Becker v. Brinkop and Heil, 23040.

• Decision Date: 05 February 1935
• Docket Number: No. 23040.,23040.
• Citation: 78 S.W.2d 538
• Parties: MRS. FRANK A. BECKER, APPELLANT, v. HARRY BRINKOP AND JOHN J. HEIL, RESPONDENTS.
• Court: Missouri Court of Appeals

78 S.W.2d 538

MRS. FRANK A. BECKER, APPELLANT, v. HARRY BRINKOP AND JOHN J. HEIL, RESPONDENTS.

No. 23040.

St. Louis Court of Appeals. Missouri.

Opinion filed February 5, 1935.

Appeal from the Circuit Court of the City of St. Louis. — Hon. John W. Calhoun, Judge.

REVERSED AND REMANDED.

Earl M. Pirkey for appellant.

(1) Libel is defined in the case of McCloskey v. Pulitzer Publishing Co., 152 Mo. 345. (2) This definition has been followed to the present time and is now the stereotyped accepted definition of libel. Sotham v. Telegram Co., 239 Mo. 622. (3) It is libelous per se to publish any printing or picture indicating that a person is a liar. Riley v. Lee et al., 21 Am. St. Rep. 362, par. 3. (4) This is a leading case and strikingly similar to the case at bar. It is libelous to publish of one that he is a liar. Gatley on Libel and Slander (1924 Ed.), p. 22, line 1. (5) It is actionable to charge one in writing with being a liar. Townsend on Slander and Libel (4 Ed.), p. 207, sec. 177, line 1. (6) To publish by printing, writing, sign or effigy that a man is a liar is libelous. Newell on Slander and Libel (4 Ed.), p. 14, par. 31. To the same effect are the following cases: Colvard v. Black, 110 Ga. 646; Cooper v. Stone, 24 Wendel (N.Y.) 441, line 7; Allen v. Wortham, 13 S.W. 74, col. 1; Cooley on Torts (Students Ed.), p. 213, line 4, and on p. 240. Any sort of false charge published against a candidate is libelous per se. Smith v. Burrus, 106 Mo. 103; Orchard v. Globe Printing Co., 240 Mo. 575. (7) There is another reason to support the amended petition and that is this. McGinnis v. Geo. Knapp & Co., 109 Mo. 139. (8) It is not necessary to allege that a libelous article in a newspaper was read by any one. Brian v. Harper, 144 La. 586. (9) This same principle would apply to a printed circular distributed generally to a large number of people. Section 4366, Revised Statutes of Missouri 1929, defines a libel. This is a criminal section but our Supreme Court has always held that this definition is applicable in a civil case. McClosky v. Pulitzer Pub. Co., 152 Mo. 349, line 1; Sotham v. Telegram Co., 239 Mo. 622; Julian v. Kansas City Star, 209 Mo. 90, where the instruction is set at page 92 and on page 93, line 4, where it is held the definition is correct. Sec. 4368, R.S. 1929, defines publication.

Kratky, Soffer, Nessenfeld & Cox, for respondent Harry Brinkop.

Karl Kimmel for respondent John J. Heil.

(1) The demurrer was properly sustained because no publication by defendant was alleged. Plaintiff merely alleged that defendants caused the writing to be distributed. (a) It is essential to plaintiff's cause of action in libel or slander suits that there be a publication or communication of the alleged defamatory content. Dobbin v. Chicago, R.I. & P. Ry. Co., 157 Mo. App. 689, 138 S.W. 682; Harbison v. Chicago, R.I. & P. Ry. Co., 327 Mo. 440, 37 S.W. (2d) 609; Traylor v. White, 185 Mo. App. 325, 170 S.W. 412; Walker v. White, 192 Mo. App. 13, 178 S.W. 254; Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W. (2d) 255. (b) There is no cause of action unless some person to whom defendant causes the delivery of the writing to be made sees or hears or understands the writing. Odgers, Libel & Slander (6 Ed.), pp. 131-132; Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265; Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505; Gambrill v. Schooley, 93 Md. 48, 48 Atl. 730. (c) Unless a publication or communication be pleaded plaintiff has stated no cause of action. Dobbin v. Chicago, R.I. & P. Ry. Co., 157 Mo. App. 689, 138 S.W. 682; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747. (d) The mere opportunity to read the writing, if it existed, is not sufficient; plaintiff must plead and show that it was read. McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; Steele v. Edwards, 15 Oh. Cir. Ct. 52, 8 Oh. Cir. Dec. 161; Prescott v. Tousey, 18 Jones & Spencer (N.Y.) 12, 14. (2) The demurrer was properly sustained because the writing, read as a whole, was not libelous per se and no allegations of special damage were made. (a) To determine whether a writing is libelous per se the writing as a whole must be read and construed. Petty v. Nelson, 170 Mo. App. 17, 155 S.W. 865; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143; Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6. (b) The writing here involved does not constitute defamation. Unless there is a malicious defamation which tends to bring plaintiff into public hatred, ridicule or scorn there is no libel. Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6. (c) Plaintiff cannot enlarge the meaning of the words used by the innuendo. The court can always consider whether the innuendo set out is the legitimate deduction from the facts stated, and can reject the pleaded innuendo. Winsor v. Ottofy, 140 Mo. App. 563, 120 S.W. 693, 695; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 622, 132 S.W. 1143. (d) The following Missouri authorities hold it is not actionable per se to call a person a liar unless perjury is charged. Harris v. Woody, 9 Mo. 112; McManus v. Jackson, 28 Mo. 56; Alderson v. Auerswald, 80 Mo. App. 370. (e) Every member of the public has the right to freely discuss candidates for public office. The article in question went no further than to defend one candidate against charges it was feared would be made against her and was aimed against one not a party to this suit. Under these circumstances it was privileged and could not constitute a libel against plaintiff. Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143.

