Byrne v. News Corp.

• Decision Date: 27 November 1916
• Docket Number: No. 12150.,12150.
• Parties: BYRNE v. NEWS CORP. et al.
• Court: Missouri Court of Appeals

190 S.W. 933

195 Mo. App. 265

BYRNE v. NEWS CORP. et al.

No. 12150.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Rehearing Denied December 29, 1916.

Appeal from Circuit Court, Buchanan County; Arch B. Davis, Special Judge.

Action by Ulysses S. Byrne against the News Corporation and Robert I. Young. From a judgment for plaintiff against both defendants, they appeal. Judgment reversed, and cause remanded.

Lucian J. Eastin and Culver & Phillip, all of St. Joseph, for appellants. Randolph & Randolph, of St. Joseph, for respondent.

TRIMBLE, J.

This is an action for libel. Defendant Robert I. Young is a farmer near St. Joseph, and defendant News Corporation publishes a daily (except Sunday) newspaper in said city, called the "St. Joseph News-Press," which has a circulation of 40,000 copies a day, covering not only the city but also Northwest Missouri, Eastern Kansas, and Southern Iowa. Plaintiff resided near said city and was a breeder and seller of pure-bred, pedigreed, and registered Poland China hogs. These pedigrees, the petition alleged, he registered in the Herd Register of the Standard Poland China Record Association having its headquarters at Maryville, Mo., and the pedigrees thus registered were furnished by him to buyers of his animals.

A column called "The People's Forum" was maintained in said paper, wherein individuals might express their opinions on current topics or anything else that was fit for publication and not abusive. The defendant Young wrote an article, or communication in the form of a letter to the editor, and sent it through the mail for publication in said column, and it duly appeared therein on September 18, 1914. Plaintiff thereupon brought this suit. Said article is here set forth in full, the portion thereof charged to be and declared on as libelous being put by us in italics, as follows:

"St. Joseph Stock Breeder's View of the Fair.

"Editor News-Press: In an editorial appearing in your much esteemed paper you say: `Our own dairymen did not exhibit because they were afraid they would be outclassed by the nonresident exhibitors.' I know it to be a fact that there are three herds of dairy cattle within two miles of the city limits of St. Joseph, Mo., that won more prizes at the World's Fair, St. Louis, Mo., than any three herds in the United States. Then why say we are afraid to exhibit at a tristate fair? I can pick an exhibition herd from these three herds that, with any kind of a fair man for judge, can win against the whole world.

"We want a tristate or national fair at St. Joseph if the citizens of St. Joseph have a mind to back it up. St. Joseph is too big a town to fall back into the county fair business. The fair association has made a few mistakes and this reminds us that they who make no mistakes never made much of anything.

"I exhibited at a fair last year, and when the cattle were led out into the show ring I made the discovery that I had very strong competition. Not that the other exhibitor had better cattle than I had, but the judge who, by the way was also imported, was none other than a partner of my strongest opponent. When the show was over the judge (?) came to me and said: `You have a very choice heifer there, and I am sorry she did not win first. What will you take for her?' A price was named — he bought the heifer, and in ten minutes afterward made the statement to a friend of mine that she was the best heifer he ever saw. If she was why did she not win first prize?

"I bought a load of feed, and after dragging it three miles through the gumbo I was informed that I must buy my feed from a firm that had bought the concession. This firm had doubled the price of feed and straw. A foreign exhibitor stole my clipping machine, currycomb, brush and twenty-two halters. I had him located all right, but the management told me it was too small a matter to bother about. I made a county exhibit and over 200 private exhibits. My son made an exhibit in the boys' department. My son was ruled out, and my private exhibits were all ruled out because, as the farm adviser superintendent of agriculture, who had never seen a two-row corn cultivator until he came to the county in which the fair was held, decided that he had never seen anything of the kind in the Ozarks and he would not allow one man to make so many entries. The fact is: The superintendent had a lot of exhibits that he was making for a few special friends.

"I am not a `hoss' man and know nothing about that department, but the superintendent of the swine department was a hummer. There is a number of forged pedigrees of hogs in the secretary's office to his credit, and swine breeders were disgusted. Why place such a man in such a position? I did not show at said fair

                this year.            Robert I. Young."
                

