Buller v. Pulitzer Pub. Co.
| Decision Date | 04 December 1984 |
| Docket Number | No. 47271,47271 |
| Citation | 684 S.W.2d 473 |
| Parties | , 11 Media L. Rep. 1289 Patricia C. BULLER and Roberto Roldan, Plaintiffs-Appellants, v. The PULITZER PUBLISHING CO. and Florence Shinkle, Respondents-Defendants. |
| Court | Missouri Court of Appeals |
Joseph A. Fenlon, Clayton, for plaintiffs-appellants.
Robert B. Hoemeke, St. Louis, for respondents-defendants.
Patricia C. Buller and Roberto Roldan, plaintiffs, appeal from an order of the Circuit Court of the City of St. Louis sustaining defendants' motion to dismiss their petition on the grounds it failed to state a claim against the defendants. Plaintiffs appealed. Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962). Hill v. General Motors Corporation, 637 S.W.2d 382, 384 (Mo.App.1982). On appeal, in determining whether plaintiffs have stated a cause of action we assume every pleaded fact as true and take every favorable inference which may be reasonably drawn from the facts pleaded. Hill, supra, at p. 384; Rook v. Public School Retirement System, etc., 593 S.W.2d 905, 906 (Mo.App.1980).
Plaintiffs' joint petition contained five counts. The first three Counts were concerned with plaintiff Buller's claim for (1) libel, (2) intentional interference with business expectancies, and (3) invasion of privacy. Plaintiff Roldan's Counts were for (4) libel and (5) invasion of privacy. Their claims against the Pulitzer Publishing Company and one of its reporters, Florence Shinkle, have its genesis in a newspaper article which appeared in the Everyday section of the Sunday, December 26, 1982, issue of the St. Louis Post-Dispatch, and entitled "The Future Lies Ahead." The article dealt with psychics and their practices in foretelling future events. Plaintiffs were two of five psychics discussed at length and identified by name in the article.
Plaintiff Buller's psychic practice was described in detail in defendant's article and she claims she was ridiculed in a cartoon which accompanied the article and that she was inferentially described as being a tax-evader.
Plaintiff Roldan was described in the article as a "voodoo practitioner" and a practicer of "voodoo magic." 1
Plaintiff Buller's first Count identifies the defendants and the news article and attaches a copy of same to the petition as "Exhibit A"; alleges that the article was written expressly for the purpose of bringing her and other psychics into ridicule by containing defamatory statements, innuendos and misrepresentations known to the defendants to be false; that she is, and for years had been, engaged in the business of giving psychic readings for fees and that she is known primarily by her reputation and referrals; that the drawing which accompanied the article was intentionally and falsely designed to discredit her in her profession and to pass her off to the public as eccentric and a tax evader. She set out the words used which she claimed charged her by innuendo with being a tax evader--"The price for a consultation is $20.00 in cash" and in discussing the psychic business stated, "How successful, it's hard to calculate since many payments are still in cash, unrecorded, unknowable forever to the IRS."--. She further alleged that she was falsely represented as a trickster and a fraud by referring to the cartoon which she claims presented her as giving readings while seated in bed wearing a ridiculous costume with charts in her lap, who conducted her business as if it were an assembly line, and whose sole purpose was the acquisition of money with little or no concern for her clients, together with the use of the term "hokey," "bizarre costumes," and "crystal ball". As a direct result of all of the above she claims that she has been damaged in her character, reputation and business, discredited Plaintiff Roldan's Count IV adopted by reference the paragraph of plaintiff Buller's petition identifying the defendants and the news article; alleged that the article describes him as a "voodoo practitioner" and a practicer of "voodoo magic," that these descriptions are false, were known to be false, and were published by defendants in reckless disregard of the truth. He prayed $1,000,000 actual damages.
in the community, falsely accused of being a charlatan and tax evader; that these statements and the pictured representations were made by the defendants knowing them to be false and in reckless disregard of the truth and for the purpose of discrediting her. She prayed for compensatory damages of $2,000,000 and punitive damages of $4,000,000.
Published words in written communications which are defamatory without the aid of extrinsic facts are libelous per se and as such are actionable. Langworthy v. Pulitzer Publishing Company, 368 S.W.2d 385, 388 (Mo.1963).
