Anton v. St. Louis Suburban Newspapers, Inc.

• Decision Date: 04 March 1980
• Docket Number: No. 41257,41257
• Citation: 598 S.W.2d 493
• Parties: 5 Media L. Rep. 2601 Don ANTON, Appellant, v. ST. LOUIS SUBURBAN NEWSPAPERS, INC., et al., Respondents.
• Court: Missouri Court of Appeals

Page 493

598 S.W.2d 493

5 Media L. Rep. 2601

Don ANTON, Appellant, v. ST. LOUIS SUBURBAN NEWSPAPERS, INC., et al., Respondents.

No. 41257.

Missouri Court of Appeals, Eastern District, Division Three.

March 4, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 18, 1980.

Application to Transfer Denied June 10, 1980.

Jay G. Newquist, St. Louis, for appellant.

Robert B. Hoemeke, St. Louis, for respondents.

REINHARD, Judge.

Plaintiff, Don Anton, instituted this suit for libel against St. Louis Suburban Newspapers and its owner and publisher, Frank C. Bick. In Count I of his petition plaintiff prayed for $50,000 actual damages and $1,000,000 punitive damages against the defendant newspaper. In Count II, he prayed for a like sum against the owner-publisher. Defendants moved jointly to dismiss the action; the trial court sustained the motion and ordered that the suit be dismissed. Plaintiff appeals from the order dismissing the action.

In Count I of the First Amended Petition, plaintiff alleged: ¹

1. That the Defendant, the St. Louis Suburban Newspapers, Inc. d/b/a South County Journal is a corporation duly organized under the laws of the State of 2. That the Plaintiff is a duly licensed and practicing Attorney in St. Louis County, Missouri, and has always maintained and enjoyed a good reputation in such profession.

Missouri, and is engaged in the publishing of a newspaper called the South County Journal.

3. That on June 28, 1978, said defendant published in said South County Journal the following false, malicious and libelous language of and concerning the Plaintiff:

"This sleazy sleight-of-hand has been the work of Don Anton (the Plaintiff herein) . . ."

A true copy of said June 28, 1978 article in its entirety is incorporated herein by reference and attached hereto as Exhibit A.

4. And again on July 5, 1978, said Defendant published in said South County Journal the following false, malicious and libelous language of and concerning the Plaintiff:

" . . . it becomes abundantly obvious the administrative coup has been carefully orchestrated by Richard Walker, president of the discredited Local 398 of the International Association of Firefighters and his henchman attorney Don Anton (the Plaintiff herein) . . . Residents there (Affton) are telling Walker, Anton (Plaintiff herein) and their bunch they want no part of these sleazy dealings."

A true copy of said July 5, 1978 article in its entirety is incorporated herein by reference and attached hereto as Exhibit B.

5. That the aforesaid words published by said defendant were read and understood by the general public to have their ordinary meaning about the Plaintiff, as follows; that he is an unscrupulous supporter or adherent of a political figure; and that he is motivated by the hope of personal gain; and that he is an associate in crime.

6. The aforesaid words were published by said defendant with said defendant's knowledge that the words were false or with reckless disregard of whether they were false or not so that said defendant entertained serious doubt as to the truth of its said publications.

7. That the aforesaid words published by said defendant then and there did, still do and will in the future continue to provoke the plaintiff to wrath and expose him to public hatred, contempt and ridicule and the aforesaid words have greatly injured and damaged plaintiff's reputation both as a professional attorney and thereby diminished his earnings and as an individual and have also deprived him of the benefits of public confidence and social associations.

8. That the said defendant has with actual malice on prior occasions published defamatory words about the Plaintiff repeatedly to such an extent to show a deliberate pattern to libel plaintiff.

The alleged libelous publications were attached as exhibits to the petition. ²

In defendants' motion to dismiss the petition, they alleged that the newspaper statements failed to constitute malicious defamation as a matter of law, that the statements were fair comment and privileged, that the statements were opinions which were constitutionally protected by the first amendment, and that plaintiff's ad damnum clause was defective. ³ The court

sustained the motion without specifying on which ground it was dismissing. On appeal, we must resolve if the facts pleaded, together with the reasonable inferences to be drawn therefrom, when viewed in the light most favorable to plaintiff, involve substantive principles of law which entitle plaintiff to relief. Hunt v. Gerlemann, 581 S.W.2d 913, 915 (Mo.App.1979). We must affirm the circuit court's order dismissing the action if any of the grounds asserted for dismissal are valid. Butler v. Circulus, Inc., 557 S.W.2d 469, 471 (Mo.App.1977). We disagree with defendant's contention that the alleged libelous statements failed to constitute malicious defamation as a matter of law, however, find that the trial court correctly sustained defendant's motions because the libelous statements were afforded a constitutional privilege.

