan. 451; Holmes v. Clisberg, 121 Ga. 241; McIntyre v. Bransford, 17 S.W. 359. When the publication is libelous per se its falsity and defendant's malice are presumed. Brown v. Knapp, 213 Mo. 693; Thomas v. Bowen, 45 P. 768; Sander v. Jones, 13 N.D. 527; Morse v. Pub. Co., 124 Iowa 707. (2) A defendant is liable for what is insinuated as well as for what is stated explicitly. Merrill v. Pub. Co., 197 Mass. 193; Brennan v. Tracy, 2 Mo.App. 540; State v. Norton, 89 Me. 294; Sturvelant v. Root, 27 N.H. 72; Drummond v. Leslie, 5 Blackf. (Ind.) 453; State v. Armstrong, 106 Mo. 395. (3) "A publication which falsely and maliciously charges a public officer with misconduct in office is a libel. It is libelous to impute to any one holding an office that he has been guilty of improper conduct in that office. 13 Am. & Eng. Ency. Law (1 Ed.), 309; Martin v. Paine, 69 Minn. 482. Words which impute a want of integrity to any one holding an office of confidence or trust are per se actionable. Pub. Co. v. Read, 13 Ky. L. Jour. 323; Scougale v. Sweet, 124 Mich. 323; Hiller v. Duff, 62 N. J. L. 101; Collins v. Pub. Co., 74 N.Y.S. 78; Tarraber v. Tribune, 36 Minn. 591; Wofford v. Meeks, 129 Ala. 349; Cramer v. Riggs, 17 Wend. 209; Russell v. Anthony, 21 Kan. 457. (4) The article sued on is not a fair comment and criticism of the public acts of plaintiff as Secretary of State, and is not non-libelous for that reason. It assails his motives and his personal integrity in that it charges him with neglect of a public duty because of favoritism and partiality, that is, imputes to him flagrant malfeasance in office. 25 Cyc. 402; 24 Cyc. 401; Bearce v. Bass, 88 Me. 521; Negley v. Farrow, 60 Md. 177; Curtis v. Mussey, 6 Gray 273; Haynes v. Printing Co., 169 Mass. 515; Newell on S. & L., 69; Russell v. Anthony, 21 Kan. 417; Shepherd's Case, 177 Mo. 244. The intentions and motives of a person are questions of fact to be submitted to the jurors. This is true, both in civil and criminal causes. Vansicle v. Brown, 68 Mo. 634; State v. Williams, 95 Mo. 247. The question of intent may never be ruled as one of law, but should always be submitted to the jury. People v. Flack, 125 N.Y. 324. Whether the publication complained of was a fair comment on and criticism of the public acts of plaintiff as a public officer, was, on the most favorable view of the matter, a question for the jury, as the trier of the facts. "A better view therefore, seems to be that it is only when the publisher goes beyond the limits of fair criticism that his language passes into the region of libel, and the question whether those limits have been transcended, is one for the jury." 18 Am. & Eng. Ency. Law (2d Ed.), 1021-2; Trigg v. Printing Co., 179 N.Y. 154; Fay v. Harrington, 176 Mass. 270. (5) Defendant's demurrer to the evidence interposed at the close of plaintiff's case in chief, was rightly overruled; besides, the defendant having proceeded with its case, the case now stands for testing its sufficiency on all the evidence in the case. Klockenbrink v. Railroad, 172 Mo. 683; McGinnis v. Knapp, 109 Mo. 131; 18 Am. & Eng. Ency. Law (2 Ed.), p. 994; Sanderson v. Caldwell, 45 N.Y. 401; Warner v. Southall, 4 Ex. L. R. 284. (6) "The rule has, however, been for more than a century, that innuendoes and colloquia are sufficient if the inference they seek to raise is at all admissible, and that the question whether the expressions used were designed by the defendant to apply to the person to whom it is charged they were intended to apply, is a question of fact for the jury." State v. Powell, 66 Mo.App. 614; Scofield v. Press Co., 126 Wis. 81; McGinniss v. Knapp, 109 Mo. 139; 13 Pl. & Pr. 55; Gaither v. Adv. Co., 102 Ala. 462; Blagg v. Sturt, 59 Eng. Com. L. 899; Peterson v. Sentman, 37 Md. 140; Argabright v. James, 46 W.Va. 144; Pollard v. Lyon, 91 U.S. 233; Ukman v. Record, 189 Mo. 393. The amended petition in this case sets forth, as was necessary for the pleader to do, the prefatory statements that the plaintiff was Secretary of State, an office of public trust, from the first Monday in January, 1901, to January 9, 1905; that as such officer it was his duty to examine the banking institutions of the State, their financial conditions and methods, and to require them to observe the law relating to and governing said banking institutions; that the Salmon Bank was one of said banking institutions doing business at Clinton in Henry county, Missouri, during plaintiff's term of office; that on June 28, 1905, the defendant, having reference to said Salmon Bank, and plaintiff's connection therewith, published of and concerning plaintiff the article complained of. Without these prefatory statements the article would have been obscure and the references and allusions therein would not have been plain or certain, hence the necessity of the prefatory averments, the inducement in the petition. With these prefatory averments giving application and explanation to the matter of the article complained of, the explanatory meaning given by the innuendo was warranted. Peterson v. Sentman, 37 Md. 140; Argabright v. James, 46 W.Va. 444; Pollard v. Lyon, 91 U.S. 233; Ukman v. Record, 189 Mo. 378.

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


Page 482

[241 Mo. 334] KENNISH, P. J.

This is an appeal from a judgment in an action for libel. The suit was brought in the circuit court of Cole county. On the application of the defendant a change of venue was awarded to [241 Mo. 335] the circuit court of Boone county, where, upon a trial, at the January term, 1906, a verdict was returned in favor of plaintiff for fifty thousand dollars, twenty-five thousand as compensatory damages and a like sum as punitive damages. Judgment was rendered accordingly and defendant appealed to this court.

By way of inducement and colloquium it is alleged in the petition substantially...

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