Cook v. Globe Printing Co.

• Citation: 227 Mo. 471,127 S.W. 332
• Parties: COOK v. GLOBE PRINTING CO. OF ST. LOUIS.
• Decision Date: 30 March 1910
• Court: United States State Supreme Court of Missouri

127 S.W. 332

227 Mo. 471

COOK v. GLOBE PRINTING CO. OF ST. LOUIS.

Supreme Court of Missouri.

March 30, 1910.

Rehearing Denied April 26, 1910.

1. CORPORATIONS (§ 503) — ACTION AGAINST — VENUE — LIBEL.

Under Rey. St. 1899, § 997 (Ann. St. 1906, p. 878), providing that suits against corporations shall be commenced either in the county where the cause of action accrues, or in any county where the corporation shall have an office or agent for the transaction of its business, one libeled by a newspaper corporation may commence his action in any county where the publication is made, or in which defendant's newspaper containing the libelous article is circulated.

2. LIBEL AND SLANDER (§ 75) — ACTIONS — JURISDICTION.

Circuit courts have jurisdiction of libel actions.

3. APPEARANCE (§§ 19, 24) — JURISDICTION.

Where a court has jurisdiction of a class of cases, a defendant, whether a natural or artificial person, may confer jurisdiction over his or its person by entering a general appearance, and, when such appearance is entered, defendant waives any question of the illegality or irregularity of the notice by which he or it was brought into court.

4. APPEARANCE (§ 9) — "GENERAL APPEARANCE" — FILING PETITION FOR CHANGE OF VENUE.

The appearance of a defendant by filing a petition for a change of venue is a "general appearance," and gives the court jurisdiction of its person.

5. APPEAL AND ERROR (§ 840) — REVIEW — CONSTITUTIONAL QUESTIONS.

Where the lower court in overruling a plea to the jurisdiction could have done so upon the general principles of law, and without any reference to a federal question injected into the case in such plea involving the construction of a statute, the Supreme Court need not pass upon such question.

6. ACTION (§ 53) — SPLITTING — TORTS.

A single tort gives rise to one cause of action only, and cannot be split up into separate suits, but the damages resulting therefrom must be assessed in the same suit.

7. ACTION (§ 38) — PLEADINGS — MISJOINDER OF ACTIONS.

In a libel action, based upon a newspaper publication, the injury alleged flowing from the single act, a petition charging accusations of plaintiff's perjury, and his making of a false voluntary affidavit, is not bad as joining two separate and distinct libels.

8. LIBEL AND SLANDER (§ 22) — ACTIONABLE WORDS — CERTAINTY.

In a libel action, defendant is liable for what is insinuated as well as for what is stated explicitly; and it is immaterial that the words used concerning plaintiff are indefinite and uncertain in their meaning if on the whole they are defamatory, and were so intended and understood.

9. LIBEL AND SLANDER (§ 123) — ACTIONS — QUESTIONS FOR JURY — CONSTRUCTION OF PUBLICATION.

Under the Constitution, it is the privilege of the jury in a libel action to construe the publication under the instructions of the court.

10. LIBEL AND SLANDER (§ 86) — ACTIONABLE WORDS — PLEADING — INNUENDO.

A newspaper article under the heading "Wrecks through covering up and fraud in campaign contributions" alleged that plaintiff, who was chairman of the Democratic State Committee, had received a contribution for the campaign fund, had talked with other Democrats as to whether it would be a wise thing to put it in as an item in a sworn statement of receipts to be published after the election as required by law; that S., another Democrat, had said it would never do to let it get out that the subscriber had contributed so much money to the fund; that plaintiff in his report put the contribution to the credit of himself; that "the only thing that explains the difference made between * * *" plaintiff and S., is that plaintiff "is the man that swore to what wasn't so"; that "Bill didn't pretend that he can prove

anything like it was proved in Sam's (plaintiff's) case, but * * * winds up by denouncin' in thunder tones every man who would commit a perjury by making a false oath in such a case, an' demandin' a law that'll send them all to the penitentiary;" that "the average Missourian stands for honest government. If one party can't give it to him, he'll try the other, and the big thing that made him try the other was when the machine tried to gag him an' force a lie down his throat after Sam Cook (plaintiff) had sworn that he contributed $2,500 for the campaign fund that it was contributed by another man * * *; that they are a God-fearin' people, and the man who'll do what Sam done to serve his party or hisself instead of the Lord, an' will take the name of the Lord in vain, in swearin' to an untruth will never meet their approval." Held, that the publication was libelous without a colloquium, both under Rev. St. 1899, § 2259 (Ann. St. 1906, p. 1425), defining libel, and at common law; being reasonably susceptible of the interpretation that it charged plaintiff with perjury.

