Heller v. Pulitzer Publishing Company

• Decision Date: 22 December 1899
• Citation: 54 S.W. 457,153 Mo. 205
• Parties: HELLER v. PULITZER PUBLISHING COMPANY, Appellant
• Court: Missouri Supreme Court

54 S.W. 457

153 Mo. 205

HELLER v. PULITZER PUBLISHING COMPANY, Appellant

Supreme Court of Missouri, First Division

December 22, 1899

Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.

Reversed and remanded.

F. N Judson and J. Clarence Taussig for appellant.

(1) The court below erred in instructing the jury to find for plaintiff on the issue of libel or no libel, only the fact of publication being admitted, the jury thus being deprived of the power to render a general verdict on that issue of libel or no libel. Art. II, sec, 14, Constitution; Odgers on Slander and Libel (2 Ed.), p. 468; Bayles v Lawrence, 11 A. & E. 920; Cox v. Lee, L. R. 4 Exch. 288; Parmiter v. Coupland, 6 M. & W. 105; Saxby v. Easterbrook, 3 C. P. D. 339; State v. Armstrong, 106 Mo. 395; Arnold v. Jewett, 125 Mo. 241; Cooley on Const. Lim. (6 Ed.), 564; 2 Greenl. on Evid. (15 Ed.), 411; Usher v. Severance, 20 Me. 11; Drake v. State, 20 A. 46; Goodrich v. Davis, 11 Met. (Mass.) 473. (2) A peremptory instruction to find for plaintiff in an action for libel, where only the fact of publication is admitted, is not only violative of the express provision of the Bill of Rights, but in effect makes the practice in libel cases what it was in England under Lord Mansfield, when it was found necessary to enact the Fox Libel Act in 1792. See argument of Thos. Erskin in Dean of St. Asaph's case. Also argument of Hamilton and opinion of Kent, J., in People v. Croswell, 3 Johnson's cases, 337. State v. Allen, 1 McCord (S. C.), 526; State v. Syphrett, 27 S.C. 29; Drake v. State, 20 A. 746; Cooley on Const. Lim. (6 Ed.) 564-567; Shattuck v. Allen, 4 Gray, 540. The jury find the law in the issue of "libel or no libel," "under the direction," but not under the compulsion of the court. Hazy v. Waith, 23 Colo. 556; State v. Powell, 66 Mo.App. 598. (3) This error of the court in peremptorily directing a verdict on the issue of libel or no libel was not cured by giving an instruction telling the jury at the same time that they were the judges of that issue. It was simply a case of absolutely contradictory instructions. Stone v. Hunt, 94 Mo. 475; Henchen v. C'Bannon, 56 Mo. 289. (4) The court erred in refusing to permit counsel for defendant, in the course of his argument to the jury on the issue of libel or no libel, to read to the jury as part of his argument from Townshend on Slander and Libel. 19 Am. and Eng. Ency. of Law, (1 Ed.), 620; Stout v. State, 96 Ind. 407; Harvey v. State, 40 Ind. 516; Hannah v. State, 11 Lea (Tenn.), 201; 1 Thompson on Trials, sec. 945.

J. R. Myers for respondent.

(1) The Constitution of Missouri directs that in all suits and prosecutions for libel the jury shall determine the law and the fact "under the direction of the court." Art. II, sec. 14, Constitution. (2) Language which imputes to one fraud, or want of integrity in his business, is actionable per se, or a publication which imputes to a merchant or other business man conduct which is injurious to his character and standing as a merchant or business man, is a libel and implies malice. Naeinger v. Vogt, 88 Mo. 589; McGinnis v. George Knapp & Co., 109 Mo. 131; Mitchell v. Bradstreet Co., 116 Mo. 226; Callahan v. Ingram, 122 Mo. 355; Nicholson v. Rogers, 129 Mo. 136.

OPINION

MARSHALL, J.

Plaintiff in this action sues the defendant, for publishing in its paper, the St. Louis Post-Dispatch, on the eleventh of November, 1893, the following:

"HE HAS SKIPPED OUT.

"Martin Heller, a Contractor for Government Work, an Embezzler.

"Martin Heller, a contractor and builder residing at 1716 Geyer avenue, has disappeared, taking with him several thousand dollars belonging to the government and his sub-contractors. Heller is a well known stone contractor and builder and his work about town has been so satisfactorily done that he was well recommended to the officers at Jefferson Barracks, the United States Army post, when there were contracts to be let there. At present the government is doing a great deal of building at Jefferson Barracks. New quarters, large and handsome structures, are being built for the officers and men. Heller secured the contract for the stone work on all of these. The work was to have been done in sections. His work on the first building erected amounted to over $ 6,000.

