Diener v. Star-Chronicle Pub. Co.

• Decision Date: 09 February 1911
• Parties: DIENER v. STAR-CHRONICLE PUB. CO.
• Court: Missouri Supreme Court

135 S.W. 6

232 Mo. 416

DIENER v. STAR-CHRONICLE PUB. CO.

Supreme Court of Missouri.

February 9, 1911.

1. EXCEPTIONS, BILL OF (§ 38)—FILING— TIME.

Generally, unless leave be timely granted to file a bill of exceptions, exceptions at each term must be preserved by a bill at that term, or they die with the term.

2. APPEAL AND ERROR (§ 518)—BILL OF EXCEPTIONS —NECESSITY—DEMURRER.

A bill of exceptions is not necessary to preserve a demurrer.

3. APPEAL AND ERROR (§ 520)—BILL OF EXCEPTIONS —NECESSITY—MOTIONS.

Generally, rulings on motions can be preserved only by bill of exceptions.

4. PLEADING (§ 356)—STRIKING AMENDED PETITION—EFFECT.

Striking an amended petition, as being substantially the same as the original petition to which demurrer was sustained, was equivalent to sustaining a demurrer thereto.

5. LIBEL AND SLANDER (§ 88)—PUNITIVE DAMAGES—PLEADING—SUFFICIENCY.

Plaintiff in libel is not entitled to punitive damages, where his petition does not differentiate between actual and punitive damages.

6. LIBEL AND SLANDER (§ 7)—ACTIONABLE STATEMENTS—ACCUSATION OF HOMICIDE.

The statement that one killed another, or is a "killer," is not libelous per se, as charging criminal homicide, unless the context of the publication shows such charge.

7. LIBEL AND SLANDER (§ 7)—CHARGING HOMICIDE.

A newspaper article stated that plaintiff, a health commissioner's chauffeur, was released from responsibility for death of a child run over by his automobile, because the coroner had previously ordered the police to release him, and because to hold him responsible would be to hold the police department, the health commissioner, and the coroner responsible for releasing one who wantonly took the life of an innocent child in direct violation of law, and because it would subject plaintiff to confinement in the penitentiary for life; that investigation of the high-handed handling of the case revealed that the police released plaintiff from all responsibility on authority of the coroner, that the coroner acted on information from the health commissioner, and that the health commissioner got his information from plaintiff, "who rushed home to tell his boss that he had run over a child, but was not to blame," and that thus, on the unsupported statement of plaintiff, "who did the killing, the killer" was released. Held, that the article is not libelous as to plaintiff, as charging commission of a criminal homicide, being intended as a denunciation of the officials rather than him.

8. LIBEL AND SLANDER (§ 4)—MALICE—REQUISITES.

Malice, supporting suit for libel, must flow from defendant to plaintiff, and not to another.

9. LIBEL AND SLANDER (§ 97)—PLEADING— DEMURRER.

A demurrer to a petition for libel reaches a construction which makes a statement of fact out of hypotheses in the article.

10. LIBEL AND SLANDER (§ 16)—EXPOSURE TO CONTEMPT, ETC.—REQUISITES OF OFFENSE.

Under Rev. St. 1899, § 2259 (Ann. St. 1906, p. 1425), making malicious defamation tending to expose one to public contempt, etc., libel, defamation is an essential element.

11. LIBEL AND SLANDER (§ 1)—"DEFAMATION."

"Defamation" comprehends injury of another's reputation by calumny; aspersion by lying.

12. LIBEL AND SLANDER (§ 1)—"DEFAME."

To "defame" is to speak evil of one maliciously; to dishonor; to render infamous.

13. LIBEL AND SLANDER (§ 123)—QUESTION OF LAW.

Whether words of a publication can reasonably be interpreted as defamation is a question of law.

Woodson and Kennish, JJ., dissenting.

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 and Richard A. Jones, for respondent.

LAMM, J.

