Capobianco v. Pulitzer Pub. Co.

• Decision Date: 11 June 1991
• Docket Number: No. 58430,58430
• Citation: 812 S.W.2d 852
• Parties: 69 Ed. Law Rep. 619, 18 Media L. Rep. 2290 Robert L. CAPOBIANCO, Plaintiff-Appellant, v. PULITZER PUBLISHING COMPANY, et al., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 852

812 S.W.2d 852

69 Ed. Law Rep. 619, 18 Media L. Rep. 2290

Robert L. CAPOBIANCO, Plaintiff-Appellant, v. PULITZER PUBLISHING COMPANY, et al., Defendant-Respondent.

No. 58430.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 11, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 23, 1991.

Application to Transfer Denied Sept. 10, 1991.

James J. Sauter, Mary E. Dorsey, St. Louis, for plaintiff-appellant.

Robert B. Hoemeke, Eric Paulsrud, St. Louis, for defendant-respondent.

SATZ, Judge.

This is an action for defamation and intentional interference with a business expectancy. In three of the four counts in his petition, plaintiff, Robert Capobianco, alleges he was libeled in newspaper articles by defendant, Pulitzer Publishing Company, the publisher of the articles, and Michael Sorkin and Catherine Vespereny, the authors of the articles. In his fourth count, plaintiff alleges the defendants interfered with a business expectancy of his. The trial court granted defendants' motion to dismiss the libel counts and granted them a summary judgment on plaintiff's interference count.

Plaintiff appeals. We affirm.

The law of libel and slander protects a person's reputation. For that primary reason and others, libel and slander are often referred to as the "twin torts of defamation." See Prosser and Keeton, The Law of Torts, § 111 at 771 (5th ed.1984). However, at early common law, their differences were as significant as their similarities. These differences appeared in both the substantive and procedural principles governing them.

For a defendant's words to be defamatory, they obviously must convey a defamatory meaning. They may do so on their face: "you are a thief;" or, they may be shown to do so by additional extrinsic evidence: "he burned his barn," which he, as the owner, has a right to do, plus the additional evidence that his barn was insured. Id. at 782.

Where words are not defamatory on their face, the plaintiff must plead and prove what extrinsic evidence is needed to give the words defamatory meaning: the "inducement," the extrinsic facts which create the defamatory meaning; the "innuendo," why those words create that meaning; and the "colloquium," how the defamatory meaning attaches to the plaintiff, if the words do not facially refer to him or her. Id. at 782-783.

At early common law, any libelous statement, a written defamation, was conclusively presumed to result in damages, whether or not it was libelous on its face. Id., § 112 at 795. Libel was "actionable per se", meaning it was actionable without the plaintiff needing to plead and prove he had suffered any impairment of his reputation or other harm. Id.

Not so with slander, a spoken defamation. Not all slanderous statements were presumed to cause damages; only some were. Like libel, slanderous words could be defamatory on their face or shown to be defamatory by extrinsic evidence. But, only certain categories of slander were "actionable per se", i.e. presumed to cause damages and, thus, actionable without pleading special damages. Id. at 788-795. Special damages were not required if the words (1) charged certain crimes; (2) charged certain diseases; (3) tended to harm a person in his or her business, trade, profession or office; or (4) charged a woman with unchastity. This type of slander was labelled "slander per se." All other slanderous statements needed special damages to be actionable and, apparently, were labelled "slander per quod." Elredge, The Spurious Rule of Libel Per Quod, 79 Harvard L.R. 733, 736 (1966).

Long ago, in Missouri, we began to use most of this terminology interchangeably without regard to the precise early common law meaning. See, e.g., Brown v. Kitterman, 443 S.W.2d 146 (Mo.1969); Langworthy v. Pulitzer Publishing Co., 368 S.W.2d 385 (Mo.1963); Nordlund v. Consolidated Electric Co-op., 289 S.W.2d 93 (Mo.1956); Swafford v. Miller, 711 S.W.2d 211 (Mo.App.1986); See also Gerard, Petzall and Schiff, Selected Aspects of the Missouri Law of Defamation, 1957 Washington Univ. L.Q. 358. Thus, in Missouri, we have two types of libel actions, libel per se and libel per quod. Langworthy, supra at 388; Anton v. St. Louis Suburban Newspapers Inc., 598 S.W.2d 493, 496 (Mo.App.1980).