Under Missouri law, certain types of written statements constitute libel per se. One such type of libel per se is a publication which tends to injure a person in his business or profession. A long line of Missouri cases has clearly established that this kind of written statement is actionable, provided it meets certain standards. Jacobs v. Transcontinental & Western Air, Inc., 216 S.W.2d 523, 525 (Mo.1948); Coonis v. Rogers, 429 S.W.2d 709, 714 (Mo.1968); Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 496 (Mo.App.1980).
The established rule is that where the plaintiff contends the language affected his business, the words must directly tend to injure or prejudice his profession, trade, business, or employment by imputing want of knowledge, skill, capacity, or fitness to perform or discharge the duties thereof. Heitzeberg v. Von Hoffmann Press, 100 S.W.2d 307, 309 (Mo.1937); Greening v. Klamen, 652 S.W.2d 730, 735 (Mo.App.1983). The language must also be defamatory of the plaintiff in the line of his trade or calling in that it imputes fraud, want of integrity or misconduct. Brown v. Kitterman, 443 S.W.2d 146, 154 (Mo.1969); Greening, supra, at 735.
In determining whether words alleged to be libelous per se are in fact defamatory, they must be read in connection with the whole publication rather than in isolation, and it is permissible to attach the whole publication to the petition as an exhibit. Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 777 (Mo. banc 1976). Whether allegedly libelous words or statements are libelous per se is a question of law which the court may decide on a motion to dismiss. Missouri Church of Scientology, supra, at p. 777.
In light of these principles we evaluate Buller's claim of libel.
We observe that Buller alleges in Count I of her petition that she is engaged in the profession of providing psychic readings and that defendants' publication of the news article directly discredited her in her profession. The question is then whether, as a matter of law, the drawing and news article referred to in plaintiff's petition, imputes a want of knowledge, skill, capacity, or fitness to perform or discharge her duties thereof and imputes fraud, want of integrity or misconduct, and thus constitutes libel per se.
Buller alleges that the article falsely presented her as a tax evader by stating that her consultation fee is paid in cash and by noting that within the profession many payments are made in cash and unrecorded with the IRS. To obtain a feeling of the context we read the publication as a whole. In the context in which they appear in the article, the two phrases are, first, not defamatory, and second, even if defamatory, do not necessarily impute fraud, want of integrity or misconduct in Buller's business. They do not present plaintiff as a tax evader. The phrase stating the nature of payment in the business is not made in reference to Buller. The phrase mentioning the form of payment required for Buller's The article notes that Buller is a popular psychic. Merely stating her fees and the method of payment for her services is consistent with a statement of her popularity. A writing claimed to be libelous must be given its ordinary meaning in the plain and popular sense. "Words claimed to be libelous will be construed fairly by their natural import, according to the ideas they were calculated and intended to convey to those to whom they were addressed...." Dienerf v. Star-Chronicle Publishing Co., 230 Mo. 613, 132 S.W. 1143, 1148 (1911). We conclude that no defamatory meaning leaps out of these two phrases, seemingly pulled at random from the context of the article. The average reader would most likely note Buller's fees in reference to her popularity. However, even were these phrases defamatory, they would not impute fraud, want of integrity nor misconduct. Buller could conceivably be a competent and trustworthy psychic and also be an income tax evader; her income tax reporting practices have no bearing on her ability to be a qualified psychic. As this court has recognized in earlier cases, this is an important distinction. Alleged wrongdoing may be published, but may not be of a nature to affect Buller's ability to render psychic services competently. Jacobs, supra at p. 526; Baldwin v. Walser, 41 Mo.App. 243, 245 (1890).
services does nothing more than note this fact; it does not imply that Buller fails to report her earnings.
This does not mean, however, that Buller's petition fails to state a claim in libel. On the contrary, we find that the drawing and article meet the criteria for libel per se in a business or profession.
Defendants claim that the drawing does not purport to specifically identify Buller. This argument carries no water. Without addressing the libelous content of the drawing we find that it clearly identifies Buller. The phrase spoken by the "client" depicted in the drawing is a summary of Buller's reading by the author. The "psychic" portrayed in the drawing is...
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