Diener v. Star-Chronicle Publishing Company

• Decision Date: 09 February 1911
• Parties: JOSEPH DIENER, Appellant, v. STAR-CHRONICLE PUBLISHING COMPANY
• Court: Missouri Supreme Court

135 S.W. 6

232 Mo. 416

JOSEPH DIENER, Appellant, v. STAR-CHRONICLE PUBLISHING COMPANY

Supreme Court of Missouri

February 9, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Chas. Claflin Allen, Judge.

Affirmed.

Robert & Robert for appellant.

(1) The circuit court had no authority to strike the second amended petition from the files. But one petition had been adjudged insufficient upon demurrer. R. S. 1899, secs. 596, 601 621-623; Comstock v. Davis, 51 Mo. 569; Spurlock v. Railroad, 93 Mo. 13; Barton v. Martin, 54 Mo.App. 134; Antonelli v. Basile, 93 Mo.App. 141. (2) Where words complained of as libelous are susceptible of two meanings, one harmless and the other defamatory, the jury must determine in which sense the readers may have understood them. Constitution of Mo., art. 2, sec. 14; Julian v Star Co., 209 Mo. 35; McGinnis v. Knapp, 109 Mo. 131; Caruth v. Richardson, 96 Mo. 190; Johnson v. Dispatch Co., 2 Mo.App. 569; Feder v Herrick, 43 N. J. L. 24; Publishing Co. v. Jones, 83 Tex. 302; Odgers, Libel and Slander, secs. 23, 306. (3) Both petitions stated a cause of action for libel per se, as the publication charged the plaintiff with the commission of a crime and held him up to public scorn. R. S. 1899, secs. 1815, 1816, 1817, 1835, 2259, 2375; Meriwether v. Knapp, 224 Mo. 617; Julian v. Star Co., 209 Mo. 35; Minteer v. Bradstreet, 174 Mo. 485; Noeninger v. Vogt, 88 Mo. 589; Ferguson v. Pub. Co., 72 Mo.App. 462; Hermann v. Bradstreet, 19 Mo.App. 229; Pub. Co. v. Smith, 149 F. 704; O'Shaughnessy v. Recorder Co., 58 F. 653; Holt v. State, 89 Ga. 316; Poole v. State, 87 Ga. 526; Clark, Crim. Law (2 Ed.), 186; 1 Whart., Crim. Law, 329. (4) The charge that the plaintiff "had wantonly taken the life of an innocent child, in direct violation of the law," is libelous per se. The use of the word "wantonly" imputes a crime to the plaintiff. Trauerman v. Lippincott, 35 Mo.App. 478; State v. Schoenwald, 37 Mo. 147; State v. Weeden, 133 Mo. 70; N. C. v. Vanderpool, 35 F. 282; State v. Massey, 97 N.C. 465; Branch v. State, 41 Tex. 622. (5) The words, "in direct violation of the law," certainly charge a crime. No charge could be more direct. Harper v. Ins. Co., 18 Mo. 109, 19 Mo. 506; Overton v. Ins. Co., 39 Mo. 122; Wolff v. Ins. Co., 5 Mo.App. 236; Brown v. K. P., 83 Mo.App. 633; Murray v. Ins. Co., 96 N.Y. 614; People v. Fox, 38 N.Y.S. 635; Cluff v. Ins. Co., 95 Mass. 308; Bloom v. Ins. Co., 97 Ind. 478. (6) (a) The words "killing" and "killer" imputed to the plaintiff the crime of murder and are actionable per se. Jones v. Murray, 167 Mo. 25; Noeninger v. Vogt, 88 Mo. 589; Button v. Heyward, 8 Mod. 24; Cooper v. Smith, 1 Rolle's Abr. 77; Doan v. Kelley, 121 Ind. 413; O'Connor v. O'Connor, 24 Ind. 218; Thomas v. Blasdel, 147 Mass. 438; McLaughlin v. Cowley, 131 Mass. 70; McLaughlin v. Cowley, 127 Mass. 316; Publishing Co. v. Jones, 83 Tex. 302; Curley v. Feeney, 67 N. J. L. 70; Carroll v. White, 33 Barb. 615; Hays v. Hays, 1 Humph. 402; Cady v. Times Co., 58 Minn. 329; Palmer v. Smith, 21 Minn. 419; "Killer," Webster's Dictionary, and Century Dictionary. (b) The defendant itself put this construction on the words by suggesting in the same article that the plaintiff's act might make him responsible for a criminal offense for which he might be sent to the penitentiary for life, and that could be only for murder, or manslaughter in the first degree. (7) It was only necessary to allege in the petition, "generally," that the words were "published or spoken concerning the plaintiff." R. S. 1899, sec. 635; Julian v. Star Co., 209 Mo. 35; Callahan v. Ingram, 122 Mo. 366; Caruth v. Richeson, 96 Mo. 186; Curry v. Collins, 37 Mo. 324; Hudson v. Garner, 22 Mo. 423; Steiber v. Wensel, 19 Mo. 513; Boyce v. Aubuchon, 34 Mo.App. 315; State v. Pulitzer, 12 Mo.App. 9; Doan v. Kelley, 121 Ind. 413; Curley v. Feeney, 62 N. J. L. 70.

Nathan Frank and Richard A. Jones for respondent.

The article declared on is not libelous. It does not make a defamatory charge against appellant, does not attribute to him any delinquency, legal or moral, and the trial court rightfully held that as to him no statement was contained in the matter complained of which constitutes a cause of action. Spurlock v. Investment Co., 59 Mo.App. 225; Baldwin v. Walser, 41 Mo.App. 243; Legg v. Dunleavy, 80 Mo. 558; Branch v. Knapp, 222 Mo. 580; Blackwell v. Smith, 8 Mo.App. 43; Cristal v. Craig, 80 Mo. 367; Salvatille v. Ghio, 9 Mo.App. 155; Wood v. Hilbish, 23 Mo.App. 389; Klos v. Zahorik, 113 Ia. 61; Barr v. Pub. Co., 27 R. I. 101; Curry v. Collins, 37 Mo. 324; Brown v. Tribune, 77 N.Y.S. 461; Foot v. Pitt, 82 N.Y.S. 464; Ramscar v. Gerry, 1 N.Y.S. 635; Kilgore v. Evening Star, 96 Md. 16; Hollenbeck v. Hall, 103 Ia. 214; Homer v. Engelhardt, 117 Mass. 539; Hanaw v. Jackson Patriot Co., 98 Mich. 506; Edwards v. Chandler, 14 Mich. 471; Bearce v. Bass, 88 Me. 521; Dunneback v. Tribune Ptg. Co., 108 Mich. 75; Brown v. Boynton, 122 Mich. 251.

LAMM, J. Graves, Ferriss and Brown, JJ., concur. Woodson and Kennish, JJ., dissent, Woodson, J., in an opinion filed; Valliant, C. J., absent.

OPINION

In Banc.

LAMM J.

Tort for libel. This is a companion case to one between the same parties, officially reported in 230 Missouri Report at page 613, involving another libel. Plaintiff's original petition was held bad on general demurrer. He plead 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 inquest 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 his 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 consequence 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 the Health Commissioner 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, 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.

"Wherefore, plaintiff prays judgment in the sum of twenty-five thousand dollars 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 pleadings...