Clark v. McBaine
| Decision Date | 08 June 1923 |
| Parties | GEORGE L. CLARK, Appellant, v. J. P. McBAINE et al |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
Ralph T. Finley and Abbott, Fauntleroy, Cullen & Edwards for appellant.
(1) In construing an alleged libelous publication, the court should take the article as a whole and determine its meaning and effect from its entire contents and from the occasion surrounding circumstances, and the apparent object of the writer. St. James Military Academy v. Gaiser, 125 Mo. 526; Julian v. Kansas City Star, 209 Mo. 76; 25 Cyc. 357. (2) The alleged statement, signed by members of the law faculty and published by the president of the University was defamatory because it tended to injure the plaintiff in his vocation as a teacher. 17 R. C. L. 305; 25 Cyc. 336; 18 Am. & Eng. Ency. Law, 964; Spears v. McCoy, 115 Ky 1; Dixon v. Allen, 69 Cal. 527; Lindley v. Horton, 27 Conn. 58; Henry v. Moberly, 6 Ind.App. 490. (3) The fact that the statement is expressed in the form of an opinion does not prevent it from being defamatory, because the statement of an opinion necessarily implies a statement that there are facts justifying the opinion, and indeed, the statement in question expressly states that there were facts known to the faculty, which facts are withheld from the public. 18 Am. & Eng. Ency. Law, 971; McGowan v. Menifee, 7 T. B. Mon. (Ky.) 314, 18 Am. Dec. 178; Simmons v. Holster, 13 Minn. 249; Miller v. Miller, 8 Johns. (N. Y.) 74; Logan v. Steele, 1 Bibb. (Ky.) 593, 4 Am. Dec. 659; 25 Cyc. 360. (4) The alleged statement was not privileged because there was no privileged occasion; in order that there be a privileged occasion, there must be some legitimate interest to be protected, either of the maker, or recipient, or of the public. 18 Am. & Eng. Ency. Law, 1029; Henry v. Moberly, 6 Ind.App. 490; 25 Cyc. 388. (5) Even if there had been a privileged occasion, the express withholding of the facts upon which the alleged opinion was based would forfeit the privilege. Furthermore, malice and falsity are alleged in the petition, which if sustained, would forfeit the privilege. The plaintiff was entitled to have his evidence of malice and falsity of the statements submitted to the jury. 18 Am. & Eng. Ency. Law, 1012; Manby v. Witt, 18 C. B. 544, 546; St. James Military Academy v. Gaiser, 125 Mo. 527; McClung v. Pulitzer Pub. Co., 214 S.W. 202; Callahan v. Ingram, 122 Mo. 365. (6) The alleged statement cannot be excused as fair comment, because comment must be based upon either acknowledged or proved facts, so that the public may judge for itself whether the comment is fair. In the case at bar, the facts upon which the supposed comment is based are expressly withheld by the signers of the statement, and there is in fact no comment at all. 18 Am. & Eng. Ency. Law, 1021; Christie v. Robertson, 10 N. S.W. 157; Broadbent v. Small, 2 Vict. L. Rep. 121; Belknap v. Bell, 83 Mich. 583; Merivale v. Carson, L. R. 20 Q. B. Div. 275; Pattison v. Gulf Bag Co., 116 La. 963. By the great weight of authority, the privilege of fair comment never includes the privilege of making false statements. 18 Am. & Eng. Ency Law, 1041; Davis v. Shepstone, 11 App. Cas. 187; Burt v. Advertiser Co., 154 Mass. 512; Hays v. Clinton Printing Co., 169 Mass. 512. In Missouri the majority doctrine has been repeatedly affirmed. Walsh v. Publishing Co., 250 Mo. 142; Diener v. Publishing Co., 230 Mo. 613; Hagner v. Publishing Co., 172 Mo.App. 436; McClung v. Publishing Co., 279 Mo. 370; Smith v. Burrus, 106 Mo.App. 102, 106. In a minority of jurisdictions there has been a relaxation of this rule where candidates for office are commented upon by the voters, but apparently this so-called liberal rule has never been extended further than to such persons. 18 Am. & Eng. Ency. Law, 1042; Coleman v. Maclennan, 78 Kan. 711; Briggs v. Garrett, 111 Pa. St. 404. (7) The alleged statement cannot be excused on the ground of mutual recrimination or consent of the plaintiff, because the plaintiff's prior statements were not defamatory of anyone; and since the privilege of mutual recrimination is analogous to the privilege of self-defense from an assault, it does not arise until the defendant himself has been defamed and extends only to statements made in good faith as an answer thereto. Fish v. Publishing Co., 102 Mo.App. 6, 22; Myers v. Kaichen, 75 Mich. 272; Brewer v. Chase, 121 Mich. 526; 25 Cyc. 391. (8) Even if the language used is ambiguous and doubtful, it is for the jury to say in what sense it was used and in what sense the readers understood it. McGinnis v. Knapp & Co., 109 Mo. 141; Caruth v. Richeson, 96 Mo. 186; Julian v. Kansas City Star, 209 Mo. 78; Ukman v. Daily Record Co., 189 Mo. 394; Peak v. Taubman, 251 Mo. 414.
