Burrows v. Pulitzer Pub. Co.

• Decision Date: 18 September 1923
• Docket Number: No. 17560.,17560.
• Citation: 255 S.W. 925
• Parties: BURROWS v. PULITZER PUB. CO.
• Court: Missouri Court of Appeals

255 S.W. 925

BURROWS v. PULITZER PUB. CO.

No. 17560.

St. Louis Court of Appeals, Missouri.

September 18, 1923.

Rehearing Denied November 2, 1923.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Mostyn Burrows against the Pulitzer Publishing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Judson, Green & Henry, of St. Louis, for appellant.

Pleasant V. Wilson and Earl Pirkey, both of St. Louis, for respondent.

DAVIS, C.

Action for lible, commenced

In the circuit court, city of St. Louis. On October 27, 1920, verdict and judgment for plaintiff for $3,500, of which $2,500 was actual and $1,000 punitive damages. Defendant appeals.

As questions arise on the pleadings, and, as the libelous article relied on and the exoneration published by defendant are recited therein, we set them out. The amended petition is as follows:

"Comes now plaintiff, and by leave of court first had and obtained, files this, his amended petition, and for his cause of action herein states:

"That the defendant was at the times herein mentioned, and still is, a corporation, and at the times herein mentioned defendant was the owner, printer, and publisher of a certain newspaper of large circulation, published in the city of St. Louis, Mo., and known as the St. Louis Post-Dispatch.

"That on or about January 28, 1919, defendant willfully, intentionally, wrongfully, unlawfully, wantonly, and maliciousy printed and published in said newspaper the following false, defamatory and libelous article of and concerning plaintiff, to wit:

"'Y. M. C. A. Safe Robbed of $323—Three Employes (meaning plaintiff and two others) Gone.

"`Two Youths and Man (meaning plaintiff and said two others) Answering Their Description Said to Have Gone to Kansas City.

"`The safe in the office of the Central Y. M. C. A. headquarters at Grand and Franklin avenues was robbed between 8:30 and 9:15 a. m. to-day while a meeting of officers was being held in another room, and $323 in cash and three office employes (meaning plaintiff and said two others) are missing.

"`The employes are John Hanson, 15 years old; William Burns, 20, and Moyston Burroughs, 60 (meaning plaintiff). They were traced to Union Station, where it was learned they had bought railroad tickets for Kansas City.

"`Martin R. Murray, secretary of the Y. M. C. A., told the police the Hanson boy was left in charge of the office when the meeting was held. The safe was unlocked. After the meeting Murray entered the office and was surprised to find no one there. On the desk was a note written by Hanson. It read: "Going to California."

"`Hanson, Burns and Burroughs (meaning plaintiff) all lived in the Y. M. C. A. building. They were regarded as trustworthy office employes. Descriptions of the three men (meaning plaintiff and said two others) were given to the police. Detectives went to Union Station and were told that a short time before their arrival two youths and a man (meaning plaintiff and said two others) answering the descriptions had bought tickets to Kansas City and had entered the train shed to take a train.' "That the said publication was likely to, and did, raise the inference and communicate to the public the idea that plaintiff was implicated in and a party to the crime of stealing certain money from the office of the Central Y. M. C. A. at St. Louis, Mo., and said publication was such as was likely to, and did, provoke plaintiff to wrath and expose him to public contempt and ridicule, and deprive him of the benefits of the confidence of others and of social intercourse, and was likely to, and did, greatly damage the good name and reputation of plaintiff and cause great mental pain and suffering to plaintiff, and the same was willfully, intentionally, wrongfully, unlawfully, wantonly, and maliciously published as aforesaid, of and concerning plaintiff by defendant to a great number of persons in the city of St. Louis, Mo., and elsewhere, to the great damage of plaintiff as aforesaid.

"That by reason of said false, defamatory, and libelous publication plaintiff has been actually damaged by said publication in the sum of $5,000.

"That, as said publication was, as aforesaid, willful, intentional, wrongful, unlawful, wanton, and malicious, plaintiff asks punitive damages in the sum of $2,500.

"Wherefore, plaintiff asks judgment for $5,000 actual damages and $2,500 punitive damages, a total of $7,500."