11. LIBEL AND SLANDER (§ 124) — INSTRUCTIONS.

In an action for libel involving a publication libelous per se in charging the making of a voluntary false affidavit, it was not error to modify a charge requested by defendant that plaintiff complained of portions of the article because they charged him with being guilty of voluntarily making a false affidavit, and of falsely taking an oath prescribed by law, and that, by so doing, plaintiff had been guilty of perjury, and that unless it appeared from the evidence that the portions of the publication complained of did in fact charge plaintiff with perjury plaintiff could not recover, by adding, after the words "crime of perjury," the words "or of making a voluntary false affidavit."

12. LIBEL AND SLANDER (§ 123) — ACTIONS — DEMURRER TO EVIDENCE.

In an action for libel involving a newspaper article, charging plaintiff who was chairman of a political state committee with making a false affidavit as to campaign contributions to expenses, where the petition alleged that such publication was false and malicious, and the evidence showed that not only did plaintiff not make a false affidavit, but that he made no affidavit whatever as claimed; the affidavit being made by the treasurer of the committee, demurrers to the evidence were properly overruled.

13. LIBEL AND SLANDER (§ 100) — ADMISSIBILITY OF EVIDENCE — JUSTIFICATION.

Where defendant in action for libel denied the allegations of the petition charging that the alleged libelous publication was false and malicious, but did not plead the truth of the charges, defendant could not avail itself of a claim that the charges against plaintiff were true, either under Rev. St. 1899, § 636 (Ann. St. 1906, p. 657), providing that, in libel actions, defendant may in his answer allege the truth of the matter charged, nor at common law.

14. LIBEL AND SLANDER (§ 101) — BURDEN OF PROOF — JUSTIFICATION.

In action for libel, the falsity of all defamatory words is presumed in plaintiff's favor; the burden being on defendant to rebut the presumption by giving evidence in support of the plea of justification.

15. LIBEL AND SLANDER (§ 101) — BURDEN OF PROOF — DEFENSE OF PRIVILEGE.

Where a publication is libelous, and the petition avers it to be false and malicious, the burden of proving that it was privileged as proper criticism of a public officer, is on defendant, and hence he cannot present his defense by demurrer to the evidence.

16. LIBEL AND SLANDER (§ 51) — PRIVILEGED COMMUNICATIONS — CRITICISM OF PUBLIC OFFICERS.

Officers and persons occupying public positions are subject to just criticism, but the constitutional liberty of speech and of the press simply guarantees the right to freely utter and publish whatever the citizen may desire and to be protected in so doing, provided the publications are not blasphemous, obscene, and scandalous, so that they may become an offense against the public, and by their malice and falsehood injuriously affect the character, reputation, or pecuniary interests of individuals.

17. APPEAL AND ERROR (§ 882) — RIGHT TO COMPLAIN.

Where defendant invites error through conflicting instructions by requesting a charge given, he cannot complain thereof.

18. APPEAL AND ERROR (§ 1033) — HARMLESS ERROR — INSTRUCTIONS.

An erroneous charge which could only have operated to the disadvantage of the successful party in the lower court is not ground for reversal.

19. LIBEL AND SLANDER (§§ 104, 107) — ACTIONS — ADMISSIBILITY OF EVIDENCE.

In action for libel involving a newspaper article, charging plaintiff with making a false affidavit as to contributions to campaign expenses, evidence tending to show that defendant's editorial manager had seen the affidavit prior to the publication, and had actual knowledge that the affidavit was not made by plaintiff was admissible; it being pertinent on the question of malice and punitive damages.

20. LIBEL AND SLANDER (§ 126) — PROVINCE OF JURY — CONSTITUTIONAL PROVISIONS — NEW TRIAL.

Bill of Rights, § 14 (Ann. St. 1906, p. 135), providing that in actions for libel the truth of the alleged libel may be given in evidence, and the jury shall determine the law and the fact, merely makes the jury the judges both of the law and fact on the main issue of libel or no libel, and does not curtail the court's power to grant a new trial on the ground that the verdict is excessive, or for any other recognized legal ground.

21. APPEAL AND ERROR (§ 1140) — DISPOSITION OF CAUSE — REMITTITUR.

An excessive verdict, not itself indicating that the jury were actuated by passion or prejudice, and there being no error in the admission or rejection of testimony, or in the court's charges, and no misconduct of the jury, and the evidence establishing that plaintiff was entitled to a substantial verdict, the action being for unliquidated damages, the Supreme Court may require a remittitur as a condition of affirmance where a verdict is excessive.

22. LIBEL AND SLANDER (§ 121) — DAMAGES — EXCESSIVE RECOVERY.

In determining whether a verdict in an action for libel against a newspaper company evinces prejudice or passion, the nature of...