Diener v. Star-Chronicle Pub. Co.

CourtMissouri Supreme Court
Writing for the CourtLamm
Citation132 S.W. 1143,230 Mo. 613
Decision Date12 November 1910
PartiesDIENER v. STAR-CHRONICLE PUB. CO.
132 S.W. 1143
230 Mo. 613
DIENER
v.
STAR-CHRONICLE PUB. CO.
Supreme Court of Missouri.
November 12, 1910.

1. APPEAL AND ERROR (§ 713)—DEMURRER —RECORD.

A demurrer to the petition and the ruling thereon, being a part of the record proper, cannot properly be incorporated in the bill of exceptions; the ruling, if not waived, being reviewable as a part of the record proper.

[132 S.W. 1144]

2. APPEAL AND ERROR (§ 285)—RULINGS ON DEMURRER—MOTION FOR NEW TRIAL.

A motion for a new trial is not necessary for review of a ruling on a demurrer to the petition.

3. LIBEL AND SLANDER (§ 97)—PETITION—DEMURRER

A demurrer lies to a petition for libel, notwithstanding Bill of Rights, § 14 (Ann. St. 1906, p. 135), declaring that in libel the jury shall determine the law and the facts.

4. LIBEL AND SLANDER (§ 123)—PEREMPTORY INSTRUCTION.

Where, in an action for libel, the petition is not challenged by demurrer in limine, and the case is fully developed on the trial, and under the pleadings and evidence no case is made, the court may give a peremptory instruction, notwithstanding Bill of Rights, § 14 (Ann. St. 1906, p. 135), declaring that in such action the jury shall determine the law and the facts.

5. LIBEL AND SLANDER (§ 97)—PETITION—DEMURRER—CONSTRUCTION OF WORDS.

A demurrer to a petition for libel, which admits the fact of publication and the words used, does not admit an unfair and forced construction put on the words by the pleader.

6. LIBEL AND SLANDER (§ 123)—ACTION—PROVINCE OF COURT AND JURY.

While under Bill of Rights, § 14 (Ann. St. 1906. p. 135), declaring that, in an action for libel, the jury shall determine the law and the facts, the court may not by an instruction declare a certain publication libelous, but may in a given case declare that the publication is not libelous as matter of law.

7. EVIDENCE (§ 45)—JUDICIAL NOTICE—NOMINATIONS.

The Supreme Court will take judicial notice that on November 1, 1906, a general election was pending, and that a candidate for coroner in a certain county must have been theretofore nominated, if at all.

8. LIBEL AND SLANDER (§ 19)—PUBLICATION —LIBELOUS PER SE—CONSTRUCTION.

In a political campaign, defendant newspaper publishing company, under the caption, "Is he the same coroner?" published an article in the form of an interrogation asking whether B., "present incumbent and candidate for reelection, was the public official who joined with the police in letting Health Commissioner Bond's chauffeur go free, without bond or charge or investigation, after the latter had run down and killed a little child in the street, and if he is, would this be a good reason for continuing his term of office? Voters, with or without children, who think there should always be an inquiry into the mangling of such little tots, please answer at the polls." Held, that the use of the word "killed" in such article was not subject to the innuendo that it was intended to charge that plaintiff, who was the chauffeur, had feloniously taken the child's life, meaning nothing more than that the child was deprived of life, and that the article was not libelous per se, as to plaintiff, though it might have been libelous as to B. under the rule that a party cannot support a charge of libel by showing that the same publication libels another.

9. LIBEL AND SLANDER (§ 19)—LIBELOUS PUBLICATION—CONSTRUCTION.

If one part of an alleged libelous publication may explain another part, and the intent may be gathered not only from the alleged libelous words, but from the context, all parts of the publication must be read together to determine whether it is libelous in fact.

10. LIBEL AND SLANDER (§ 100)—PLEADING —OMISSION.

The omission of any part of an alleged libelous publication from a pleading, making a material alteration in the sense, is fatal.

11. LIBEL AND SLANDER (§ 105)—EVIDENCE—MEANING OF WORDS.

Where an alleged libelous publication referred to plaintiff as a chauffeur who had killed a child in the operation of an automobile, evidence that the word "killed" in such publication conveyed the idea to witness that plaintiff was guilty of the felonious taking of a human life was inadmissible.

12. CONSTITUTIONAL LAW (§ 90)—FREE SPEECH—FREEDOM OF PRESS.

While the courts are charged with the duty of protecting freedom of speech and of the press, it is the use, and not the abuse, of free speech and free press that is protected.

