Seested v. Post Print. & Publ. Co.

• Decision Date: 14 October 1930
• Docket Number: No. 28151.,28151.
• Citation: 31 S.W.2d 1045
• Court: Missouri Supreme Court
• Parties: FRANK C. SEESTED v. POST PRINTING & PUBLISHING COMPANY, Appellant.

31 S.W.2d 1045

FRANK C. SEESTED v. POST PRINTING & PUBLISHING COMPANY, Appellant.

No. 28151.

Supreme Court of Missouri.

Division One, October 14, 1930.

Appeal from Jackson Circuit Court. — Hon. E.E. Porterfield, Judge.

AFFIRMED (upon condition).

Frank M. Lowe and Henry L. Jost for appellant.

(1) The amendments to the original petition, permitted over defendant's objections, were improperly allowed, since the article sued on was not libelous on its face, and if libelous, at all, was so, because of extrinsic facts and innuendoes pleaded; and the amended petition materially changed and altered the cause of action in that particular, and said amendments constituted a departure, and subjected the amended petition to the defense that such new cause of action was barred by the Statute of Limitations. Laughlin v. Laughlin, 232 S.W. (Mo.) 121; Bernard v. Mackie, 89 Mo. App. 403; Sec. 1319, R.S. 1919. (2) The article on its face has unmistakable reference to conditions existing prior to the entry of the United States Government into the World War, and is therefore not libelous per se. The Von Bernstorff, Von Papen and Von Igel activities referred to in the article sued on, are historical facts, and also under the agreement of the parties shown in the record, occurred long prior to the time that the United States Government declared war against Germany; therefore, plaintiff had a perfect legal and moral right to make contributions to said parties and the organizations with which they were connected for the furtherance of the German cause in the war then in progress between Germany and other nations of Europe, and having such right so to do, it was not and could not be libelous to charge plaintiff with having done so. Kegerreis v. Von Zile, 167 N.Y. Supp. 874; Galveston, etc., Ry. v. Blankenfield, 211 S.W. (Tex. Civ. App.) 808; Siemund v. Schmidt. 168 N.Y. Supp. 935; 23 C.J. 116, 119; Howell v. Sherwood, 242 Mo. 529; Chavez v. Times-Mirror Co., 195 Pac. (Calif.) 668; 36 C.J. 1165; Mellen v. Times-Mirror Co., 195 Pac. (Calif.) 278; McKee v. Armstrong, 182 Pac. (Okla.) 497; State v. Darwin, 115 Pac. (Wash.) 312; Furlong v. German-American Press Assn., 189 S.W. (Mo.) 385. (3) The article on its face being not libelous per se, can only be made so, if at all, by pleading extrinsic facts and innuendoes imputing thereto a libelous sense. Diener v. Chronicle Co., 230 Mo. 625; Furlong v. German-American Press Assn., 189 S.W. 389; Smith v. Mo. F. & Cas. Co., 190 Mo. App. 452; 36 C.J. 1149; Keating v. Conviser, 217 N.Y. Supp. 117; Colby Haberdasher v. Bradstreet, 166 N.E. (Mass.) 552; Flowers v. Smith, 214 Mo. 136; McKimm v. Moore, 291 Mo. 697; Cook v. Pulitzer Pub. Co., 241 Mo. 344; Legg v. Dunlevy, 10 Mo. App. 461, 80 Mo. 558; 37 C.J. 64, 70; Ukman v. Daily Record, 189 Mo. 394. (4) The court erred in permitting plaintiff to testify over defendant's objections that his son served the Government during the World War in the aviation service; that his wife was active in buying Liberty and Baby Bonds, and that his little girl sold Red Seal Stamps, since such evidence was not material to any issue and tended to excite the sympathy of the jury for plaintiff and increase damages. 18 Amer. & Eng. Ency. Law (2 Ed.) 1105; Perrine v. Winters, 73 Iowa, 645; Bishop v. N.Y. Times Co., 135 N.E. (Mass.) 850; Stevens v. Snow, 214 Pac. (Cal.) 971; Franklin v. Kansas City, 213 Mo. App. 159; Dennison v. Daily News Pub. Co., 118 N.W. (Nebr.) 568, 23 L.R.A. (N.S.) 362. (5) The court improperly and prejudicially criticized defendant's counsel, Mr. Lowe, during his argument to the jury, and erred in refusing defendant's motion to discharge the jury on that account. 21 Ency. Pl. & Prac. 994; Rooker v. Deering, etc. Ry., 206 Mo. App. 84; State v. Davis, 217 S.W. (Mo.) 91; Landers v. Railroad, 134 Mo. App. 88; Wair v. Amer. Car & Foundry Co., 285 S.W. 158; Shepard v. Brewer, 248 Mo. 133; Kribs v. Light, Heat & Power Co., 215 S.W. 763. (6) The verdict is grossly excessive and unconscionable, and the result and product of passion and bias on the part of the jury against defendant. Cook v. Globe Ptg. Co., 227 Mo. 471; Sotham v. Drovers Telegram Co., 239 Mo. 606; Orchard v. Globe Prtg. Co., 240 Mo. 592.