The answer to the amended petition is herewith set forth:

"I. Comes now Pulitzer Publishing Company, defendant in the above-entitled cause, and for answer to the amended petition of plaintiff admits that it is a corporation under the laws of the state of Missouri, admits that it is the owner and publisher of the newspaper known as the St. Louis Post-Dispatch, and admits the publication in the St. Louis Post-Dispatch on January 28, 1919, of a news article, the substance of which is set out in the plaintiff's petition; but defendant denies that said article was published by it maliciously, wrongfully, unlawfully, or wantonly, denies that it was libelous or defamatory of plaintiff, denies that it has damaged plaintiff in the sum of $5,000, or in any other sum or amount whatsoever, and denies each and every other allegation in said petition contained.

"II. For a further answer and defense defendant says that said article complained of by plaintiff is a report of the action of the police officers of the city of St. Louis, respecting a certain robbery which was committed at the office of the Young Men's Christian Association, Grand and Franklin avenues, and is an account of the official police report of said robbery and of the action of the police thereon made by one James Johnson, the captain commanding the Ninth police district, to Col. Martin O'Brien, then chief of police of the city of St. Louis, and of a certain general police order for the arrest of three persons in connection with said robbery, one of whom was the plaintiff, which general order of arrest was sent out to all of the policemen in the city of St. Louis, that said article was a fair and impartial account of said report and the action of the police officers of St. Louis in reference to said robbery and said order of arrest, and said article was published in good faith and without malice and related to a matter of public interest and was privileged in law.

"III. For a further answer and defense, defendant says that it is true, as stated in said article, that the safe or vault of the Young Men's Christian Association building was robbed of about $320; that it is true, as stated in said article, that plaintiff then lived at the said Young Men's Christian Association building, where said robbery occurred and had been employed there; that it is true, as stated in said article, that plaintiff was in the office of said Young Men's Christian Association building at or about the time of the said robbery; and that it is true, as stated in said article, that the name and description of plaintiff were given to the police by certain officers and employes of the Young Men's Christian Association immediately after the said robbery, and that a general order for the arrest of plaintiff and two other employes as suspects in said robbery was sent to all police officers in the city of St. Louis.

"IV. For a further answer and defense defendant says that on January 31, 1919, it published in the St. Louis Post-Dispatch the following article, which is an exoneration of plaintiff, to wit:

"`Youth Confesses Taking $323 from Y. M. C. A.; Two Exonerated.

"`John Hansen, 16 years old, who admitted taking $323 from the office of the Central I. M. C. A. last Tuesday, has been released from the house of detention. He has restored the money and will not be prosecuted. Hansen, who lives, at the Y. M. C. A., was left in charge of the office while a meeting of executives was being held in another room. At the close of the meeting he and the money were missing.

"`Moyston Burroughs, 60 years old, and William Burns, 20, who also live there, have been exonerated of any connection with the disappearance of the money. Investigation showed that they had been in the office lobby with Hansen, but were not there when he took the money and knew nothing of it. Their names were given to the police by M. R. Murray, executive secretary of the Y. M. C. A., as those of possible witnesses, but they had no difficulty in proving they knew nothing of the theft.

"'Hansen bought a ticket for Kansas City, but became conscience-stricken and did not take the train.'

"This article was published by defendant voluntarily as soon as it learned of said confession of Hanson.

"Wherefore, having fully answered, defendant asks to be hence discharged with its costs."

The reply is a general denial.

The facts, in so far as may be required, we hereinafter narrate in the discussion of the various assignments of error.

Charging the absence of express malice and for that the occasion of the publication was one of privilege, defendant challenges the trial court's action in refusing its demurrer to the evidence. As authority for the position taken, we are referred to Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S. W. 480; McClung v. Pulitzer Publishing Co., 279 Mo. 370, 214 S. W. 193; Tilles v. Pulitzer Pub. Co., 241 Mo. 609, 145 S. W. 1143; and People's United States Bank v. Goodwin, 148 Mo. App. 374, 128 S. W. 220.

The evidence for the plaintiff tends to establish: That on January 28, 1919, as a private citizen he was living at the Y. M. C. A., Grand and Franklin avenues, in St. Louis. The day the article concerning him, set out in the petition, was published, he was not an employe of the Y. M. C. A., but had been so employed previous thereto. That he did not go to the Union Station on that day, buy a ticket for Kansas City or elsewhere, nor did he leave the city, norm was he missing, but during part of the morning...