Henry v. Halliburton

• Decision Date: 29 May 1985
• Docket Number: No. 66335,66335
• Citation: 690 S.W.2d 775
• Parties: , 11 Media L. Rep. 2185 Roy M. HENRY, et al., Appellants, v. William K. HALLIBURTON, Respondent.
• Court: Missouri Supreme Court

Page 775

690 S.W.2d 775

53 USLW 2617, 11 Media L. Rep. 2185

Roy M. HENRY, et al., Appellants, v. William K. HALLIBURTON, Respondent.

No. 66335.

Supreme Court of Missouri En Banc.

May 29, 1985.

P. Terence Crebs, Joseph J. Simeone, Richard J. Pautler, St. Louis, for appellants.

D. Raymond Raney, John J. Horgan, St. Louis, for respondent.

WELLIVER, Judge.

This case involves a defamation action brought by appellants, Roy M. Henry and St. Louis Financial Planners, Inc., against respondent William K. Halliburton. ¹ Respondent moved to dismiss the petition for failure to state a cause of action upon which relief can be granted. The trial court sustained the motion and dismissed the petition. The court of appeals affirmed. The cause was certified to this Court by a dissenting judge pursuant to Rule 83.01. We affirm.

I

Both appellants and respondent were engaged in the business of selling life insurance. Two of appellants' prospective customers were informed by Hazel Kohring that appellant, Roy M. Henry, was a "crook." These customers then requested from respondent an article which they apparently were told concerned appellant and which formed the basis for Hazel Kohring's statement. ² Respondent wrote the column entitled "Believe It-Or Not" ³ as his President's Message in "Life Notes," a publication of Life Underwriter's Association of St. Louis, Inc. Appellants' petition alleges that a copy of this article was mailed to these two customers, and that the article alleged that "a certain insurance agent and general agent had acted with 'greed' for the purpose of 'fleecing a consumer for their [the agent's] own personal gain,' and that said general agent was a fraud and a twister." ⁴ Appellants claim that respondent knew such statements were false and defamatory and were made for the purpose of dissuading the two customers from purchasing life insurance from appellants and for the purpose of damaging appellants' business reputations. The petition alleges special damages in the sum of $400 resulting from the lost sale of insurance and seeks $10,000 for damages sustained to appellants' business reputations. ⁵ The petition further requests punitive damages claiming that the respondent acted "willfully and maliciously, and for the purpose of vexing, annoying and harrassing the [appellants] and for the purpose Respondent moved to dismiss the petition, claiming that the alleged defamatory remarks were expressions of opinion and thus constitutionally barred from becoming the subject of a defamation action. The court of appeals affirmed the dismissal, stating in effect that all opinions are constitutionally privileged, even if falsely and insincerely held, as long as the facts supporting the opinion are set forth so that a reader could draw his or her own conclusion. While we believe the court of appeals reached the correct result, the importance of the issue requires a more detailed consideration of the matter.

of destroying the business reputation of the [appellants]."

II

The complexity of the law in this area requires that we first examine certain general principles governing the common law of defamation before addressing the protections afforded by the First Amendment.

At common law, causes of action for libel and slander developed to protect an individual against harm to his or her reputation. L. Eldridge, The Law of Defamation 2 (1978); W. Prosser & W. Keeton, supra, at 771 R. Sack, supra, at 1. Modern law includes these causes of action under the single tort of defamation, ⁶ while retaining many of the common law characteristics of each. ⁷ W. Prosser & W. Keeton, supra, at 771-73; Note, "Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege," 34 Rutgers L.Rev. 81, 83 (1981). "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559. Courts in the first instance must determine whether a statement is capable of defamatory meaning and then the jury decides whether the words were so understood. W. Prosser & W. Keeton, supra, at 781. See e.g., Davis v. Ross, 754 F.2d 80, 82-083 (2nd Cir.1985); Worley v. O.P.S., 69 Or.App. 241, 686 P.2d 404, 406 (1984); Thomas Merton Center v. Rockwell Intern. Corp., 442 A.2d 213, 215 (Pa.1982), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351.