R.R. Brewster, Watson, Gage & Ess and Madden, Freeman & Madden for respondent.

(1) Appellant's objection to the introduction of evidence was properly overruled. (a) The exception of appellant to the order granting leave to amend has been waived and is not preserved for review before this court, since no term bill of exceptions was filed. Mutual Life Ins. Co. v. Tuemler, 251 S.W. 728; Lynch v. Railroad, 208 Mo. 36; Nichols v. Stevens, 123 Mo. 119; Hynds v. Hynds, 253 Mo. 20; Sotham v. Telegram Co., 239 Mo. 606; Parkyne v. Churchill, 246 Mo. 109; Dickey v. Webster County, 318 Mo. 821; Forrister v. Sullivan, 231 Mo. 345. (b) Appellant, having pleaded to the merits, without filing a motion to strike, waived any alleged departure, Schroeder v. Edwards, 267 Mo. 482; Forrister v. Sullivan, 231 Mo. 352; Von Eime v. Fuchs, 8 S.W. (2d) 826. (c) The Statute of Limitations, unpleaded in the answer, and the bar thereof not appearing upon the face of the amended petition, is not available as a defense to appellant before this court. Sanders v. Johnson, 287 S.W. (Mo.) 427; Jones v. Munroe, 231 S.W. 1069; McDermott v. Claas, 104 Mo. 21; Munford v. Sheldon, 9 S.W. (2d) 909; American Radiator Co. v. Plumbing & Heating Co., 277 Mo. 548. (d) The amendment, by erasure and interlineation, was proper and did not constitute a departure. Ukman v. Daily Record Co., 189 Mo. 393; Callahan v. Ingram, 122 Mo. 355; Newell on Slander and Libel (4 Ed.) 578, 588, 599, 590; Julian v. Kansas City Star Co., 209 Mo. 35; Farley v. Publishing Co., 113 Mo. App. 216; Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Cook v. Publishing Co., 241 Mo. 326; Hudson v. Garner, 22 Mo. 423; Sotham v. Telegram Co., 239 Mo. 606. (2) The publication sued upon is actionable upon its face without the necessity of pleading extrinsic facts. This publication must be construed from the viewpoint of the reading public. Cook v. Printing Co., 227 Mo. 527; Stevens v. Snow, 214 Pac. 968; Dusabek v. Martz, 249 Pac. 145. The test is not whether the article charged a violation of law on the part of respondent, but whether the article was such as to provoke respondent to wrath, expose him to public hatred, contempt, or ridicule, or deprive him of public confidence and social intercourse. Mawe v. Pigott, Ir. R. 4 C.L. 54; Diener v. Publishing Co., 232 Mo. 433; 36 C.J. 1165; Stevens v. Snow, 214 Pac. 969; Dusabek v. Martz, 249 Pac. 148; State v. Darwin, 115 Pac. 312; Bennet v. Advertiser Assn., 230 N.Y. 125, 129 N.E. 343; Cohen v. New York Times Co., 138 N.Y. Supp. 206; Knapp v. Green, 256 Pac. (Kan.) 154. This publication was defamatory upon its face, without the necessity of pleading or submitting extrinsic facts by way of inducement or innuendo, and was properly submitted to the jury for the finding of libel or no libel. Knapp v. Green, 256 Pac. 153; Switzer v. Anthony, 206 Pac. 391; Choctaw Coal & Mining Co. v. Lillich, 86 So. (Ala.) 383; Garven v. Finch, 116 Atl. (N.J.) 771; Peck v. Publishing Co., 259 Pac. 307; Bratcher v. Gernert, 185 Pac. 1082; Pignatelli v. New York Tribune, 192 N.Y. Supp. 605; Lewis v. Daily News, 81 Md. 466; Van Lonkhuyzen v. Daily News Co., 161 N.W. (Mich.) 979; Wilkes v. Shields, 64 N.W. (Minn.) 921; Chavez v. Times Co., 195 Pac. (Cal.) 666; Over v. Hildebrand, 92 Ind. 19; Massuere v. Dickens, 70 Wis. 83; Moley v. Barager, 77 Wis. 43; Buckstaff v. Viall, 84 Wis. 129; Cooper v. Greeley, 1 Denio (N.Y.) 347; Moffatt v. Cauldwell, 3 Hun (N.Y.) 26; Cerveny v. Daily News, 139 Ill. 345; Byrne v. Matthews, 109 N.Y. 662; 36 C.J. 1173; Snyder v. New York Press, 121 N.Y. Supp. 944; Herald News Co. v. Wilkinson, 239 S.W. 297; Patterson v. Evans, 254 Mo. 307; Julian v. Kansas City Star. 209 Mo. 35; Cook v. Printing Co., 227 Mo. 471; Sotham v. Telegram Co., 239 Mo. 606; Tilles v. Publishing Co., 241 Mo. 609; Morris v. Sailer, 154 Mo. App. 305; Ukman v. Daily Record Co., 189 Mo. 378; Callahan v. Ingram. 122 Mo. 355; Eby v. Wilson, 315 Mo. 1214. (3) The testimony relative to respondent's family was properly admitted, and such admission is not error. (a) This evidence tended directly to negative the charge of disloyalty made against respondent by this publication. 37 C.J. 86, 78; Davis v. Hearst, 160 Cal. 143; Children v. Shinn, 168 Iowa, 531; Brandt v. Morning Journal, 80 N.Y. Supp. 1002, 177 N.Y. 544; McCloskey v. Publishing Co., 152 Mo. 339. (b) This evidence was directly material to the issue of malice in fact and punitive damages. 37 C.J. 78. (c) This evidence was directly material to the issue of respondent's suffering and humiliation, and, hence, to the issue of actual damages. Dennison v. Publishing Co., 82 Neb. 675, 118 N.W. 568; Sheftall v. Railway Co., 123 Ga. 587; Clements v. Maloney, 55 Mo. 352; Klumph v. Dunn, 66 Pa. 141; Enos v. Enos, 135 N.Y. 609; Rhodes v. Naglee, 66 Cal. 677; Cahill v. Murphy, 94 Cal. 29; Dixon v. Allen, 69 Cal. 527; Barnes v. Campbell, 60 N.H. 27; Smith v. Hubbell, 142 Mich. 637; 23 L.R.A. (N.S.) 362; Larned v. Buffington, 3 Mass. 546; Stevens v. Snow, 214 Pac. 968. (d) The evidence going no further than to show the loyalty of respondent and his family, a matter which the law presumes and which was common to all the families of loyal American citizens, it could not be deemed prejudicial to appellant. Banks v. Taft, 174 N.W. 576; Span v. Coal & Mining Co., 16 S.W. (2d) 200. (4) The amount of the verdict and judgment in this cause is not excessive. Cook v. Printing Co., 227 Mo. 471; Evans v. Star Co., 209 N.Y. Supp. 267. (a) The amount allowed by way of actual damages was proper and reasonable in view of the actual damage suffered by respondent as a result of this publication. (b) The amount allowed in punitive damages was undeniably proper in view of the admitted falsity of the...