Grisham v. Western Union Telegraph Co.

• Decision Date: 19 December 1911
• Parties: JOSEPH GRISHAM and NETTIE M. GRISHAM, Appellants, v. WESTERN UNION TELEGRAPH COMPANY, CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, and JOHN M. BEER
• Court: Missouri Supreme Court

142 S.W. 271

238 Mo. 480

JOSEPH GRISHAM and NETTIE M. GRISHAM, Appellants, v. WESTERN UNION TELEGRAPH COMPANY, CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, and JOHN M. BEER

Supreme Court of Missouri, Second Division

December 19, 1911

Appeal from Schuyler Circuit Court. -- Hon. Nat M. Shelton, Judge.

Affirmed.

Fogle & Fogle, W. M. Saxbury and Rolston & Rolston for appellants.

(1) The petition states a cause of action. Ukman v. Daily Record Co., 189 Mo. 378; 13 Ency. Pl. & Pr. 40; Atwinger v Fellner, 46 Mo. 276; Kenworth v. Journal Co., 117 Mo.App. 327. (2) As respects a publication by writing a libel, not only the publisher, but all who in anywise aid or are concerned in the production of the writing, are liable as publishers. If one composes and dictates, a second writes and a third publishes, each and all are liable as publishers. Buckley v. Knapp, 48 Mo. 152; Arnold v. Savings Co., 76 Mo.App. 159. (3) A corporation is liable in damages for the publication of a libel, as it is for its other torts. Quigley v. Railroad, 21 How. (U.S.) 202; 25 Cyc. 428, n. 98; 10 Cyc. 1215, sec. 4. (4) Corporation may be held for libel. Bishop on Torts, sec. 728; Johnson v. Dispatch Co., 65 Mo. 539; 2 Wilgus Corp., p. 1258. (5) A railroad corporation may be liable in damages for a libel published by its agents in the course of their employment. 10 Cyc. 1215; Railroad v. Quigley, 21 How. (U.S.) 202; Gas, etc. Co. v. Lansden, 173 U.S. 543. (6) A master is liable for the publication of defamatory matter by his agent in the line of his duty though the principal did not authorize it. Newell on S. & L., 376; Fogg v. Barton L. & R. Co., 20 N.E. 109; Garrepzen v. Dunckel, 50 Mo. 104; McCord v. Tel. Co., 39 N.W. 315. (7) A telegraph company is held liable for its agent's sending a libelous telegram. Cooley on Torts, p. 139; Peterson v. Tel. Co., 77 N.W. 985. (8) A railroad company falsely published through their electric telegraph that a bank had stopped payment, held liable. Whitfield v. Railroad, 37 L. J., Q. B.; 2 Addison on Torts, sec. 1140. (9) To transmit over its lines to an addressee, a message libelous on its face, is a publication of a libel for which the company can be held responsible, since in such a case not only the addressee, but also all of the company's agents through whose hands the dispatch must pass, are made acquainted with its contents. 25 Am. and Eng. Ency. (1 Ed.), 281. Libelous letter sent through the mail to plaintiff is libelous per se. Houston v. Wooley, 37 Mo.App. 15; R. S. 1899, secs. 2259-61. All libels are actionable per se. Kenworth v. Journal Co., 117 Mo.App. 327. (10) A telegraph company is liable for the acts of its agents within the scope of their authority. So where a libelous message is maliciously transmitted by an agent of the company, within the scope of his employment, punitive damages therefor may be recovered against the company. 1 Joyce on Dam., sec. 409. (11) A railroad operating a line of telegraph may be liable in transmitting over its line to different stations, libelous matter concerning a person. 10 Cyc. 1215; Whitfield v. Railroad, E. B. & E. 115. (12) For acts done by the agents of a corporation, either in contractu or in delicto in the course of its business and of their employment, the corporation is responsible as an individual is responsible under similar circumstances. Cooley's Torts, 227; Johnson v. Dispatch Co., 2 Mo.App. 565; Lathrop v. Adams, 133 Mass. 471; Fogg v. Railroad, 20 N. R. 109. (13) An agent has a right to refuse to send a telegram that is obscene, slanderous, blasphemous, profane or the like. Telegraph Co. v. Lillard, 110 S.W. 1035. (14) Notice to the agent of matter in his line of duty is notice to the principal. Cox v. Pearce, 20 N.E. 566; Larsen v. Railroad, 110 Mo. 234; Barker v. Railroad, 126 Mo. 143. (15) The answer of the defendant Western Union Telegraph Company, and the defendant Beer, and the first answer of the defendant railroad, amounts to no answer at all and all of the allegations in the plaintiff's petition were virtually admitted. Dezell v. Fidelity and Casualty Co., 176 Mo. 279. (16) When a proffered message is not manifestly a libel or susceptible of a libelous meaning on its face, and is forwarded in good faith by the operator, the defendant cannot be held to have maliciously published a libel, but where the message is susceptible of a libelous meaning and is not signed by any responsible person, and there is no reason to believe it is a cipher message, and it is forwarded under such circumstances as to warrant the jury in finding that the operator in sending the message, was negligent or wanting in good faith in the premises, the company may be held to have