The petition then alleged that a fair was held in St. Joseph in September, 1913, and another in August, 1914, and that in both years plaintiff was "superintendent of the swine department," and that said fact was well known to the public, the patrons of said fair, plaintiff's friends and neighbors, and to breeders generally throughout the territory tributary to St. Joseph. The petition alleged that defendant, by means of said false and libelous article and publication, intended to charge, and did charge: That plaintiff "by false pretense, to wit, by means of false, forged, and untrue pedigrees in writing did obtain the registration of certain swine in the Herd Register of the Standard Poland China Record Association at its office at Maryville, Missouri"; that "the plaintiff did knowingly, in writing, give a false pedigree of swine"; that "the plaintiff had knowingly and willfully, falsely and fraudulently signed some name other than his own to pedigrees of swine, and filed same in the office of the secretary of the Standard Poland China Record Association at Maryville, Missouri"; and that said defendants, by said false and libelous matter, "intended to charge and did charge the plaintiff with having commtited the crime of obtaining from the said Standard Poland China Record Association the registration of hogs by knowingly, and in writing, making and filing false, forged, and untrue pedigrees of such hogs."

A trial resulted in a verdict and judgment against both defendants for $1,000 actual and $4,000 punitive damages. Both have appealed.

The article does not refer to plaintiff by name. It will be observed that, after speaking of the St. Joseph fair, it then takes up, at the beginning of the third paragraph, the consideration of some other fair not named or identified in any way. It says, "I exhibited at a fair last year," and then goes on to relate the troubles and difficulties he had at that fair, and says his and his son's exhibits were ruled out because a certain official had never seen a two-row corn cultivator until he came "to the county in which the fair was held." Another reason given why his exhibits were ruled out at that fair was because the superintendent thereof "had a lot of exhibits he was making for a few special friends." And then comes the part complained of as libelous, and the article closes by saying, "I did not exhibit at said fair this year." Now, on the face of the article, what fair was it, where there was a superintendent of swine who had forged pedigrees? Taking the article as it reads on its face, it was some unnamed fair of last year at which the author exhibited, at which he had so much trouble, at which so many of his exhibits were improperly ruled out, and at which he did not exhibit this year.

This being so, the jury should have been required to find that the readers of said article understood that it referred to plaintiff. If they would not understand that plaintiff was the superintendent mentioned, then there was no libel as to him; for "the gravamen of an action for libel is not injury to the plaintiff's feelings, but damage to his reputation in the eyes of others. It is not sufficient, therefore, that the plaintiff should understand himself to be referred to in the article. It is necessary, to constitute libel, that others than the plaintiff should be in a position to understand that the plaintiff is the person referred to." Duvivier v. French, 104 Fed. 278, loc. cit. 280, 43 C. C. A. 529, 531.

Neither is it enough to constitute libel that the defendants knew of whom they were writing. Persons other than these must have reasonably understood that plaintiff was the man referred to. Same case, 104 Fed. 281, 43 C. C. A. 529. It may be that the allegations of the petition and the proof that plaintiff was the "superintendent of the swine department" of the St. Joseph fair in both years of 1913 and 1914, and that this was well known, would be sufficient to enable the jury to say that readers of the article would understand that plaintiff was the man. But they should have been allowed to so find and should have so found before returning a verdict in plaintiff's favor. Plaintiff's first instruction, however, covered the case and authorized a verdict without requiring the jury to find that the readers of the article so understood it. It reads:

"The court instructs the jury that it stands admitted in this case that the defendants made the publication set out in the plaintiff's petition of and concerning the plaintiff. Therefore the court instructs the jury that, if they find and believe from the evidence that the publication complained of is false and libelous, they should return a verdict for the plaintiff; and the jury are further instructed that in determining the amount of actual damages sustained by the plaintiff, if any, you will take into consideration such injury, if any, as was naturally and probably done to the plaintiff's reputation, and to his business and character, and such damages as he may have suffered because of mental anguish, shame, and humiliation, if any, you believe he has suffered by reason of such publication."

It cannot be said...