Clark v. McBaine

• Decision Date: 06 April 1923
• Docket Number: No. 23186.,23186.
• Citation: 252 S.W. 428,299 Mo. 77
• Parties: CLARK v. McBAINE et al,
• Court: Missouri Supreme Court

252 S.W. 428

299 Mo. 77

CLARK v. McBAINE et al,

No. 23186.

Supreme Court of Missouri, Division No. 11.

April 6, 1923.

Rehearing Denied June 8, 1923.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by George L. Clark against J. P. McBaine and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals. Affirmed.

Ralph T. Finley and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for appellant.

Boyle Gordon Clark, of Columbia, and Guthrie & Conrad, of Kansas City, for respondents.

Statement.

WOODSON, C. J.

The plaintiff instituted this suit in the circuit court of Saline county against the defendants to recover $50,000 damages, $25,000 actual and $25,000 punitive damages, for the publication against him of a certain libelous article set out in the petition and made the basis of this suit. To the petition filed by the plaintiff, the defendants filed a general demurrer, stating that petition did not state facts sufficient to constitute a cause of action against them. The demurrer, coming on thereafter for hearing, was by the court taken up and considered, and by the court sustained. Upon the plaintiff declining to plead further, the court rendered judgment therein for the defendants. After moving unsuccessfully for a new trial, the plaintiff in due time and proper form appealed the cause to this court.

The second amended petition Sled in the cause was as follows:

Now comes the plaintiff, by leave of court first had and obtained, and for his second amended petition states that he is a graduate of Kenyon College, Indiana University Law School, and of the Harvard Law School, and is a duly licensed attorney at law; that since his graduation he has been engaged in teaching law in various law schools and universities of the United States, and has made that his profession and vocation; that in connection with and as an aid to his said work of teaching he has also been engaged in writing law books, and that since September 1, 1913, he has been employed by the University of Missouri as a professor of law, in the School of Law of the University of Missouri; that the board of curators, being the governing body of the University of Missouri, has power to dispense with the services of any professor in the University, with or without cause, at any time; that on or about November 24, 1920, the board of curators of said University dispensed with plaintiff's services as a professor in said law school after December 21, 1920, and that at said time gave him notice that on the expiration of his annual contract, on September 1, 1921, his connection with said University would cease.

The plaintiff further states that said action of said board of curators did not deprive the plaintiff of his salary as such professor of law prior to September 1, 1921, and the action of said board was taken without notice to him, and not at his request and that shortly thereafter, to wit, on or about January 23, 1921, there was published in the St. Louis Post-Dispatch, a daily newspaper of wide circulation in the state of Missouri and elsewhere, an article in which was quoted a statement or letter, written by plaintiff, dated December 2, 1920, addressed to H. V. Tyler, secretary of the American Association of University Professors at Cambridge, Mass., in which letter he stated that, in connection with the said action of the board of curators, no charges had been made against his character or against his efficiency and competency as a teacher of law, and that the failure to make any such charges as a basis for said board's action was an implied admission that no such grounds existed as a basis for the action taken by said board, and that on or about January 24, 1921, said article, including said letter of plaintiff, was copied and published in the Columbia Daily Tribune, a newspaper of general circulation in the city of Columbia, Mo., as well as in other papers in the state of Missouri.

The plaintiff further states that said article so published in the St. Louis Post-Dispatch, as aforesaid, is as follows:

                       "Prof. Clark Tells of His Dismissal from
                                      University
                      "Instructor in Law Announces He Has Asked
                           Board of Curators of M. S. U. to
                                  Reconsider Action
                       "Replies to Charges Contained in Letter
                    "Denies Disloyalty to Institution and Recounts
                             Circumstances He Thinks Led
                                Up to Present Situation
                

"Prof. George Luther Clark, of Columbia, Mo., yesterday made it known for publication that he was summarily dismissed from service as a law professor of the Missouri State University at Columbia, Nov. 29, last, and that he had decided to ask the board of curators to reconsider his dismissal. One charge was that he was disloyal to Dr. A. Ross Hill, president of the University.