"He sub-contracted for John J. McMahon, Gillick Bros., Wm. and Frank Ruprecht, Johannes Lime Company, and several others.

"It is stated that McMahon advanced him $ 1,500 to pay his (Heller's) employees, and that he did not use the money for that purpose.

"Letters were received from Heller by Messrs. McMahon, Gillick, Ruprecht and Johannes, stating that when they received his letters he would be on his way to Australia, and that he had jumped his bond and his contract with the government.

"He owes $ 500 to the Johannes Lime Company, and several hundred dollars to the Ruprechts.

"Gillick Bros. are in a measure protected, as they required him to furnish bond and they propose to hold his bondsmen.

"In the meantime Heller's employees are clamoring for their wages and it has required considerable tact on the part of the army officers in charge of the work, to keep it under way. The post is in actual need of new quarters and should the contractors not complete the work on time, they will be held to the forfeit."

Also for publishing substantially the same thing in its paper on the twelfth of November, 1893.

The answer admitted the publications, denied the other allegations of the petition, and affirmatively pleaded that plaintiff had a sub-contract for work on the Government buildings at Jefferson Barracks, which work was not completed, and that he left St. Louis, owing materialmen large sums of money for materials used on said work, and notified them that he was going to Australia, when in fact he had no such intention, and further pleaded that the matter complained of was copied from the Carondelet Progress, a reputable newspaper, published in the vicinity of the Barracks, and was published by defendant as an item of current news, believing it to be true, and without any malice towards plaintiff. Defendant also pleaded that at the plaintiff's request it afterwards published and gave equal circulation to the following retraction:

"HELLER HAS RETURNED.

"His Friends Say His Accounts Were Found to be All Right.

"In two articles published in the Post-Dispatch of November 11 and 12, 1893, it was made to appear that Martin Heller, a contractor and builder, at the time, engaged in contract work at Jefferson Barracks, had left the city, with his accounts with the principal contractors and with the Government unsettled, and that he was indebted to both. It is understood Mr. Heller returned to the city about a month ago, and he states that he left the city for the purpose of obtaining work, and that his accounts, when he left, were in proper shape and correct throughout. It is said by Mr. Heller's friends that the contracts on which he was engaged at Jefferson Barracks were complied with by him, and that the work was done in accordance with the contracts, and that there was no ground for the charges made by others, that there was any irregularity in connection with his work under those contracts, as stated in the Post Dispatch at that time. It was stated in the Post Dispatch at the time that Heller was a well-known contractor and builder, and his work in the city has been very satisfactorily done."

The reply averred that his contracts were nearly completed when he left and his willingness and offer to complete them on his return and the refusal of the original contractor to permit him to do so; denied that he had gone off with fifteen hundred dollars belonging to any one else, but averred that said sum was received from the original contractor and paid to the laborers and mechanics, and further averred that he left because of trouble with his employees about the amount of wages he should pay them, and because they threatened to kill and boycott him.

The evidence showed that the charges were partly true and partly not; that he did not go away with money belonging to any one else but because of trouble with his employees, and that he did go away owing large sums to the materialmen, and that suits were pending against him therefor at the time this case was tried in the circuit court.

Among others, the defendant asked and the court refused to give following instruction:

"The jurors are instructed that the defendant by the law is free to publish whatever it wishes to on any subject, but is responsible for all abuse of that liberty. That the court in this case gives such instructions to the jury as it deems proper; but the jury may disregard all such instructions, as they are the judges of both the law and the facts."

But instead the court gave the following instruction of its own motion:

"The jurors are instructed that the defendant by the law is free to publish whatever it wishes to on any subject, but is responsible for all abuse of that liberty. That the court in this case gives such instructions to the jury as it deems proper, but the jurors are not only the sole judges of the weight to be given to the testimony and the facts, but under the Constitution and law of Missouri you are yourselves the sole judges of the law of libel as to whether the alleged libelous publications were in fact libelous."

The court, of its own motion also gave the following instruction:

"The court instructs the jury as follows, viz.: Under the evidence adduced your verdict must be for the plaintiff on both counts of the petition; the only questions left for your decision therefore, are those relating to the amount of damages to be assessed. Damages are three kinds, viz., nominal,...