Boyle Gordon Clark and Guthrie & Conrad for respondents.
(1) A demurrer lies to a petition sounding in tort for libel the same as in other actions, and it is for the court to determine by judicial construction the legal effect and force of the terms of the written instrument of which complaint is made, provided those terms are unambiguous and are set forth in the petition as the foundation of the cause of action. Diener v. Chronicle Publishing Co., 230 Mo. 620; Walsh v. Publishing Company, 250 Mo. 149; Donovan v. Boeck, 217 Mo. 70. (2) The statement of which complaint is made, together with the preferatory allegations by way of inducement, is not ambiguous and does not constitute libel. The facts and circumstances constitute the preferatory allegations by way of inducement in plaintiff's petition, and when the statement complained of be considered in the light thereof it is unambiguous and does not constitute libel. Cook v. Publishing Company, 241 Mo. 326, 344; O'Connor v Sill, 60 Mich. 175; Newell on Slander and Libel (3 Ed.) p. 735; Walsh v. Pulitzer Publishnig Co., 250 Mo. 142; Branch v. Knapp & Co., 222 Mo. 580, 605; Cobb v. Tinsley, 243 S.W. 1009. (3) The statement of which plaintiff complains is privileged fair comment for the following reasons: (a) It was a communication justified and necessary to protect the defendants' interests; (b) As a comment upon a matter of public interest; (c) As a discussion of the fitness and qualifications of plaintiff to hold the position of teacher in the law faculty of the University of Missouri. (a) It was a communication justified and necessary to protect the defendants' interests. An examination of plaintiff's petition shows that the plaintiff in his interview in the St. Louis Post-Dispatch charged the president of the University in effect with having lost the confidence of the faculty of the University and of having become a serious obligation to the University. That he, plaintiff, undertook to determine how widespread and acute the obligation of the, president of the University was with the ultimate end of forcing his resignation. The president of the University was head of the law faculty and the charge of the plaintiff indicated lack of harmony in the faculty of the law school, and therefore the law school and the law faculty were personally and directly interested and the public had a right to expect in view of the positions held by the defendants that they would not remain passive on the issues in controversy initiated by plaintiff through the press. Fish v. St. Louis County Printing & Pub. Co., 102 Mo.App. 6; Newel on Slander & Libel (3 Ed.) pp. 614, 625; Clink v. Colby, 46 N.Y. 427; Chaffin v. Lynch, 83 Va. 106; White v. Nichols, 3 How. 266; Bigman v. Van Benthuysen, 36 La. Ann. 38; O'Connor v. Sill, 60 Mich. 175. (b) The School of Law is a department of the State University, which is a state institution established by the Legislature, governed in accordance with legislative provisions, supported by public taxation. Arts. 18, 22 and 23, Chap. 102, R. S. 1919; Art. 11, secs. 5 and 6, Mo. Constitution. This acts of the president of the State University, the action of the Board of Curators in discharging the plaintiff, the charges made by the plaintiff against the president of the University, particularly the charge that the president of the University had lost the confidence of the faculty of the school and the statement of the defendants upon the subject-matter of such controversy initiated by plaintiff through the press, answer to which was impliedly invited, were of public interest and comments thereon were qualifiedly privileged. Diener v. Chronicle Publ. Co., 230 Mo. 630; Atkinson v. Detroit Free Press Co., 46 Mich. 341; McClung v. Pulitzer Pub. Co., 279 Mo. 370; Townsend or Slander & Libel (4 Ed.) sec. 258; Cooley on Constitutional Limitations, ch. 12, p. 645; Odgers on Libel & Slander, p. 248; Cook v. Publishing Co., 241 Mo. 360; Sweeney v. Baker, 13 W.Va. 158; Callahan v. Ingram, 122 Mo. 365. (c) Plaintiff having sought to be reinstated a teacher in the law faculty of the University of Missouri -- a public position of great responsibility and of manifest interest to the people generally of the State -- his fitness and qualifications for that position were subjects for public comment, and as such were privileged. Walsh v. Pulitzer Publ. Co., 250 Mo. 142; Sweeney v. Baker, 13 W.Va. 158. (4) The statement of the faculty of the law school of the University of Missouri complained of does not touch the plaintiff in his relation to the faculty and the law school of the University of Missouri, because at the time of the publication of the article the plaintiff no longer sustained any relation of professor with either the faculty or the School of Law. He theretofore had been dismissed as such law professor, and therefore, the article could not have touched him in that special manner. Baldwin v. Walser, 41 Mo.App. 243; Spurlock v....
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