I. Libel Per Se

There are two types of libel actions, ⁴ libel per se and libel per quod. See Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 777 (Mo. banc 1976). To be actionable per se, the words must be defamatory on their face without the aid of extrinsic proof. Langworthy v. Pulitzer Publishing Co., 368 S.W.2d 385, 388 (Mo.1963). Where words are actionable per se, the petition need not allege special damages. Id. Plaintiff has not alleged special damages and concedes that his petition would be insufficient unless the alleged libelous words are found to be libel per se. The Missouri Supreme Court said in Langworthy v. Pulitzer Publishing Co.:

In determining whether language is libelous per se, it must be viewed stripped of any pleaded innuendo. The meaning of the phrase "per se" is "taken alone, in itself, by itself." Words which are libelous per se do not need any innuendo, and, conversely, words which need an innuendo are not libelous per se.

368 S.W.2d at 388-89 quoting Shaw Cleaners & Dryers, Inc. v. Des Moines Press Club, 215 Iowa 1130, 245 N.W. 231, 233 (1932). Whether words are libelous per se is a question of law which the court may properly decide on a motion to dismiss. Missouri Church of Scientology v. Adams, 543 S.W.2d at 777.

Plaintiff contends that the language of the article is directed toward him in his professional capacity. In Brown v. Kitterman, 443 S.W.2d 146 (Mo.1969) the court stated:

(F)alse words which tend to prejudice the person spoken of in his business, profession, office, occupation, or employment, are actionable without proof of special damages if they affect him in such calling in a manner that may, as a necessary consequence, or does, as a natural consequence, prevent him from deriving therefrom that pecuniary reward which, probably he might have obtained. . . . (T)o be actionable per se that words must be defamatory of the plaintiff in such calling in that they impute fraud, want of integrity or misconduct in the line of his calling.

Id. at 154. It has long been settled in Missouri that "(o)ral or written words . . . which charge (an attorney) with dishonest or improper practices in the performance of his duties as an attorney are actionable per se." Moritz v. Kansas City Star Co., 364 Mo. 32, 258 S.W.2d 583, 588 (banc 1953). Further, we recognize that: "To render words spoken or written of and concerning an attorney actionable per se as being injurious In deciding whether the words or the statements alleged to be libelous per se are in fact defamatory, they must be read in connection with the whole publication rather than in isolation, Thomson v. Kansas City Star Co., 387 S.W.2d 493, 496 (Mo.1965), and they must be taken in their plain and ordinary meaning or as they would be generally understood by those to whom they are addressed. Hylsky v. Globe Democrat Publishing Co., 348 Mo. 83, 152 S.W.2d 119, 122 (1941). We now consider the editorials of June 28, 1978 and July 5, 1978 in light of the above enunciated principles.

to him professionally, they must affect him in his professional character, and impute incompetency, dishonesty, or misconduct, incompatible with the proper conduct of his profession." 50 Am.Jur.2d Libel and Slander § 122 (1970).

The June 28th editorial contains, among others, the following statements: 1.) that the Affton Fire Protection District's Board of Directors is now entirely composed of three appointed officials rather than three elected ones, and that the non-elected board has "disposed of the district attorney . . . and hired Don Anton as lawyer . . ."; 2.) that one of the elected officials left his post because of "threats against his family and acts of vandalism on his home"; 3.) that "(t)o add insult to injury, this entire 'coup' apparently was accomplished illegally"; because the board met in unannounced, secret meetings in violation of the state's Sunshine Law; and 4.) that "(t)his sleazy sleight-of-hand has been the work of Don Anton. . . ."

Does defendants' statement "this sleazy sleight-of-hand has been the work of Don Anton," ⁵ when stripped of any possible innuendos and read in light of the entire article, affect him in his professional character and impute to him incompetency, dishonesty, or misconduct incompatible with the proper conduct of his profession? We believe it does because the language could be interpreted to imply that plaintiff participated in acts (the threats and vandalism) which caused one Board member to leave office and that as a result of these actions plaintiff was hired as attorney for the district. Such conduct, if true, would be incompatible with the proper conduct of a lawyer. We thus conclude that plaintiff's petition alleges a claim in libel per se.

The July 5th editorial refers to an obvious administrative "coup" orchestrated by Walker, president of Local 398 of the International Association of Firefighters,...