13. LIBEL AND SLANDER (§ 48)—MATTERS OF PUBLIC INTEREST—PRIVILEGE.

Plaintiff, while operating an automobile, struck and killed a child of tender age, and the coroner permitted the matter to pass without an official investigation. After the coroner had been nominated for re-election, defendant published a newspaper article with reference to the coroner in the form of an interrogation asking whether he was not the same person who joined with the police in letting plaintiff go free after he had run down and killed a little child in the street, and, if he was, whether that was a good reason for continuing his term of service, etc. Held that, since the killing of the child in a public street by an automobile was a matter of public interest, the publication, not being abusive or vituperative, was privileged as a matter of law.

In Banc. Appeal from St. Louis Circuit Court; Charles C. Allen, Judge.

Action by Joseph Diener against the Star-Chronicle Publishing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Robert & Robert, for appellant. Nathan Frank, for respondent.

LAMM, J.


Tort for libel. Cast on demurrer to his original petition, plaintiff pleaded over. Cast on demurrer to his amended petition,

132 S.W. 1145

he stood, refused to plead over, suffered judgment, filed a motion for a new trial, excepted to the order overruling the same, had his bill of exceptions settled, allowed, and filed, and came up on appeal. The amended petition reads: "Now comes Joseph Diener, plaintiff in the above-entitled cause, files this amended petition, and for his cause of action states: That the defendant, Star-Chronicle Publishing Company, is and was at all times hereinafter mentioned a corporation duly organized and existing under the laws of the state of Missouri. That at the time hereinafter mentioned said defendant was the publisher, proprietor, and printer of a certain daily newspaper of large circulation in and about the city of St. Louis, which said newspaper is published in the city of St. Louis, state of Missouri, and is known as the `St. Louis Star-Chronicle. That on, to wit, the 1st day of November, 1906, there was printed and published in said newspaper the following false, defamatory and libelous article or language, of and concerning the plaintiff, to wit: `Is He the Same Coroner? Isn't Coroner Jules C. Baron, present incumbent and candidate for re-election, the public official who joined with the police in letting Health Commissioner Bond's chauffeur go free, without bond or charge or investigation, after the latter had run down and killed a little child in the street, and if he is, would this be a good reason for continuing his term of service? Voters, with or without children, who think there should always be an inquiry into the mangling of such little tots, please answer at the polls.' That at all times referred to in said publication, the plaintiff was the chauffeur of Health Commissioner Bond, which fact the defendant well knew, and that this plaintiff was the chauffeur to whom the defendant referred in said publication, and that by said publication defendant thereby meant to charge this plaintiff with a crime involving moral turpitude, and with having willfully and wantonly taken the life of a human being. Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum of $10,000. Wherefore plaintiff prays judgment in the sum of $10,000, together with his costs." The demurrer reads: "Comes defendant, Star-Chronicle Publishing Co., and demurs to the amended petition of plaintiff filed in the above-entitled cause, for that: The matter and things stated and charged therein are not sufficient to constitute a cause of action against this defendant."

1. Plaintiff assumed to preserve his petition, the demurrer, the ruling sustaining it, his exception thereto, a motion for a new trial, and his exception to overruling the latter, in a bill of exceptions. Fortunately, it happens in this instance that no harm came to him by that course. This, for the reason that the record proper, brought up in his abstract, also preserved such matter and his point. But inadvertence in the use of rules of practice results in cases riding off on appeal without a disposition of the merits. In this view, caution is better than cure, as the precept puts it. Therefore, it is wise, to stamp out heresies, to put up signs at the point of divergence from the beaten path. Via trita est tutissima, 10 Coke, 142. To illustrate, if the ruling on the demurrer, the demurrer itself, and the trial petition had been preserved nowhere else than in a bill of exceptions, this appellant would have nothing here to review; for if anything is settled it is that such matter has no place in a bill of exceptions. It is part of the record proper, and if it appear only in such bill it is the same as if it did not appear at all. The rules to go by are:

(a) A demurrer is part of the record proper. It must appear there. It needs no bill of exceptions to preserve it. The ruling on it is likewise a part of the record proper, and no exceptions are necessary to have that ruling reviewed, provided error on the demurrer is not waived by pleading over. Spears v. Bond, 79 Mo., loc. cit. 469; City of Tarkio v. Clark, 186 Mo., loc. cit. 293, 294, 85 S. W. 329; Mallinckrodt Chem. Works v. Nemnich, 169 Mo., loc. cit. 395, 69 S. W. 355.

