Heller v. Pulitzer Pub. Co.

Citation54 S.W. 457,153 Mo. 205
PartiesHELLER v. PULITZER PUB. CO.
Decision Date14 November 1899
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Martin Heller against the Pulitzer Publishing Company. Judgment for plaintiff. Defendant appeals. Reversed.

Plaintiff in this action sues the defendant for publishing in its paper, the St. Louis Post-Dispatch, on the 11th of November, 1893, the following: "He has Skipped Out. Martin Heller, a Contractor for Government Work, an Embezzler. Martin Heller, a contractor and builder residing at 1716 Geyer avenue, has disappeared, taking with him several thousand dollars belonging to the government and his subcontractors. Heller is a well-known stone contractor and builder, and his work about town has been so satisfactorily done that he was well recommended to the officers at Jefferson Barracks, the United States army post, when there were contracts to be let there. At present the government is doing a great deal of building at Jefferson Barracks. New quarters — large and handsome structures — are being built for the officers and men. Heller secured the contract for the stonework on all of these. The work was to have been done in sections. His work on the first buildings erected amounted to over $6,000. He subcontracted for John J. McMahon, Gillick Bros., Wm. and Frank Ruprecht, Johannes Lime Company, and several others. It is stated that McMahon advanced him $1,500 to pay his (Heller's) employés, and that he did not use the money for that purpose. Letters were received from Heller by Messrs. McMahon, Gillick, Ruprecht, and Johannes, stating that when they received his letters he would be on his way to Australia, and that he had jumped his bond and his contract with the government. He owes $500 to the Johannes Lime Company, and several hundred dollars to the Ruprechts. Gillick Bros. are in a measure protected, as they required him to furnish bond, and they propose to hold his bondsmen. In the meantime Heller's employés are clamoring for their wages, and it has required considerable tact on the part of the army officers in charge of the work to keep it under way. The post is in actual need of new quarters, and, should the contractors not complete the work on time, they will be held to the forfeit." Also, for publishing substantially the same thing in its paper on the 12th of November, 1893. The answer admitted the publications, denied the other allegations of the petition, and affirmatively pleaded that plaintiff had a subcontract for work on the government buildings at Jefferson Barracks, which work was not completed, and that he left St. Louis, owing material men large sums of money for materials used on said work, and notified them that he was going to Australia, when in fact he had no such intention, and further pleaded that the matter complained of was copied from the Carondelet Progress, a reputable newspaper published in the vicinity of the barracks, and was published by defendant as an item of current news, believing it to be true, and without any malice towards plaintiff. Defendant also pleaded that at the plaintiff's request it afterwards published, and gave equal circulation to, the following retraction: "Heller has Returned. His Friends Say His Accounts were Found to be All Right. In two articles published in the Post-Dispatch of November 11 and 12, 1893, it was made to appear that Martin Heller, a contractor and builder at the time engaged in contract work at Jefferson Barracks, had left the city, with his accounts with the principal contractors and with the government unsettled, and that he was indebted to both. It is understood Mr. Heller returned to the city about a month ago, and he states that he left the city for the purpose of obtaining work, and that his accounts, when he left, were in proper shape, and correct throughout. It is said by Mr. Heller's friends that the contracts on which he was engaged at Jefferson Barracks were complied with by him, and that the work was done in accordance with the contracts, and that there was no ground for the charges made by others, that there was any irregularity in connection with his work under those contracts, as stated in the Post-Dispatch at that time. It was stated in the Post-Dispatch at the time that Heller was a well-known contractor and builder, and his work in the city has been very satisfactorily done." The reply averred that his contracts were nearly completed when he left, and his willingness and offer to complete them on his return, and the refusal of the original contractor to permit him to do so; denied that he had gone off with $1,500 belonging to any one else, but averred that said sum was received from the original contractor, and paid to the laborers and mechanics; and further averred that he left because of trouble with his employés about the amount of wages he should pay them, and because they threatened to kill and boycott him. The evidence showed that the charges were partly true, and partly not; that he did not go away with money belonging to any one else, but because of trouble with his employés, but that he did go away owing large sums to the material men; and that suits were pending against him therefor at the time this case was tried in the circuit court. Among others, the defendant asked, and the court refused to give, the following instruction: "The jurors are instructed that the defendant, by the law, is free to publish whatever it wishes to on any subject, but is responsible for all abuse of that liberty; that the court in this case gives such instructions to the jury as it deems proper, but the jury may disregard all such instructions, as they are the judges of both the law and the facts." But instead the court gave the following instruction of its own motion: "The jurors are instructed that the defendant, by the law, is free to publish whatever it wishes to on any subject, but is responsible for all abuse of that liberty; that the court in this case gives such instructions to the jury as it deems proper, but the jurors are not only the sole judges of the weight to be given to the testimony and the facts, but, under the constitution and law of Missouri, you are yourselves the sole judges of the law of libel, — as to whether the alleged libelous publications were in fact libelous." The court, of its own motion, also gave the following instruction: "The court instructs the jury as follows, viz.: Under the evidence adduced, your verdict must be for the plaintiff on both counts of the petition. The only questions left for your decision, therefore, are those relating to the amount of damages to be assessed. Damages are of three kinds, viz. nominal, compensatory, and punitive," — following this with a definition of each kind, as to which part of the instruction no point is here made. During the argument, defendant's counsel tried to read to the jury an extract from Townshend on Libel and Slander, in connection with one of the points he desired to make. On objection, the court refused to permit it to be done. Plaintiff secured a verdict, and defendant appealed.

F. N. Judson and J. Clarence Taussig, for appellant. J. R. Myers, for respondent.

MARSHALL, J. (after stating the facts).

Two errors are assigned by defendant: (1) The giving of the mandatory instruction to find for plaintiff; and (2) refusing to allow counsel to read law books to the jury, — and of these in their order:

1. The first error assigned is the giving of a mandatory instruction to the jury to find for the plaintiff, and leaving only to the jury the question of the amount of the damages. Defendant insists that this was error: (1) Because section 14, art. 2, of the bill of rights of our constitution, provides "that no law shall be...

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    ......In Merrill v. Post Pub. Co., 197 Mass. 193, 83 N. E. 423, it is said: "A defendant is liable for what is insinuated as ...In Heller v. Pulitzer Publishing Company, 153 Mo. 213. 54 S. W. 459, this court quoted from the opinion of ......
  • Kleinschmidt v. Bell, 38849.
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