Coots v. Payton

• Decision Date: 13 June 1955
• Docket Number: No. 44269,44269
• Citation: 280 S.W.2d 47,365 Mo. 180
• Parties: Dave COOTS, Plaintiff-Appellant, v. Bonnle PAYTON and D. Wayne Rowland, d/b/a The Seymour Citizen, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 47

280 S.W.2d 47

365 Mo. 180

Dave COOTS, Plaintiff-Appellant, v.Bonnle PAYTON and D. Wayne Rowland, d/b/a The Seymour Citizen, Defendants-Respondents.

No. 44269.

Supreme Court of Missouri, En Banc.

June 13, 1955.

John Hosmer, Marshfield, John Newberry, Springfield, for appellant.

Haymes & Haymes, Ellsworth Haymes, Marshfield, Combs & Combs, J. Carrol Combs, Lamar, for respondents.

COIL, Commissioner.

Plaintiff-appellant has appealed from a judgment which, in effect, dismissed his three count amended petition in which he sought $60,000 actual and punitive damages from defendants-respondents for alleged libel.

Respondents have moved to dismiss the appeal on the ground that the transcript was filed out of time.The notice of appeal was filed February 13, 1954, and the transcript May 28, 1954, fourteen days beyond the expiration of 90 days from the filing of the notice of appeal.Section 512.130.(All section references are to RSMo 1949, V.A.M.S.).The transcript, as filed here, contained this entry under date of May 25, 1954: 'Upon motion of plaintiff's attorney, John Hosmer, the Court this day enlarges and extends period of time for filing transcript on appeal a period of twenty days on account of failure to file within 90 day period being due to excusable neglect.'Sections 506.060,2(2)and512.140 authorize a trial court to extend the period for filing a transcript where that court determines that the failure to have filed in time was the result of excusable neglect; subject, of course, to the provision of S.C. Rule 3.26, 42 V.A.M.S., that the total period of the extensions granted by the trial court shall not exceed six months from the date the notice of appeal is filed in the trial court.It appears from counsels' affidavits and counteraffidavits that plaintiff's motion to extend the time for filing the transcript was not in writing and that no notice was given by plaintiff to opposing counsel that the plaintiff intended to apply for the extension.It seems agreed, however, that the trial court, prior to making the order above noted, advised one of defendants' counsel that the motion had been made and that the court intended to sustain it and make the order extending the time.Defendants' counsel, then present in court, objected on the sole ground that, inasmuch as he was not the chief defense attorney in the case, he did not know whether such chief attorney would consent to the extension.No objection was made that the failure of plaintiff to file the transcript within 90 days was not the result of excusable neglect.Under the circumstances, we are of the opinion that there has been no such violations, if any, of procedural steps as to call for the dismissal of this appeal.The motion to dismiss is, therefore, overruled.SeeBaldwin v. Desgranges, 355 Mo. 959, 966, 199 S.W.2d 353, 354, 355.

Plaintiff's original petition contained 4 counts.Defendants' motion to dismiss was overruled as to count 1 and sustained as to counts 2, 3, and 4.Defendants filed their separate answers to count 1.About a year later, the trial court granted plaintiff leave to file, and plaintiff filed, an amended petition.Count 1 of the amended petition was identical with count 1 of the original petition.Count 2 of the amended petition was identical with count 4 of the original petition, except that plaintiff included in count 2 of the amended petition the entire newspaper article from which the alleged defamatory matter set forth in original count 4 had been extracted.Count 3 of the amended petition combined in substantially identical form counts 2 and 3 of the original petition.The trial court sustained defendants' motion to dismiss count 1 of the amended petition and to strike counts 2 and 3, and granted plaintiff 10 days to file a motion for new trial.Plaintiff's motion for new trial was overruled and he has appealed from the judgment of the trial court, the effect of which, plaintiff contends, was to dismiss all 3 counts of his amended petition.

The briefs discuss the effect of the various rulings of the trial court.It seems to us, however, that the appeal in this case necessarily involves the sole question of whether each of the four counts of the original petition or each of the three counts of the amended petition stated claims upon which relief might be granted.Plaintiff could not appeal from the order dismissing counts 2, 3, and 4 of the original petition, because count 1 was still pending.It, therefore, is apparent that it is of no consequence whether we treat with the three counts of the original petition (which were dismissed) and count 1 of the amended petition(which was dismissed), or with all three counts of the amended petition.It would, therefore, serve no useful purpose to discuss or determine the validity of the parties' views as to the effect of the sustention of defendants' motions to strike or as to the claimed abuse of discretion by the trial court in permitting an amended petition to be filed a year after the dismissal of three counts of the original petition.We, therefore, proceed to decide whether counts 1, 2, and 3 (or any of them) of the amended petition state claims upon which relief may be granted.