Words which are defamatory on their face are "defamatory per se" and a libel action based on them is a "libel per se" action. A claim for "libel per se" is "actionable per se," and "special damages" need not be pleaded. E.g. Brown, supra at 151-153. However, a libel action may be based upon words which are not defamatory on their face but can be made defamatory by reference to extrinsic evidence. Id. This is a "libel per quod" action; and to state a claim for "libel per quod," the plaintiff must not only plead the extrinsic evidence, he must also plead his "special damages." E.g., Swafford, supra, 711 S.W.2d at 213.

Plaintiff here does not plead special damages. Therefore, he may only recover if the words in question are defamatory per se. Id. Plaintiff contends they are. Defendant contends they are not.

SCOPE OF REVIEW

Normally, to review the grant of a motion to dismiss for failure to state a claim, we treat the alleged facts as true and view them and their inferences liberally and most favorably to the pleader. E.g. Hester v. Barnett, 723 S.W.2d 544, 549 (Mo.App.1987). In a libel per se action, as here, the alleged defamatory words obviously must be pleaded. These words, our courts have said, must be read in context, giving them their ordinary meaning as understood by those to whom they are addressed. E.g., Brown, 443 S.W.2d at 150. This reading is consistent with the general mandate to read a plaintiff's petition liberally. However, our courts have also said that, in a libel per se action, the alleged defamatory words must be read "in their most innocent sense" to determine whether they are "unequivocally" libelous. E.g., Walker v. Kansas City Star Co., 406 S.W.2d 44, 51 (Mo.1966). This reading is not necessarily consistent with a liberal reading of a plaintiff's petition.

No express reason is given for the two different standards used to read a libel per se petition. There is, however, a readily apparent factual difference in the allegations in question in each case which may warrant the difference in readings. The "most innocent" reading is used when the alleged libel per se is a statement that the plaintiff committed a crime, see e.g. Walker, supra at 51; Hagler v. Democrat-News, Inc., 699 S.W.2d 96, 98 (Mo.App.1985), and the "ordinary meaning in context" is used for all other statements alleged to be libelous per se. See e.g., Brown, supra at 150; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143, 1148 (1910).

We need not determine here whether this difference in reading is an accepted rule in Missouri. The statements of defendants in question here are not libelous per se even when reading those statements in their ordinary sense. But, in reading the statements, we take people as they are and their language as it is. All words carry a sub-text, and the meaning of words in context may be more or less than their pristine dictionary definition. In order to avoid a hidden use of "inducement" and "innuendo" in this libel per se action, we ascribe to defendants' words no more than the sole and compelling meaning they impute.

Plaintiff's Allegations

The words in question were printed in five different articles appearing in the St. Louis Post-Dispatch. Plaintiff contends they impute his lack of fitness in his profession. We disagree.

For words to impute a lack of fitness in a person's profession the words must "impute fraud, want of integrity or misconduct in the line of his calling," Brown, supra, 443 S.W.2d at 154; Buller v. Pulitzer Pub. Co., 684 S.W.2d 473, 477 (Mo.App.1984), or must affect him "in some way which is peculiarly harmful to one engaged in his trade." Jacob v. Transcontinental & Western Air, Inc., 358 Mo. 674, 216 S.W.2d 523, 525 (1948). An article may focus on the plaintiff's behavior, but, if "it does not strike at his professional competence," it is not actionable. Swafford, supra, 711 S.W.2d at 216. And, "[t]o be actionable per se, the words must be defamatory on their face, without the aid of extrinsic proof." Anton, supra, 598 S.W.2d at 496; Langworthy, supra, 368 S.W.2d at 388. Sensibly read, the articles in question here do not accuse plaintiff of fraud or misconduct and do not attack his professional competence.

Count I

At the time of the publications in question, plaintiff apparently was the Director of Support Services for the St. Louis County Special School District. From the record, we assume he was authorized to let contracts for the provisions of goods and services for the School District.

In Count I, plaintiff sets out five basic statements which, he alleges, defamed him. Three of these statements were published either on June 15, 1983 or June 16, 1983. Plaintiff's original petition was filed on June 21, 1985, more than two years after these publication dates, and his second amended petition, first alleging these three statements, was filed on November 10, 1986, some three years after the publication dates. Any libel action based on these three statements is barred by the applicable two year statute of limitations. Section 516.140 RSMo 1986.

Nonetheless, we set these publications out to respond completely to plaintiff's complaint against two statements which were published on June 29, 1983 and were set out in plaintiff's original petition.

June 13, 1983

Four no-bid architectural contracts were awarded last year by the Special School District of St. Louis County to a firm that had formerly employed the School Board President Joseph J. Sparacio. The contracts were awarded in a way that concealed the firm's identity.

June 16, 1983

Capobianco [plaintiff] ... had been hired improperly by School Board members in contravention of state guidelines calling...