Cook v. Pulitzer Pub. Co.

• Decision Date: 14 November 1911
• Citation: 145 S.W. 480
• Parties: COOK v. PULITZER PUB. CO.
• Court: Missouri Supreme Court

145 S.W. 480

COOK v. PULITZER PUB. CO.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

On Motion for Rehearing, March 21, 1912.

1. TRIAL (§ 418)—DEMURRER TO EVIDENCE— WAIVER.

Defendant waived its rights, under a demurrer to the evidence at the close of plaintiff's evidence, by offering evidence to support the answer and renewing the demurrer at the close of all of the evidence.

2. LIBEL AND SLANDER (§ 123)—TRIAL—DEMURRER TO EVIDENCE.

It is proper in libel and slander to challenge the sufficiency of plaintiff's case as to the law and evidence by an instruction in the nature of a demurrer.

3. LIBEL AND SLANDER (§ 80)—ARTICLES LIBELOUS—IMPUTATION OF CRIME.

The petition in libel against a newspaper for charging that plaintiff, when Secretary of State, permitted a private bank, owned in part by a political friend of plaintiff, and member of his party organization, to remain open after it was insolvent alleged those facts, and continued, "`Is the damaging derelict a part of the political junk of the old "Democratic state machine" (insinuating and meaning thereby that the plaintiff herein while Secretary of State * * * was guilty of willful and malicious partiality, neglect and misconduct in his official capacity and of favoritism and violation of official duty and was actuated by * * * improper motives in the matter of the examination and supervision of said * * * bank, * * * whereby said bank was permitted to carry on its business after it had become insolvent)?'" resulting in loss to the depositors, and further alleged, as a matter of inducement, though following the innuendo, that defendant, in the manner aforesaid, falsely and maliciously published a charge that plaintiff, while administering his office of Secretary of State, was guilty of partiality, misconduct, and violation of official duty in examining and supervising the bank. Rev. St. 1909, § 4411, makes every person holding public office, who shall be guilty of willful and malicious partiality, misconduct, or abuse of his official capacity, guilty of a misdemeanor. Held, that the petition did not allege a libel per se by the publication of an article charging plaintiff with crime, since it did not allege that any official misconduct was willful or malicious.

4. LIBEL AND SLANDER (§ 7) —LIBELOUS WORDS—WORDS IMPUTING CRIME.

While the absence of words imputing crime does not necessarily prevent a publication from being libelous per se, a written imputation of crime does constitute a libel per se.

5. LIBEL AND SLANDER (§ 123) — TRIAL— PROVINCE OF COURTS.

Whether the alleged libelous words were capable of the meaning ascribed to them, and whether the petition was sufficient, is a question for the court, and not for the jury.

6. LIBEL AND SLANDER (§ 81)—MATTER OF INDUCEMENT—NECESSITY OF INDUCEMENT.

If a publication directly imputes a crime, so as to be libelous per se, the petition need not allege any extrinsic facts as matter of inducement, though, if extrinsic facts be necessary to show the defamatory meaning, such facts must be alleged as inducement to make the words actionable.

7. LIBEL AND SLANDER (§ 81)—INDUCEMENT —PLACE IN PETITION.

The inducement should precede the alleged libel and innuendo in the petition, and not follow it.

8. LIBEL AND SLANDER (§ 86)—INDUCEMENTS.

Failure to allege a proper inducement in libel cannot be supplied by innuendo; and words, not in themselves actionable, cannot be made so by innuendo, without matter of inducement making them defamatory.

9. LIBEL AND SLANDER (§ 80)—ALLEGATIONS OF PETITION—OFFICIAL MISCONDUCT.

The petition in libel for charging plaintiff with official misconduct alleged that defendant newspaper published an article, charging that while plaintiff was Secretary of State, with supervision over state banks, a certain bank had been insolvent since a certain date, and that one of the proprietors of the bank was a member of the political organization to which plaintiff belonged, and an intimate political friend of the machine leaders of such party, that the bank's books were examined just before plaintiff went out of office, but that the bank was not closed; and the petition further alleged that the article concluded, "Is the damaging derelict a part of the political junk of the old `Democratic state machine?'" meaning thereby that plaintiff, while Secretary of State, was guilty of willful and malicious partiality and misconduct in his official capacity, and was actuated by improper motives in the examination and supervision of such bank, by which it was permitted to carry on its business after becoming insolvent, causing loss to property owners. Held, that the petition sufficiently charged a libel per se in charging corrupt and improper conduct in office.

10. LIBEL AND SLANDER (§ 123)—ACTIONS— JURY QUESTION.

Evidence in libel for charging official misconduct by plaintiff, while Secretary of State, in failing to have an insolvent bank examined and closed held insufficient to take the case to the jury.