"Prof. Clark's salary as a professor of law is $3,600 a year. Under the terms of his employment he will draw his salary until next September, but the dismissal to take effect at that time was supplemented by a suspension, so that he is not now permitted to teach at the University.

"Shows Copy of Letter.

"He gave out this copy of a letter which he mailed to the board of curators last Friday afternoon:

"`I acknowledge receipt of your letter of Nov. 29, 1920, informing me that I had been dismissed from my professorship for: (1) Disloyalty to the president of the University; (2) lack of confidence by students in my fairness; (3) declining usefulness as a professor to the University. The order upon which your letter was based is a public record by R. S. Mo. '19, § 11544.

"'I now remind you that I have had no opportunity to defend myself before you, or any other tribunal, from the charges in your letter. I also remind you that it is contrary to the custom of American universities to discharge a professor, for causes alleged, without a hearing.

"`Please regard this letter as a deliberate and sincere denial: (1) That prior to Nov. 29, was disloyal to the president in the sense that I was disloyal to the University; (2) that before Nov. 29 I was unfair as a professor or that any considerable number of students deemed me unfair; (3) that before Nov. 29 my usefulness to the University had declined.

"`In view of all the foregoing, I request that you rescind the order of dismissal referred to in your letter of Nov. 29, and that you either (1) reinstate me as a professor of law, or else (2) substitute for the rescinded order another order having the effect of a temporary suspension, together with a specification of charges similar to those in your letter of Nov. 29, and the designation of a convenient time for a hearing on those charges.

"`I submit herewith a letter from Prof. Tyrrell Williams of St. Louis which I offer as an inducing argument in support of this request of mine.'

"Prof. Williams, referred to in the letter, is the acting dean of the Law Department of Washington University. It was on a letter 1:;,f advice written by him as a friend that Prof. Clark decided to ask that the curators give him a hearing.

"Tells Version of Causes.

"Since his dismissal Prof. Clark has received letters from many former members of the University faculty. In writing to Prof. H. V. Tyler, secretary of the American Association of University Professors, and member of the faculty of the Massachusetts Institute of Technology, Prof. Clark gave his version of the causes leading to his dismissal. He wrote:

"`You will notice that the chief reason assigned for my summary dismissal is, "active and persistent disloyalty to the president." There are only two matters which could by the widest stretch of language be called disloyalty to the president, and both of them were —I still firmly believe—actuated by the most thoroughgoing loyalty to the University. In June, 1919, while I was on a short trip East, a letter reached me at Cambridge, Mass., from the secretary of the board of curators, asking me my opinion of President Hill, stating that there was an investigation, and anything that I wrote would be confidential. I thereupon, considering it was my duty under the circumstances to give my honest opinion, did so. In spite of the assurance to me from the board that the letter would be kept in strict confidence, President Hill saw the letter, and it is, I understand, one of the causes of my dismissal.

"`The other incident happened this last June. A group of the faculty, including myself, feeling that President Hill had so lost the confidence of his faculty that he had become a serious obligation to the University, decided to attempt to find out how serious the dissatisfaction was, expecting, if we found it to be widespread and acute, to try to bring about his resignation. Before the investigation had proceeded very far we were induced by other members of the faculty to agree to an arrangement whereby a committee of 10 members of the faculty should go to the president and seek to persuade him to adopt a different attitude towards the faculty. This committee did wait upon the president, told him of the dissatisfaction, and he agreed to a policy of reform. With that we all acquiesced and supposed the incident closed.

"`In regard to the charge of "the lack of confidence on the part of students in your fairness," it is not only trivial, but has no foundation in fact. In the seven and one-half years that I have taught here only one student has, so far as I know, made any such complaint, and that was nearly seven years ago. The failure to make any other charge—either against my character or efficiency—is, of course, an implied admission that no such ground exists. In fact, up till about two years ago, when I apparently offended President Hill by opposing a three-term calendar for the university, he had spoken in the most complimentary terms of me to the board of curators and others.

"`In view of the above circumstances, I respectfully ask that an...