Davis v. Missourian Pub. Ass'n

• Decision Date: 06 August 1929
• Docket Number: 27764
• Parties: I. L. Davis, Appellant, v. Missourian Publishing Association
• Court: Missouri Supreme Court

19 S.W.2d 650

323 Mo. 695

I. L. Davis, Appellant, v. Missourian Publishing Association

No. 27764

Supreme Court of Missouri

August 6, 1929

Appeal from Boone Circuit Court; Hon. David H. Harris Judge.

Affirmed.

Dorsey W. Shackelford and Ruby M. Hulen for appellant.

(1) The publication complained of is libelous per se and contains two charges: (a) That the plaintiff, while a member of the council of the city of Columbia, was guilty of graft and corruption in office in that he had illegally secured money from said city without the knowledge or approval of the city council; and (b) that the plaintiff, while an officer of the city, had been guilty of unlawfully being interested in a contract with said city, and in work done by said city, and in furnishing supplies for said city and its institutions. Diener v. Pub. Co., 232 Mo. 418; Cook v. Pub Co., 241 Mo. 329; Link v. Hamlin, 270 Mo. 319; Ukman v. Daly Record Co., 189 Mo. 378; Morris v Salier, 154 Mo.App. 305; Farley v. Pub. Co., 113 Mo.App. 216; 36 C. J. 1162-1172. (2) (a) Defendant's plea of privilege comment is at variance with the publication complained of, which is a statement of alleged acts of plaintiff, and not a comment. McClung v. Pub. Co., 279 Mo. 402. (b) Even if the court should find that the statement complained of was a comment, defendant's actual knowledge of its falsity destroyed the defense of privileged comment. Newell on Libel & Slander, p. 555; Cook v. Pub. Co., 241 Mo. 362; Cornelius v. Cornelius, 233 Mo. 31; McClung v. Pub. Co., 274 Mo. 194. (3) It is not a defense to an action for libel that the matter had been uttered by others and was published just as received from others. To publish a libelous article uttered by another is to adopt it. Byrne v. News Corp. & Young, 195 Mo.App. 367; Hogener v. Publishing Co., 172 Mo.App. 437. (4) Defendant's plea of truth as justification for the article complained of was not sustained by the evidence -- resulting in a question of fact which should have been submitted to the jury under proper instructions. Cook v. Pub. Co., 241 Mo. 347; Cook v. Printing Co., 227 Mo. 472. (5) The court erred in instructing the jury to return a verdict for the defendant. Sothan v. Telegram Co., 239 Mo. 606; Cook v. Printing Co., 227 Mo. 472; Hogener v. Publishing Co., 172 Mo.App. 438; Reynolds v. Publishing Co., 155 Mo.App. 619.

Harris, Price & Alexander and Clark, Boggs & Peterson for respondent.

(1) If respondent's newspaper article charged appellant with receiving money from the city of Columbia while a councilman of the city in violation of law, the admitted facts sustain the charge. Sec. 8237, R. S. 1919; State ex rel. v. White, 282 S.W. 147. (2) The newspaper article is an unambiguous statement of fact and is not libelous, and evidence as to how readers construed the article is inadmissible. Branch v. Publishing Co., 222 Mo. 580. (3) The statement in the article that appellant had received money from the Plant Extension Fund which had not been approved or made regular by the council was not libelous. Cook v. Publishing Co., 241 Mo. 344; McClung v. Publishing Co., 279 Mo. 400; Walsh v. Publishing Co., 250 Mo. 151; Church v. Bridgeman, 6 Mo. 190. (4) The fact that the appellant, a public officer, received money from the city of which he was councilman was a matter for the fair comment of a newspaper. Cook v. Publishing Co., 241 Mo. 355; Clark v. McBaine, 299 Mo. 77; McClung v. Publishing Co., 274 Mo. 215; McClung v. Publishing Co., 279 Mo. 397; State ex rel. Zorn v. Cox, 298 S.W. 837. (5) The statement in the printed article that the payment to appellant out of the Extension Fund of the Water & Light Department had not been approved by the council is not libelous. Secs. 8213, 8285, R. S. 1919. (6) The court properly directed the jury to return a verdict for the respondent under the pleadings and all the evidence. Walsh v. Publishing Co., 250 Mo. 142.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This an action for libel. At the close of defendant's evidence, the jury, at the direction of the trial court, returned a verdict for defendant, and, after an unsuccessful motion for a new trial, plaintiff appealed from the judgment entered on the verdict.