Tort for libel. This is a companion case to one between the same parties (No. 14,374; not yet officially reported) 132 S. W. 1143, involving another libel. Plaintiff's original petition was held bad on general demurrer. He pleaded over. At a subsequent term he voluntarily withdrew his first amended petition and filed a second, reading (Nota bene, the part in italics and brackets being in addition to the averments of the original petition; otherwise they were the same):

"Now comes Joseph Diener, plaintiff in the above-entitled cause, and files this his second amended petition, and for cause of action states that the defendant, Star-Chronicle Publishing Company, was and is 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 5th day of May, 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:

"`The Coroner's investigation into the death of little Gertrude Copeland, who was Torn to Pieces by Health Comr. Bond's automobile, held the dead child guilty of contributory negligence, and in this way released the chauffeur from legal responsibility, as far as a coroner's quest can.

"`What chance on earth was there that it should have done anything else?

"`Coroner Baron had already decided that Chauffeur Diener was in no way responsible for the killing by ordering the police to turn him out free on the night of the arrest, without a charge or a bond to hold him.

"`The coroner took this action on the pledge of the Health Commissioner that he was sure the chauffeur was in no way to blame for the awful death.

"`The police acted on the written order of the Coroner.

"`To hold Chauffeur Diener directly responsible for the killing now would be to hold the police department, the Health Commissioner, and the Coroner responsible for the atrocious act of setting at liberty a man who had wantonly taken the life of an innocent child, in direct violation of the law.

"`Further, such a finding would make the chauffeur responsible for a criminal offense for which he might be sent to the penitentiary for life, and from the consequences of which he could easily have fled while he was at liberty.

"`If the Coroner had brought about such a finish to the investigation, he would have been a rare man, indeed.

"`Investigation of the high-handed handling of the case reveals that on the night of the tragedy the police released the chauffeur from all responsibility on the authority of Coroner Baron; that the Coroner acted on the information of Health Commissioner Bond, and that Health Commissioner Bond got all his information entirely from the chauffeur, who rushed home to tell his boss that he had run over a child, but was not to blame.

"`Thus, on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.

"`To save the faces of the officials involved, the child just had to be guilty of contributory negligence.

"`The chauffeur told the Health Commissioner, and the Health Commissioner told the Coroner, and the Coroner told the police— but the pretty little innocent child told nobody, because she died almost instantly.' [Thereby meaning to charge this plaintiff with having committed a crime involving moral turpitude, and with having willfully and wantonly taken the life of a human being; 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 and the person to whom the defendant referred in said publication.]

"Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum of twenty-five thousand dollars ($25,000). Wherefore plaintiff prays judgment in the sum of twenty-five thousand dollars ($25,000) and his costs."

Defendant attacked the amended petition with the following motion: "Comes defendant, Star-Chronicle Publishing Company, and moves the court that the second amended petition of the plaintiff in the above-entitled cause be stricken from the files and for naught held for the following reasons: The matters and things stated and charged in said pleading are not sufficient to constitute a cause of action against the defendant. The subject-matter contained and charged therein is in substance the same as that contained in the original petition, to which pleading the court heretofore sustained a demurrer, for the reason that such matter was not sufficient to constitute a cause of action against the defendant; and by his so-called second amended petition the plaintiff simply seeks a review of a decision of this court, which has long since become final."

On the hearing of that motion, the court made the following order: "The court, having duly considered the motion to strike the second amended petition from the files heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained, because this court has previously sustained a demurrer to the original petition stating the same cause of action."

On a day following that entry, judgment went for defendant, narrating, inter alia, that a demurrer to the original petition was sustained, that later a motion to strike the second amended petition from the files was sustained, because the court had previously sustained a demurrer to the original petition stating the same cause of action, and that plaintiff thereupon declines to plead further. Wherefore final judgment is entered that plaintiff take nothing and defendant go hence without day, etc.

In due time plaintiff filed his motion for a new trial, saved an exception to overruling the same, and by a bill of exceptions undertook to...