Brown v. Kitterman

Decision Date14 July 1969
Docket NumberNo. 2,No. 53610,53610,2
Citation443 S.W.2d 146
PartiesMelba BROWN, Appellant, v. Bob KITTERMAN, Respondent
CourtMissouri Supreme Court

Robert B. Baker, Ellington, for appellant.

John W. Belew, Doniphan, Moore & Brill, Richard D. Moore, Newton C. Brill, West Plains, for respondent.

STOCKARD, Commissioner.

By Count I of her petition plaintiff sought actual and punitive damages for libel, and by Counts II, III and IV she sought actual and punitive damages for slander. The trial court dismissed the petition for failure to state a claim upon which relief could be granted, and plaintiff has appealed. We affirm.

Defendant's motion to dismiss the appeal for the reason that plaintiff's brief failed to comply with Civil Rule 83.05, V.A.M.R., while not totally without merit, is overruled.

Plaintiff alleged she was libeled by the publication by defendant of a letter, which in its entirety was as follows:

'Grandin, Mo.,

Mar. 6, 1966.

'University of Missouri Extension Service

'Van Buren, Missouri

'Gentlemen:

Re: Community Center Survey Grandin, Mo.

'Since I did not have time to answer the survey in the short length of time given I am taking this means to give my objections and suggestions. Since the community center building was rented without the approval of a majority of the original building committee and it is now being managed by the owner of the building, I don't think the owner of the property should also be the manager.

'Several things have been happening in the Grandin Community during the past few months which doesn't look good, some of it is directly from the center and some isn't.

'One of the VISTA workers proposes that we should legalize prostitution in a high school class at Ellisnore, the same worker has had considerable to do with the setting up and management of the center. We have had two school girls reported to be pregnant another has been forceable assaulted. On two different occasions we have heard from our home girls hollow out and a car door slam, the car takes off then all is quiet. To me this all adds up to social problems that are not being solved. I do not think the center should be operated in the manner it is in the name of the community. If the owner wants to operate such a place of business then let it be under some other name than the community.

'If the center is to be such a good and desirable organization then I make the following suggestions to insure its future well being.

'Why not let each official church board appoint one of its members to serve on a committee, this would give the center a governing board of 5, then let this committee have the rights to appoint and supervise the management. If all 5 churches would cooperate in this manner, I think the center would have a much better atmosphere.

'To sum up my thinking, I do not think we need the center in Grandin, if it is to be operated as is. Unless some very good improvements can be made the Federal Government should not put its money in it. We have to (sic) many other more important things the Government can help us with, other than spending money on undesirable activities.

'I certainly hope some good can come from this survey.

Respectfully yours,

/s/ Bob Kitterman

Mayor City of Grandin.'

In view of plaintiff's attempt to plead innuendoes we shall set forth certain basic rules pertaining to the law of libel and thereby define and delineate the precise issue for determination.

Published words in a written communication which are defamatory within the meaning of Section 559.410, RSMo 1959, V.A.M.S., without the aid of extrinsic facts, referred to as libelous per se, are actionable. Langworthy v. Pulitzer Publishing Company, Mo., 368 S.W.2d 385; Chambers v. National Battery Co., D.C., 34 F.Supp. 834; 53 C.J.S. Libel and Slander §§ 8 and 162. In such a situation the law presumes some damages which may be alleged generally, Eby v. Wilson, 315 Mo. 1214, 289 S.W. 639, 50 A.L.R. 268, and the allegation of special damages is not required although proof of actual damage may be made to support the presumption of injury and to show its extent. Langworthy v. Pulitzer Publishing Company, supra, 368 S.W.2d at p. 388. A petition based on published words not defamatory per se may state a cause of action for libel, but to do so the petition must allege facts extrinsic to the published matter, referred to as the inducement, and the explanation referred to as the innuendo, which establishes the defamatory sense within the meaning of Section 559.410, supra. In addition, it has been the uniform rule in this state, and the majority rule elsewhere, that in such situation special damages must be pleaded in order for the petition to state a cause of action. Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341; Langworthy v. Pulitzer Publishing Company, supra, 368 S.W.2d at p. 388. See also the numerous cases cited in the Langworthy case. Plaintiff challenges this rule, but if the publication in this case constitutes libel per se there would be no need to discuss this challenge. We shall first determine whether the publication constitutes libel per se.

Section 559.410, supra, defines libel as follows: 'A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, * * *.' The courts, as set out in Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, have uniformly held that to constitute libel per se the published writing must itself amount to a 'defamation,' and that in addition it must expose one to hatred or contempt, etc. It was held in Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6, 11, that 'There must be defamation in a libelous sense before there can be a libel. * * * To make a libel there must be defamation in the sense of the law, before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by lying; the injury of another's reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous.'

The motion to dismiss the petition for failure to state a claim upon which relief may be granted does not admit the construction of the words pleaded in an innuendo, Fritschle v. Kettle River Co. 346 Mo. 196, 139 S.W.2d 948; Langworthy v. Pulitzer Publishing Company, Mo., supra, and whether the alleged libelous words, when given their natural meaning, Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, are 'capable of the defamatory meaning ascribed to them' is a question of law for the court to decide on a motion to dismiss. Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480, 485.

Plaintiff extracts seven portions or phrases from the above publication which she alleges were false, and in her petition she ascribes to each of them by way of innuendo a meaning. Although in our determination of whether any of the seven excerpts constitute libel per se, we are not bound by the meaning ascribed to them by plaintiff, we will set forth the various excerpts and the pleaded meanings.

(1) 'The community center building was rented without the approval of a majority of the original building committee and it is now being managed by the owner of the building.

'Meaning that Melba Brown, plaintiff, was the owner and manager of the center.'

(2) 'Several things have been happenning in the Grandin community during the past few months which doesn't look good, some of it is directly from the center and some isn't.'

'Meaning that some things which do not look good were being encouraged by the cummunity center managed by Melba Brown, plaintiff.'

(3) 'One of the VISTA workers proposed that we should legalize prostitution in a high school class in Ellsinore, the same worker has had considerable to do with the setting up and management of the center. We have had two school girls reported to be pregnant, another had been forceable assaulted. On two different occasions we have heard from our homes girls hollow out and a car door slam, the car takes off then all is quiet. To me this all adds up to social problems that are not being solved.'

'Meaning that the above class and character of activities are being promoted and encouraged at the Community Center by Melba Brown, plaintiff.'

(4) 'I do not think the center should be operated in the manner it is in the name of the community. If the owner wants to operate such a place of business then let it be under some other name than the community.'

'Meaning that Melba Brown, plaintiff, is operating the community center in such a manner as to encourage illicit sexual relations by persons who come there.'

(5) 'If the center is to be such a good and desirable organization then I make the following suggestions to insure its future well being.'

'Meaning that the community center operated by Melba Brown, plaintiff, is an undesirable organization because of the promotion and encouragement of the above stated activities.'

(6) 'I think the center would have a much better atmosphere.'

'Meaning that the community center now has an immoral atmosphere because of the promotion of the above immoral activities.'

(7) 'To sum up my thinking. I do not think we need the center in Grandin, if it is to be operated as is. Unless some very good improvements can be made the Federal Government should not put its money in it. We have to (sic) many other more important things the Government can help us with, other than spending money on undesirable activities.'

'Meaning that Melba Brown, plaintiff, is operating the community center in such a way as to promote and encourage immoral activities and that the Federal Government is spending money for this purpose.'

Plaintiff alleged that the letter was published of and concerning her, and by reason of Civil Rule 55.22, V.A.M.R., this was sufficient for what is referred to as the 'coll...

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