Hagener v. Pulitzer Publishing Company
| Decision Date | 16 June 1912 |
| Citation | 158 S.W. 54,172 Mo.App. 436 |
| Parties | HENRY HAGENER, Respondent, v. PULITZER PUBLISHING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 172 Mo.App. 436 at 457.
Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.
AFFIRMED (conditionally).
Judgment affirmed.
Judson Green & Henry for appellant.
(1) The court erred in submitting this case to the jury, because the article complained of on its face is clearly not libelous and no innuendo can make it so. This is true because it was undisputed that the facts respecting the sheriff's absence from the inquest are correctly stated in the article; and this statement itself discloses that the negligent conduct of the sheriff referred to was not criminal under any statute of this State. To constitute a misdemeanor, or to subject an officer to removal from office under the direlict officials act, the neglect of duty must be willful, malicious and from corrupt or fraudulent motives. State v. Boyd, 196 Mo. 52; State v. Pringer, 57 Mo. 243; R. S. 1909, sec. 10204; Hall v. Adkins, 59 Mo. 148; Newell on Libel (2 Ed.) 568; Deiner v. Star, 232 Mo. 416; Klos v. Lahorie, 113 Iowa 164; Ayers v. Gridley, 15 Ill. 38; McGilvey v. Spring, 58 Ill.App. 276; Odgers on Libel (1911 Ed.), 203; Trimble v. Foster, 87 Mo. 50. (2) The article is not libelous and the petition states no cause of action. It cannot, therefore, be preverted or twisted by any innuendo into the signification contended for by plaintiff. The meaning of plain unambiguous language cannot be extended by an innuendo. Branch v. Knapp & Co., 222 Mo. 580; Deiner v. Star Chronicle, 232 Mo. 416; Christal v. Craig, 80 Mo. 373; Ukman v. Daily Record Co., 189 Mo. 378; Cook v. Pulitzer Pub. Co., S.Ct. 1911; Howarth v. Barlow, 115 A.D. 510; Smith v. United States, 175 F. 240. (3) It is always reversible error to assume the truth of controverted facts in instructing the jury. Siegrist v. Arnot, 10 Mo.App. 197; Mathews v. Railroad, 26 Mo.App. 75; Rice v. McFarland, 41 Mo.App. 489. (4) Instruction No. 4 for plaintiff contains reversible error in that it assumes that this article charged plaintiff with willful and intentional neglect of duty, when it is clear from the article itself that no one could have understood from reading it that the sheriff's conduct in going fishing was due to anything except the feeling that he was not needed at the coroner's inquest, and that like Simon Peter, he wished to go fishing. This instruction is also erroneous in that it omits the element of corrupt motive which is a necessary element under our statute to render one guilty of criminal neglect of official duty such as was necessary to render the article libelous, per se. State v. Boyd, 196 Mo. 52; State v. Pringer, 57 Mo. 243; R. S. 1909, sec. 10204. (5) Plaintiff's instruction No. 7 is erroneous in that it declares that good faith on the part of defendant in making said publication of this privileged article would not prevent plaintiff from recovering actual or compensatory damages. In both comment and privilege good faith is a bar to the recovery of either actual or compensatory damages and this instruction omits any such qualification and the omission is not cured by any other instruction given in the case for either plaintiff or defendant. Finley v. Steele, 159 Mo. 307; Tilles v. Pulitzer Pub. Co. (Court in Banc, Oct. Term, 1911); Cook v. Pulitzer Pub. Co. (Oct. Term, 1911). (6) Plaintiff's instruction No. 10 contains reversible error in that it contains vicious and unjustifiable comment on the evidence and singles out, directs attention to, and emphasizes certain evidence favorable to plaintiff. It is always reversible error for a trial court to comment on the evidence. Smith v. Sovereign Camp of Woodmen, 179 Mo. 119; McFadin v. Catron, 120 Mo. 252; Kaiser v. South St. Louis Ins. Co., 7 Mo.App. 579; Barr v. Kansas City, 105 Mo. 550.
Silver & Dumm for respondent.