McCULLEN, J.

This is an action for damages for libel brought by appellant, hereinafter referred to as plaintiff, against respondents, who will be referred to as defendants.

Defendants filed separate demurrers to plaintiff's amended petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained and plaintiff refused to plead further, whereupon final judgment was entered in favor of defendants. Plaintiff appeals.

Plaintiff's amended petition alleged that plaintiff was, on August 2, 1932, and for some weeks prior thereto, a candidate for the office of republican committeewoman of the thirteenth ward of the city of St. Louis, Missouri, and that on the same date and for a number of weeks prior thereto, Mrs. Lydia Rothweiler and Mrs. Emma Engelmeier were also candidates for republican committeewoman of said ward; that on August 2, 1932, there was an election in said city at which a republican committeewoman was elected for said ward.

The amended petition further alleged that before said election and on or about July 30, 1932, the defendants wilfully, intentionally wantonly, wrongfully, unlawfully and maliciously caused to be distributed to a large number of the voters and residents of said thirteenth ward a false, defamatory and libelous printing or circular of and concerning plaintiff, as follows, to-wit:

The petition at this point contains a copy of the printed circular complained of. On the upper left hand side thereof appears the following:

"Beware of last minute attacks — they cannot be answered — therefore are cowardly."

Then follows in larger type this exhortation: "Elect Mrs. Lydia Rothweiler candidate for Republican Committeewoman, Thirteenth Ward, unanimously endorsed by the Thirteenth Ward Loyal Republican Club, John J. Heil, President, Harry Brinkop."

Following the above language, and under the heading "THE TRUTH," appear the following statements:

"Lydia Rothweiler has lived and voted in the Thirteenth Ward for seven years. Lydia Rothweiler is not a candidate of any political faction. Lydia Rothweiler's husband, Fred Rothweiler has never held a political position nor have any of her relatives. Lydia Rothweiler has never had or attempted to have any city employee discharged — this is beneath her dignity. Lydia Rothweiler, unlike her opponent, has conducted a clean, dignified campaign."

On the upper right hand side of the circular appears a cartoon showing the figure of a woman, labeled "Mrs. Lydia Rothweiler," to the right of which appears another figure labeled "Mrs. Emma Engelmeier." To the right of the last mentioned figure is the figure of another woman labeled "Mrs. Frank A. Becker." The figures of Mrs. Emma Engelmeier and Mrs. Frank A. Becker are depicted as throwing black splotches at the figure of Mrs. Lydia Rothweiler, the black splotches being labeled "Lies." Emanating from the figure representing Mrs. Emma Engelmeier appear the following words: "If I can't win I don't want Lydia to win." Emanating from the figure representing Mrs. Frank A. Becker appear the following words: "Nice cooperation Emma." In the foreground of the scene shown in the cartoon appears a black splotch representing a puddle of black mud labeled "Last Minute Lies." Figures of two other persons appear in the scene depicted in the cartoon, but they bear no label. Underneath the above described picture or cartoon, under the heading "Facts," appear the following statements:

"Lydia Rothweiler is a first time candidate for Committeewoman of the Thirteenth Ward. Mrs. Emma Engelmeier was a candidate for the Committee against Mrs. Becker four years ago. Mrs. Emma Engelmeier was a candidate for the Committee against Mrs. Becker two years ago. In both instances Mrs. Engelmeier was defeated. As a candidate against Mrs. Becker, Mrs. Engelmeier was the beneficiary of 100 per cent of the protest vote against Mrs. Becker. Therefore, it can readily be seen that a vote for Mrs. Engelmeier, a third time candidate, when there are three candidates in the field, is really a vote for Mrs. Becker. The only way to vote against Mrs. Becker is to vote for Mrs. Lydia Rothweiler."

Following the above described circular, it was alleged that said printed article was likely to and did raise the inference and communicated to the public and the people who saw it, the ideas and statements that plaintiff...