(b) It results, as a sequence, that a motion for a new trial is not necessary in order to review the ruling on a...

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84 practice notes
  • State ex rel. Crouser v. Mercer, No. 10750
    • United States
    • Supreme Court of West Virginia
    • May 15, 1956
    ...should not be included in a bill of exceptions. 3 Am.Jur., Appeal and Error, Section 580. See Diener v. Star-Chronicle Publishing Company, 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216. In Brown v. Cook, 77 W.Va. 356, 87 S.E. 454, L.R.A.1916D, 220, this Court held that, when a plea is [14......
  • State ex rel. Pulitzer Pub. Co. v. Coleman, No. 37053.
    • United States
    • Missouri Supreme Court
    • June 10, 1941
    ...Connecticut, 302 U.S. 319; Abrams v. United States, 250 U.S. 616; Whitney v. California, 274 U.S. 357; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Schenck v. United States, 249 U.S. 47; Reynolds v. United States, 98 U.S. 145; Ex parte McCormick, 129 Tex. Cr. 457, 88 S.W. (2d) 104; Nixon......
  • Kutcher v. Post Printing Co., 796
    • United States
    • United States State Supreme Court of Wyoming
    • April 12, 1915
    ...A. 566; Naulty v. Bulletin Co., 206 Pa. St. 128, 55 A. 862; Gordon v. Journal Co., 81 Vt. 297, 69 A. 742; Diener v. Star Co. (Mo. App.), 132 S.W. 1143; Macurda v. Journal Co. (Me.), 82 A. 438; McCauly v. State (Tex.), 141 S.W. 975; Weeks v. News Pub. Co. (Md.), 83 A. 162; Hoffland v. Journa......
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...152 S.W. (2d) 693; Niederberg v. Golluber, 162 S.W. (2d) 592; Fritschle v. Kettle River Co., 139 S.W. (2d) 948; Diener v. Star Pub. Co., 230 Mo. 613, 132 S.W. 1143; State ex rel. v. Sevier, 92 S.W. (2d) 102; Massey-Harris Har. Co. v. Fed. Res. Bk., 48 S.W. (2d) 158; Norris v. Letchworth, 15......
  • Request a trial to view additional results
84 cases
  • State ex rel. Crouser v. Mercer, No. 10750
    • United States
    • Supreme Court of West Virginia
    • May 15, 1956
    ...should not be included in a bill of exceptions. 3 Am.Jur., Appeal and Error, Section 580. See Diener v. Star-Chronicle Publishing Company, 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216. In Brown v. Cook, 77 W.Va. 356, 87 S.E. 454, L.R.A.1916D, 220, this Court held that, when a plea is [14......
  • State ex rel. Pulitzer Pub. Co. v. Coleman, No. 37053.
    • United States
    • Missouri Supreme Court
    • June 10, 1941
    ...Connecticut, 302 U.S. 319; Abrams v. United States, 250 U.S. 616; Whitney v. California, 274 U.S. 357; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Schenck v. United States, 249 U.S. 47; Reynolds v. United States, 98 U.S. 145; Ex parte McCormick, 129 Tex. Cr. 457, 88 S.W. (2d) 104; Nixon......
  • Kutcher v. Post Printing Co., 796
    • United States
    • United States State Supreme Court of Wyoming
    • April 12, 1915
    ...A. 566; Naulty v. Bulletin Co., 206 Pa. St. 128, 55 A. 862; Gordon v. Journal Co., 81 Vt. 297, 69 A. 742; Diener v. Star Co. (Mo. App.), 132 S.W. 1143; Macurda v. Journal Co. (Me.), 82 A. 438; McCauly v. State (Tex.), 141 S.W. 975; Weeks v. News Pub. Co. (Md.), 83 A. 162; Hoffland v. Journa......
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...152 S.W. (2d) 693; Niederberg v. Golluber, 162 S.W. (2d) 592; Fritschle v. Kettle River Co., 139 S.W. (2d) 948; Diener v. Star Pub. Co., 230 Mo. 613, 132 S.W. 1143; State ex rel. v. Sevier, 92 S.W. (2d) 102; Massey-Harris Har. Co. v. Fed. Res. Bk., 48 S.W. (2d) 158; Norris v. Letchworth, 15......
  • Request a trial to view additional results

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