11. LIBEL AND SLANDER (§ 49)—COMMENT ON PUBLIC OFFICERS — JUSTIFICATION OF COMMENT.

In libel for charging that plaintiff, while Secretary of State, failed to have a private bank, owned by a political friend, who was a member of the Democratic state committee, to which plaintiff belonged, examined, and permitted it to remain open after it was insolvent, the evidence showed that plaintiff and one of the owners of the bank were close political friends, that the insolvent bank had not been examined for two years, during which time all of the other banks in the district had been examined, some of them several times. After reciting the above facts, the alleged libel concluded, "Is the damaging derelict a part of the political junk of the old `Democratic state machine?'" Held, that the quoted statement was equivalent to a query whether the insolvent bank was allowed to remain open and do business because of the political friendship between plaintiff and the owners of the bank, and was justified as a newspaper comment, upon the facts.

12. LIBEL AND SLANDER (§ 48)—PRIVILEGED COMMUNICATIONS—NEWSPAPER COMMENT.

A newspaper has the right to fairly and honestly comment on matters of public interest, such as the official conduct of a public officer.

13. LIBEL AND SLANDER (§ 50)—PRIVILEGED COMMUNICATIONS—NEWSPAPER COMMENT— EXTENT.

The right of a newspaper to comment, within its privilege, on matters of public interest, such as the conduct of a public officer, includes the right to express opinions as to his acts, and to draw inferences as to his motives, whether they be right or wrong, or reasonable or unreasonable, provided they are made in good faith and based on facts.

14. LIBEL AND SLANDER (§ 51)—PRIVILEGED COMMUNICATIONS—NEWSPAPER COMMENT.

Newspaper comment on the acts of a public officer are not privileged where made maliciously.

15. LIBEL AND SLANDER (§ 123) — JURY QUESTION—GOOD FAITH OF COMMENT.

Whether a newspaper comment upon the acts of a public officer is fair and honest is a question for the jury.

16. LIBEL AND SLANDER (§ 101)—ACTIONS— BURDEN OF PROOF.

The burden is on plaintiff in libel to prove that a newspaper comment upon a matter of public interest is unfair and dishonest.

On Motion for Rehearing.

17. LIBEL AND SLANDER (§ 54)—DEFENSES — TRUTH.

Irrespective of malice, the truth is always a defense in libel actions under the constitutional guaranty.

18. LIBEL AND SLANDER (§ 50)—BURDEN OF PROOF.

While plaintiff must prove both express malice and falsity in order to overthrow the defense of privileged communications, where the defense is the qualifiedly privileged comment by a newspaper on matters of public interest, plaintiff need only show the falsity of the comment, or that it was with actual malice.

19. LIBEL AND SLANDER (§ 101)—BURDEN OF PROOF—TRUTH.

Defendant has the burden of proving the truth of the alleged libel.

20. LIBEL AND SLANDER (§ 10)—CONSTRUCTION OF LIBELOUS ARTICLES.

The alleged libelous newspaper article, charging that plaintiff, while Secretary of State, permitted the private bank of a political friend to remain open, without examination, after it was insolvent, stated that the bank books were examined just before plaintiff went out of office, but no action was taken, and the bank was left open to take the money of unsuspecting depositors. Held, that the article did not charge that plaintiff was responsible for keeping the bank open after he went out of office.

Appeal from Circuit Court, Boone County; Ed. Hinton, Special Judge.

Action by Sam B. Cook against the Pulitzer Publishing Company. From a judgment for plaintiff, defendant appeals. Reversed.

Judson & Green and E. C. Crow, for appellant. W. M. Williams and Silver & Dumm, for respondent.

KENNISH, P. J.

This is an appeal from a judgment in an action for libel. The suit was brought in the circuit court of Cole county. On the application of the defendant, a change of venue was awarded to the circuit court of Boone county, where, upon a trial, at the January term, 1906, a verdict was returned in favor of plaintiff for $50,000, $25,000 as compensatory damages, and a like sum as punitive damages. Judgment was rendered accordingly, and defendant appealed to this court.

By way of inducement and colloquium, it is alleged in the petition substantially that plaintiff held the office of Secretary of State in this state from the second Monday in January, 1901, until January 9, 1905, and that as such officer it was his duty under the law, either in person or by bank examiners appointed by him, to examine into the financial condition of all state banks of this state, and to require the said banks to comply with the laws relating to them; that during plaintiff's term of office Harvey W. Salmon and G. Y. Salmon were the owners of a private bank, and were engaged in the banking business at the city of Clinton, in this state, under the name of "Salmon Bank"; that the said bank continued in...