maliciously published a libel. A publication under such circumstances is not privileged. Peterson v. Telegraph Co., 65 Minn. 18. (17) If Beer knew that the telegram was libelous, or if he knew of the circumstances and the parties to whom the word "board" referred, or if he had reasonable grounds, as a man of ordinary intelligence, to know the facts and circumstances and still sent the telegram, he and the other defendants are liable. Nye v. Tele. Co., 104 F. 930. (18) Evidence which shows that the defendant could have ascertained from his books that the statements published are false, justifies an instruction for punitive damages on the grounds of gross carelessness or recklessness. Lanius v. Druggist Pub. Co., 20 Mo.App. 12. (19) If the publication is false and plaintiff has suffered actual damages, he is entitled to recover such damages, no matter how innocently, or with what purpose, intent or motive, defendant acted. Farley v. Pub. Co., 113 Mo.App. 27; Jones v. Murray, 167 Mo. 25; Ukman v. Daily Record Co., 189 Mo. 378. (20) Intent or knowledge of the libelous matter is not necessary to make one liable. Curtis v. Mussey, 6 Gray, 261; Farley v. Publishing Co., 113 Mo.App. 216; Jones v. Murry, 167 Mo. 25. (21) A defendant is liable for what is insinuated as well as for what is stated explicitly. Merrill v. Post Pub. Co., 83 N.E. 419. (22) Plaintiff may show by extrinsic evidence that the words apply to him, although not named. 25 Cyc. 493; Kenworth v. Journal Co., 117 Mo.App. 337; Newell on Libel & Slander (2 Ed.), 250; Caruth v. Richeson, 96 Mo. 186. (23) In an action for libel on demurrer to the petition where the language of the alleged libel is doubtful, the court will ascertain if there is anything in the language which by reasonable intendment is actionable, and in determining the meaning of the words will consider extrinsic facts and circumstances with which they are connected. Mfg. Co. v. Western Fruit Grower, 126 Mo.App. 139. (24) And where the person is ambiguously described extrinsic evidence may be admitted to establish the identity. Mix v. Woodward, 12 Conn. 262; Van Vetchten v. Hopkins, 5 Johns. 211; 25 Cyc. 503. (25) A person who reads a libelous publication may testify as to whom he understood it to refer. Enquirer Co. v. Johnston, 72 F. 443. (26) Though plaintiff's name was not used in the alleged libelous article, still if readers understood it to refer to plaintiff and the sense in which the words were used, then this is admissible testimony. Ball v. Eben Am. Co., 86 N.E. 1097. (27) Plaintiff may call in friends or those acquainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. Kenworth v. Journal Co., 117 Mo.App. 336; 25 Cyc. 362. (28) When the words have a harmless or an injurious meaning it is a question of fact for the jury to say which meaning was intended. Newell on S. & L. (2 Ed.), 769; Birch v. Benton, 26 Mo. 153; McGinnis v. Knapp & Co., 109 Mo. 131; Dollarer v. Bashey, 16 Pa. St. 204. (29) If the words are capable of two meanings, one harmless and the other defamatory, then it is a question for the jury. Dunnell v. Fish, 11 Met. 52; Downs v. Hawley, 112 Mass. 237; Twone v. Monroe, 136 Mass. 464; Hoare v. Silverlock, 12 Q. B. 624; Fray v. Fray, 17 C. B. N. S. 603. (30) If the language is ambiguous, the construction is in what sense hearers understood it. Caruth v. Richeson, 96 Mo. 186. (31) The jury now decide upon the facts, what the words do mean. Fallenstein v. Booth, 13 Mo. 428; Stuber v. Wennel, 19 Mo. 513; Hudson v. Garner, 22 Mo. 423; Speaker v. McKensie, 26 Mo. 255; Birch v. Benton, 26 Mo. 153; Bishop, Non-Contract Law, sec. 277. (32) In determining the meaning of doubtful words the jury may take into consideration all the surrounding facts. Reddell v. Thayer, 127 Mass. 487; Kenworth v. Journal Co., 117 Mo.App. 327; Julian v. Star Co., 209 Mo. 35. (33) The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning may be inferred and then it is for the jury. Newell on S. & L., 769; Carter v. Andrews, 16 Pick. 1; Kenworthy v. Journal Co., 117 Mo.App. 327; Julian v. Star Co., 209 Mo. 35.

Charles E. Yeater for respondents.

(1) If no case of actionable libel has been made on the plaintiff's evidence, the court may give a peremptory instruction for a verdict for defendant. Heller v Pulitzer Pub. Co., 153 Mo. 213; Ukman v. Daily Record Co., 189 Mo. 390; Branch v. Knapp & Co., 222 Mo. 596. (2) Where the facts are undisputed the question of privilege is a question of law for the judge. Callahan v. Ingram, 122 Mo. 365; Sullivan v. Commission Co., 152 Mo. 283; Holmes v. Royal Fraternal Union, 222 Mo. 569. (3) To a communication belonging to a class privileged in law, made in good faith, the law does not imply malice, as in the ordinary case of libel, and actual malice must be proven before there can be a recovery, and in the absence of substantial evidence of such malice a nonsuit should be granted. Finley v. Steele, 159 Mo. 306; Holmes v. Royal Fraternal Union, 222 Mo. 568. (4) The...