(1) A newspaper is responsible for what it publishes, the same as an individual. Johnson v. Post-Dispatch Co., 65 Mo. 539; Arnold v. Star Saying Co., 76 Mo.App. 159; State v. Sheppard, 177 Mo. 244; Sheckell v. Jackson, 10 Cush. 25; Haynes v. Press Co., 169 Mass. 512; McDonald v. Woodruff, 2 Dillon Rep. 24; Upton v. Hume, 24 Oregon, 420; 2 Greenleaf on Evidence (16 Ed.), sec. 398. (2) The case, as stated in plaintiff's amended petition, was one for the jury. An instruction to the jury that an article is not libelous, is proper only in case the language is incapable of a construction injurious to plaintiff. Morris v. Sailer, 154 Mo.App. 312; Sanderson v. Caldwell, 45 N.Y. 401; Warner v. Southall, 4 Excheq. L. R. 284; Witcher v. Jones, 17 N.Y.S. 491, 492, 493.
Plaintiff was the sheriff of Cole county, and in his petition in this action charges defendant, who publishes a newspaper in the city of St. Louis, of large circulation, with libeling him. He recovered compensatory and exemplary damages in the circuit court.
The published matter set out as the libel is as follows:
"CHARGES SHERIFF WITH FISHING AT TIME OF INQUEST.
Cole County Official May Face Proceedings to Oust Him for Dereliction of Duty.
Jefferson City, Mo., July 2.--Jack Slate, prosecuting attorney of Cole county, said this morning that he may institute proceedings against Henry Hagener, sheriff of Cole county, under the derelict official act and seek to have that officer removed from office.
There is a rule in the law of slander that if one utters a charge against another, but accompanies it with such statement as to show it could not be true (as if one should charge "he is a murderer--he killed my dog"), then, it is said, the antidote has been sent along with the poison and the charge is not slander. Defendant is seeking to apply this rule to a case in libel and to go free of plaintiff's action on the ground that, while it did publish that plaintiff had violated his official duty and was going to be prosecuted for it and turned out of office, for not attending upon the coroner at the inquest; yet, since it was the law that attendance upon a coroner's inquest was not a part of a sheriff's duty, no libel could be made out of the publication.
Without deciding at this place that the rule would, or should, apply to a case of this character (on which subject, see Brown v. Knapp, 213 Mo. 655, 680-686, 112 S.W. 474; Perselly v. Bacon, 20 Mo. 330, 337; Prewitt v. Wilson, 128 Iowa 198, 202, 103 N.W. 365), we find that if it were conceded to apply, it would not acquit the defendant. For this publication not only charges a violation of duty in plaintiff's failing to attend on the coroner, but also contains the separate charge that he had violated his official duty in not doing what he could toward clearing up the mystery surrounding the death of the young woman. Now it is the official duty of a sheriff to employ all reasonable means and use all reasonable endeavor to discover whether a person, suddenly missing in the community and found dead, under circumstances indicating foul play, had been murdered, and to find and arrest the guilty parties. Therefore a violation of duty for which plaintiff was to be prosecuted and ousted from office, was charged, and it was libelous per se. For it is well-recognized law that to falsely charge a public officer with a willful breach of his official duty is libelous per se. The evidence in the case shows fully the efforts plaintiff made along the line of his official duty, from his first information of the young woman being missed. It was for the jury to say whether he had been falsely charged with a failure to perform such duty; and we find that phase of the case was submitted by defendant's instruction No. 7.
It is true that plaintiff, in instructions given at his instance submitted to the jury the charges of dereliction of duty in failing to attend upon the coroner. If this was error, it was condoned by defendant in asking similar instruction on its part.
We are not unmindful that a party will not be held to have condoned erroneous instructions for the other party, where he has first sought to have the erroneous matter excluded by instructions which have been refused. In this case that was not done. It is true defendant offered a demurrer to the evidence, but that was properly refused, since it carried with it an assertion that plaintiff could not recover for the other charge of which we have spoken. And the same may be said of refused instruction "B;" it directed a verdict without regard to the other charge. Indeed it appears that defendant did not indicate in any way, by pleading or otherwise, that it intended a defense on the ground that no libelous matter was charged.
But allowing that the published matter did not contain a charge of breach of official duty other than a failure to attend upon the coroner, we are of the opinion, that so confining the publication, it was yet a libel to charge him with a breach of official duty for which he was to be expelled from office, for failure to attend upon the coroner notwithstanding that in law it was not his duty and its nonperformance...
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