Heitzeberg v. Von Hoffmann Press

• Decision Date: 05 January 1937
• Docket Number: 34266
• Citation: 100 S.W.2d 307,340 Mo. 265
• Parties: Horace G. Heitzeberg v. Von Hoffmann Press, a Corporation, and George Von Hoffmann
• Court: Missouri Supreme Court

100 S.W.2d 307

340 Mo. 265

Horace G. Heitzeberg v. Von Hoffmann Press, a Corporation, and George Von Hoffmann

No. 34266

Supreme Court of Missouri

January 5, 1937

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge.

Reversed and remanded.

Suelthaus & Krueger for appellant.

(1) A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse. Sec 4366, R. S. 1929; Peoples U.S. Bank v. Goodwin, 149 S.W. 1148; 36 C. J. 1162, sec. 28; Orchard v. Globe Ptg Co., 144 S.W. 812, 240 Mo. 575; Conrad v. Allis-Chalmers Mfg. Co., 73 S.W.2d 438; Heller v. Pulitzer Pub. Co., 54 S.W. 457; Sotham v. Telegram Co., 144 S.W. 428; Becker v. Brinkop, 78 S.W.2d 538; Seested v. Post Ptg. Co., 31 S.W.2d 1045. (2) Words which, on the face of them, when falsely published of a party in connection with his trade or profession, must necessarily injure him with respect thereto, or which directly tend to the prejudice of such person in his trade or business, are actionable within themselves without proof of special damages. St. James Military Academy v. Gaiser, 28 S.W. 851; Dobbins v. Ry. Co., 138 S.W. 682, 157 Mo.App. 689; 36 C. J., p. 1180, sec. 69, p. 1192, sec. 99; Davis v. Bakewell, 255 F. 960, 167 C. C. A. 252; Daily v. De Young, 127 F. 491; Minter v. Bradstreet Co., 73 S.W. 668, 174 Mo. 444; Wagner v. Scott, 63 S.W. 1111; Victor Safe & Lock Co. v. Deright, 147 F. 211; Ferguson v. Chronicle Pub. Co., 72 Mo.App. 464. (3) In construing an alleged libelous publication, the court should take the article as a whole, and determine its meaning and effect from its entire contents, and from the occasion, surrounding circumstances and apparent object of the writer. Clark v. McBaine, 252 S.W. 428, 299 Mo. 77; Davis v. Mo. Pub. Assn., 19 S.W.2d 650; Conrad v. Allis-Chalmers Mfg. Co., 73 S.W.2d 438; Warren v. Pulitzer Pub. Co., 78 S.W.2d 404; State ex rel. Zorn v. Cox, 298 S.W. 837; Julian v. Kansas City Star, 107 S.W. 496. (4) In a libel action, defendant is liable for what is insinuated as well as for what is stated explicitly. Cook v. Globe Ptg. Co., 127 S.W. 332, 227 Mo. 471; Seested v. Post Ptg. Co., 31 S.W.2d 1045; Warren v. Pulitzer Pub. Co., 78 S.W.2d 412.

Cobbs & Logan for respondents.

(1) A demurrer properly lies to a petition for libel. St. James Military Academy v. Gaiser, 125 Mo. 528; Diener v. Star-Chronicle Pub. Co., 230 Mo. 621. Words used in matters alleged to be libelous are taken to be understood in their common meaning and the communication complained of construed in its entirety. Furlong v. German-American Press Assn., 189 S.W. 389; Orchard v. Globe Ptg. Co., 240 Mo. 591; Diener v. Star-Chronicle Pub. Co., 230 Mo. 625; Clark v. McBaine, 299 Mo. 77, 252 S.W. 432. (2) Appellant's amended petition fails to allege facts sufficient to constitute an action in libel against respondents. The gravamen of the appellant's complaint is that the communication complained of, libeled appellant in his alleged profession of "advertising and publishing and the management thereof." (a) Appellant could not have been libeled by the communication complained of in his professional capacity because it affirmatively appears from appellant's amended petition that at the time of its publication he was not so engaged. United States Bank v. Goodwin, 167 Mo.App. 217; Noeninger v. Vogt, 88 Mo. 591; Lally v. Cantwell, 30 Mo.App. 531; St. James Military Academy v. Gaiser, 125 Mo. 526; Minter v. Bradstreet Co., 174 Mo. 444; Townshend, Libel & Slander (4 Ed.), sec. 189; Newell, Slander & Libel (2 Ed.), sec. 9. (b) Appellant's petition is defective in that it does not allege the requirements of one engaged in his profession of "advertising and publishing, and the management thereof," and how the matter complained of defamed the appellant in such capacity. Legg v. Dunleavy, 80 Mo. 564; Honea v. King, 243 S.W. 77; Cook v. Pulitzer Pub. Co., 241 Mo. 346; Walsh v. Pulitzer Pub. Co., 250 Mo. 149; Orchard v. Globe Ptg. Co., 240 Mo. 590; Lee v. Feutterer Battery & Supply Co., 23 S.W.2d 63. (3) If the court be of the opinion that appellant's amended petition is not defective, in the respects herein above set forth, no action lies in that the matter complained of is a privileged communication. Privilege or non-privilege, is a matter of law to be determined by the court. Brown v. Globe Ptg. Co., 213 Mo. 648; Holmes v. Royal Fraternal Union, 222 Mo. 569; State ex rel. v. Cox, 298 S.W. 840; Newell, Slander & Libel (3 Ed.), sec. 499. The letter complained of is privileged; being a communication in regard to appellant's qualifications as an employee, published by one (respondents) having a duty so to do, to one (a prospective employer of appellant) who had an interest therein. White v. Nichols, 3 How. 266, 11 L.Ed. 600; Doane v. Grew, 220 Mass. 171, 107 N.E. 621; Ecuyer v. N. Y. Life Ins. Co., 172 P. 363; Hoff v. Pure Oil Co., 147 Minn. 195, 179 N.W. 892; Fresh v. Cutter, 20 A. 775; Solow v. General Motors Truck Co., 64 F.2d 107; Townshend, Slander & Libel (4 Ed.), sec. 209; Cooley Law of Torts, Throckmorton's Rev. Ed. 1930, sec. 178.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an action for libel. Defendants' joint demurrer to the first amended petition, on the ground that the "petition fails to state facts sufficient to constitute a cause of action against defendants," was sustained. Plaintiff refused to plead further and thereupon judgment was entered in favor of defendants. The petition alleged damages, actual and punitive, in an aggregate amount of $ 40,000 wherefore plaintiff's appeal from the judgment of the circuit court (of the City of St. Louis) comes here.