All three counts are identical in these averments: that defendants are the editors and publishers of a weekly newspaper circulated and read by the general public in the City of Seymour and throughout Webster and adjoining counties; that on a certain date (specified in the various counts)'a certain article concerning the plaintiff was printed in said newspaper containing the following false, defamatory, malicious and libelous words about and concerning the plaintiff, * * *.'Each count, after setting forth the words allegedly published, proceeded: that the 'good name, fame and reputation' of the plaintiff have been injured and that he has been brought into 'public reproach, ridicule, disgrace, contempt, and infamy; that he has been caused to suffer great mortification, humiliation, embarrassment and shame; * * *.'The prayer of each count was for $10,000 actual and $10,000 punitive damages.

The allegedly defamatory communications set forth in counts 1, 2, and 3, respectively, are:

Count 1."Personally I'd still like to put in a plug for having a city marshal who looked like a law enforcement officer.Put him in something that looks like a uniform even if its just matching khaki shirt and pants.Insist that his badge and belts and weapons be worn out in the open.Nobody likes to be ticketed by a guy who looks just like anybody else loafing on the curb, and who reaches way down deep in his longies under his unbuttoned overalls to drag out his horse pistol or black jack."

Count 2."Dave Coots, Seymour's infamous ex-marshal, * * *' and that the whole of said article, including the caption or headline, but excluding the picture of the plaintiff which was also printed adjoining said article, is set out haec verba below:

"Marshall Arrested By Coots Goes To Marshfield Jail

"Dave Coots, Seymour's infamous exmarshall, Tuesday morning was appointed as a special officer by John Holmquist, police judge, to arrest James Hamblin, present city marshal, on a contempt-of-court charge?"(It is unnecessary to here set forth the other paragraphs of the article.)

Count 3."This is not my idea, but someone told me he had a sure scheme for filling the coffers of the City of Seymour.In view of the widespread publicity given our Marshal recently, he said, the City Council should put Dave in a cage and charge admission to tourists."[And a later article]: "I actually feel sorry for a man who can't take a little good natured ribbing.Last week I made a couple of cracks about Dave Coots in this column which everyone considered amusing except, of course, Dave himself.Dave's law enforcement officer, at least the City Council seems to think he is.He ought to be well enough acquainted with the law to know that if a newspaper says something slanderous or libelous about someone, that person can sue, * * * like several other Seymourites I'm tired of being pushed around by a one-man army.It's one thing to have proper law enforcement.It's another thing to have law enforcement that's crude, belligerent, unfair, and at times ignorant."

Article I, Sec. 8, V.A.M.S. Const. 1945, provides that the jury, under the direction of the court, shall determine the law and facts in suits for libel.It is well established, however, that a petition in which damages are sought for defamation by libel is subject to a motion to dismiss.Jacobs v. Transcontinental & Western Air, 358 Mo. 674, 680, 216 S.W.2d 523, 526[6, 7], 6 A.L.R.2d 1002, and cases there cited.But the function of a trial court and of an appellate court in determining the sufficiency of a petition setting forth a claim for damages for libel is necessarily limited to a determination of whether the communication set forth in the petition, together with matters of inducement and innuendo which may be there contained, is capable of a defamatory meaning.This function may require the court to determine whether the communication reasonably conveyed the meaning ascribed to it by plaintiff and, if so, whether that meaning was defamatory in character.Restatement, Torts, Vol. 3, Sec. 614, p. 304.

Preliminary to a consideration of the alleged libels set forth in the three counts of the amended petition, it would be well to here dispose of some general propositions and isolate the exact question for decision.It is not specifically averred in the amended petition that plaintiff was or had been, during the time of the various publications, the city marshal of the town of Seymour.Indeed, so far as the petition is concerned, it is alleged that the statements that plaintiff was or had been such marshal were false.Defendants contend, however, that it affirmatively appears that plaintiff was a public official and that defendants were editors and publishers of a...