The common law provides the defamation defendant with three general types of defenses. First, truth may always be asserted as an absolute defense. Mo. Const. art 1, § 8. Second, certain statements are absolutely privileged: for example, statements made during judicial proceedings. ⁸ Third, other statements receive a conditional or qualified privilege.

Two types of qualified privileges exist at common law. First, there is the doctrine of fair comment. The law is well-settled "that a newspaper has the right fairly and honestly to comment upon a matter of public interest." Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480, 488 (1912). See generally McClung v. Pulitzer Publishing Co., 279 Mo. 370, 214 S.W. 193 (banc 1919). This right of comment is limited to expressions of opinion honestly and fairly held and based upon truth. Questioning the motives of a public official often falls within the purview of the privilege. In Warren v. Pulitzer Publishing Co., 336 Mo. 184, 78 S.W.2d 404 (1934), the Court explained:

One also has the right (and this applies to a newspaper which is properly in the business not only of giving the public news but also of making them think about its significance) to comment upon true facts, when they are matters of public concern, by stating his inferences and conclusions about them. One may even be wrong in the inference he draws from true facts, which may be susceptible of more than one interpretation, and may even state such inferences critically and sarcastically and not be guilty of libelous defamation (36 C.J. 1283, § 287); but to stay within the field of this privilege, he must not state his conclusions as facts, unless they are true. 36 C.J. 1282, § 285. The right to comment or criticize means the right to draw inferences from facts, subject to the qualification that the facts are true; that the inferences are reasonable; and that they are made in good faith and without malice. 36 C.J. 1279-1283, §§ 276-289. If facts and comments are stated in the same article, it should clearly show what are facts and what are merely the writer's conclusions therefrom.

Id. 78 S.W.2d at 413. Once the privilege attaches, the plaintiff can defeat the privilege upon proof that defendant abused the privilege. Cook v. Pulitzer Publishing Co., supra, at 492 (Kennish, J., on motion for rehearing). See generally Hallen "Fair Comment," 8 Tex.L.Rev. 41 (1929); Titus, "Statement of Fact versus Statement of Opinion--A Spurious Dispute in Fair Comment," 15 Vand.L.Rev. 1203 (1962); Veeder, "Freedom of Public Discussion," 23 Harv. 413 (1910); Note, "Fair Comment," 62 Harv.L.Rev. 1207 (1949).

Second, in addition to the privilege of fair comment a defendant can assert a qualified privilege if the statement was made under certain circumstances. "[A] publication made on an occasion which furnishes a prima facie legal excuse for the making of it; and which is privileged, unless some additional fact is shown which so alters the character of the occasion as to prevent it furnishing a legal excuse." Lee v. W.C. Fuetterer Battery & Supplier Co., 323 Mo. 1204, 23 S.W.2d 45, (1929) (quoting Townshend on Slander and Libel (4th Ed. § 209)). The scope of the privilege generally encompasses:

all statements made bona fide in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they are made. A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter, which, without this privilege, would be slanderous and actionable. But in this definition In 36 C.J. 1241, it is said: "qualified privilege exists in a larger number of cases than does absolute privilege. It relates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, upon a subject matter in which the author of the communication has an interest, or in reference to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty. Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice. As to such communications there is no civil liability."

of a privileged communication, the word "duty" cannot be confined to legal duties, which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation. * * *

Id. Providing information at the request of the recipient, for the common interest of both the recipient and the declarant, or to protect an interest of the recipient establishes a qualified privilege. See e.g., Ingber v. Ross, 479 A.2d 1256, 1264 (D.C.App.1984) (communication to prospective patient). See generally L. Eldridge, supra, at §§ 86-87; Note, "The Impending Federalization of Missouri Defamation Law," 43 Mo.L.Rev. 270, 282-85 (1978). Along with the privilege for fair comment, these other qualified privileges can be defeated upon a showing of express common law malice. See e.g., Smith v. McDonald, 737 F.2d 427 (4th Cir.1984), cert. granted, 469 U.S. 1032, 105 S.Ct. 502, 83 L.Ed.2d 394; Marck v. Johns Hopkins University,...