Omitting the caption and the allegations in reference to the amount of and prayer for damages, the first amended petition, to which the demurrer was sustained, is as follows:

"Plaintiff, by leave of Court, files this, his first amended petition, and states that the defendant Von Hoffmann Press is a corporation duly organized and existing by virtue of the law and maintains its principal office in the City of St. Louis, Missouri. That the defendant George Von Hoffmann has been associated with the Von Hoffmann Press since the year of 1930 and is now and was on January 7, 1932, the vice-president of said corporation.

"For a cause of action, plaintiff states that the Merchandising Publishing Corporation was a corporation formed in 1926 and is still in good standing as a corporation; that from its incorporation until on or about January 15, 1931, plaintiff was secretary-treasurer and manager of said Merchandising Publishing Corporation. That on or about January 15, 1931, plaintiff's connection and employment with said Merchandising Publishing Corporation was severed, and since that said date he has obtained no permanent employment.

"Plaintiff further states that on the 7th day of January, 1932, defendants, maliciously contriving and intending to injure plaintiff in his good name, fame and reputation, did falsely, maliciously and wrongfully write a certain letter to The City Ice & Fuel Company, in which said letter defendants stated of and concerning the plaintiff the following false and libelous matter, to wit:

"'The City Ice & Fuel Company,

"'Polar Wave Building,

"'St. Louis, Missouri.

"'Attention: Mr. T. J. Beck.

"'Dear Sir:

"'Mr. Horace G. Heitzeberg came in 1922 to our Mr. Williams at that time President of the Von Hoffmann Press with a proposition of starting a trade paper. Mr. Williams decided to gamble with Mr. Heitzeberg on this proposition and so incorporated the Company of which Mr. Heitzeberg was Secretary and Manager. During the time he was in charge of this company, it showed very little or no profit due to the loose financial policy of Mr. Heitzeberg.

"'However, his ability as the editor of the publication has given it much prestige and with our watching his financial policy more closely the last six months he was with us, we were able to put the publication on a paying basis.

"'We found Mr. Heitzeberg honest and sincere in everything that he did altho we found that he jumped to conclusions and needs watching and guiding.

"'At no time was there any doubt in our minds as to his ability but we found that he was lax in the qualifications of a manager.

"'If there is any other information that I can give you, I would be glad to talk to you personally.

"'Yours very truly,

"'Von Hoffmann Press,

"'George Von Hoffmann,

"'Vice-President.'

"Plaintiff futher states that the foregoing letter was not written in response to any inquiry to the said Von Hoffmann Press, a corporation, or said George Von Hoffmann, but that said defendants took it upon themselves to write said letter with the specific intention of injuring and damaging plaintiff's good name and reputation.

"Plaintiff further states that the statements contained in the foregoing letter charging plaintiff with gambling, with a loose financial policy, with the necessity of careful watching, with jumping at conclusions and needing watching and guiding and with being lax in the qualifications of a manager as set forth herein are each false, malicious, defamatory and libelous, and have greatly humiliated plaintiff and the writing and publication thereof has greatly prejudiced and injured him in his good name, fame and reputation and has greatly injured and damaged him in his profession of advertising and publishing and the management thereof."

"Words written or spoken" of a person in relation to his trade or business may be actionable though "they might...