The evidence adduced on behalf of plaintiff warrants the finding that plaintiff, a contractor, was, at all times mentioned herein, a member of the council of the city of Columbia, a municipal corporation, and that defendant was the publisher of a newspaper in said city. In 1924 the city, without letting a contract, arranged to build an addition to its water-and-light plant. One Loomis was employed to superintend the construction thereof. To facilitate matters, the city council appropriated a fund, which was deposited in a bank in the name of R. H. Gray, secretary, and A. D. Donner, superintendent, of Water & Light Department. They paid the bills, including payrolls, which they reported every two weeks to the council, with vouchers, resulting that the council, by ordinance, would appropriate the equivalent of the sums expended during the period.

Loomis, once a partner of plaintiff, had been associated with him in business for fifteen or twenty years. On completion of the addition he again entered the employ of plaintiff. Loomis, during the absence of plaintiff and without his knowledge, appropriated the use of certain construction equipment and machinery owned by plaintiff. This equipment and machinery were used by Loomis in the construction of the addition. Plaintiff knew nothing of its use until it had been appropriated for that purpose, but, after discovering it, he acquiesced in its use by Loomis. He and Loomis stated that there was no agreement or understanding that plaintiff was to be paid by the city for the use thereof. Work commenced on the addition in September, 1924, and it was completed in May, 1925. On June 15, 1925, Loomis presented a statement to the city council, addressed to the Water & Light Committee of the city of Columbia, stating, in substance, that he proceeded to rent or hire this necessary equipment, consisting of a concrete mixer, etc., from Mr. I. L. Davis, amount due $ 403.20. On the statement appears the notation: "O. K. No. 870. Approved for payment by the city council. June 15, 1925." The minutes of the council of June 15, 1925, show that the account was ordered paid from the Plant Construction Fund, Mr. Davis, not voting. On June 20, 1925, Gray and Donner executed a check on the Power Plant Extension Fund for $ 403.20 to plaintiff, which was indorsed and deposited by his bookkeeper to his account in the bank and which he accepted, as the evidence develops. Plaintiff stated that he told the council that he was not making any charges whatever.

In the issues of its newspaper of June 16, 1925, in substance, defendant commented that, after a discussion of the legality of payments by the city to council members for services rendered, following a report by Loomis that he had rented certain necessary equipment from plaintiff, the city council decided to pay Councilman Davis, plaintiff, for the rent of certain equipment used in erecting the water and light plant addition.

The newspaper article, appearing on November 12, 1925, complained of as libelous, is headed: "Discussion of City Manager Plan Tonight. Advocates Issue Comparative Statement of Water & Light Plant. No Invoices for $ 1534.22. City Council Has Not Passed on Fund For New Addition to Building." The article, in substance, narrates that an open-air discussion of the city-manager form of government will be held, naming the places of meeting and the principal speakers. The pertinent portion of the article, after stating that a comparative statement of the water-and-light department for the years ending July, 1924, and July, 1925, has been made by those interested in the adoption of the city-manager plan, reads:

"This statement shows that the fund created by the council for the construction of the addition to the water-and-light plant has not been made regular by an appropriation from the council. The books of the water-and-light department still show that $ 7726.56 was spent from this fund, but the expenditures have not yet been approved by the council. This approval will have to be given by the council and an appropriation made to replace this amount in the revolving fund, in order that R. H. Gray and A. D. Donner may complete their records as former officials of the department and custodians of this fund.

"No invoices are filed in the records of the water-and-light department to cover the expenditure of $ 1534.22 of the $ 7726.56 not yet approved by the council. Of this amount not approved by the council a check for $ 251 was paid to J. E. Hathman and one for $ 403.20 to Ira L. Davis."

On November 16, 1925, the city council passed an ordinance, plaintiff voting aye, which ordinance, later approved by the mayor, reads:

"Section 1. That in compliance with the recommendations of the auditors of the Water & Light Department books, there be and there is hereby transferred from the Water & Light Fund to the Power Plant Fund the sum of $ 7726.56 and that there be and there is hereby transferred to the Emergency Fund from the Water & Light Fund the sum of $ 124.64.

"Section 2. This ordinance shall take effect and be in force from and after its passage and approval."

On cross-examination of the plaintiff, the following occurred:

"Q. You wanted to donate that much to the job? A. Well, if necessary.

"Q. What do you mean by 'if necessary'? A. If they had never offered me anything -- there had never been any charges and would not have been to this day.

"Q. You didn't intend to present any claim against them? A. No.

"Q. But you did intend to receive anything they gave you? A. Well,...