Kenworthy v. The Journal Co.

• Decision Date: 05 March 1906
• Citation: 93 S.W. 882,117 Mo.App. 327
• Parties: LOUIS S. KENWORTHY, Respondent, v. THE JOURNAL COMPANY, Appellant
• Court: Kansas Court of Appeals

93 S.W. 882

117 Mo.App. 327

LOUIS S. KENWORTHY, Respondent, v. THE JOURNAL COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 5, 1906

Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Frank P. Sebree for appellant.

(1) The court committed error in refusing the demurrers to the evidence, offered at the close of plaintiff's evidence and at the close of all the evidence, because there was no cause of action proven against the defendant. 2 Starkie on Slander, 661; 1 Jaggard on Torts, 484; Odgers on Libel and Slander, p. 127; Caruth v. Richeson, 96 Mo. 186; Creceliue v. Bierman, 59 Mo.App. 513; Leonard v Allen, 11 Cush. 241 (Mass.); Smart v Blanchard, 42 N.H. 147; Harvey v. Coffin, 5 Blackford 566; Jones v. Davers, 1 C. R. 496, case No. 16; Wiseman v. Wiseman, Cro. Jac. 107. (2) The case ought to be reversed without remanding. Authorities supra; Heller v. Pulitzer Pub. Co., 153 Mo. 205 Sands v. Marquardt, 113 Mo.App. 490, 87 S.W. 1011.

Halstead & Halstead and Reed, Yates, Mastin & Howell for respondent.

(1) The petition states a cause of action. Magnet v. O'Neill, 51 Mo.App. 35; Price v. Whitely, 50 Mo. 439; 18 Am. and Eng. Ency. Law (2 Ed.), pp. 867 and 989; Johnson v. St. Louis Post-Dispatch Co., 65 Mo. 539; McGinnis v. Knapp, 109 Mo. l. c. 150. (2) The demurrer to the evidence was properly overruled. McGinnis v. Knapp, 109 Mo. l. c. 149; Johnson v. St. Louis Post-Dispatch Co., 150 Mo. l. c. 540; Forbes v. Johnson, 50 Ky. 48; Hardy v. Williamson, 86 Ga. 551; Wofford v. Meeks, 129 Ala. 349; Maybee v. Fisk, 42 Barb. (N. Y.), 326; Cook v. Rief, 52 N.Y.S. 302; Fernstermaker v. Tribune Co., 12 Utah 439, and 13 Utah 532; State v. Armstrong, 106 Mo. 395; Farley v. Evening Chronicle Co., 113 Mo.App. 216, 87 S.W. 564.

BROADDUS, P. J. Johnson, J., concurs; Ellison, J., dissents in a separate opinion.

OPINION

BROADDUS, P. J.

The plaintiff's suit is for libel. The following taken from defendant's statement embraces sufficient of the petition for the purposes of the case:

"The following excerpts are believed to cover all material parts of the publication in question. The headlines were:

"'AS A PERJURER.

"'ALLEN V. ELLIS ARRESTED BY THE METROPOLITAN.--WITNESS IN A DAMAGE SUIT.

"'He Told of Seeing W. W. Decoo Thrown From Car.--In County Jail He Tells of Alleged Promises Made for Giving False Testimony in 1902.--Other Arrests Threatened by the Company.'

"Then follows the body of the news item, stating the arrest of Ellis, at the instance of the Metropolitan company, upon a charge of giving perjured testimony in the damage suit brought by Decoo against the company in 1902, and then comes this:

"'According to the arrested man, two or three other witnesses in the Decoo case will be arrested as soon as they can be located. . . .

"'When the case was called March 18, 1903, these witnesses appeared and claimed one day's attendance: Mrs. Lizzie Gray, A. V. Ellis, Dr. H. B. Coleman, Louis F. Kenworthy, William Holmes, G. W. Lilly, I. Freidman. On June 25 William Holmes and R. W. Tobin claimed one day and Allen V. Ellis two days, the latter being the witness now under arrest.

"'Of the above witnesses, it is more than probable that three will be arrested charged with giving perjured testimony. As to who they are, the Metropolitan people refused to state until the warrants are served, but it is known that one of them is a negro.'

"Under the sub-heading of 'the company's story' and among other statements of an official of the street railway company, comes this:

"He then said in reference to the Decoo case: 'This is another one of the cases in which the plaintiff or one or more of his witnesses have been arrested and are now awaiting trial for alleged perjury, one man has already been convicted and is serving his sentence at the present time. The company proposes to keep up this investigation of fraudulent witnesses and cases and will push to the limit every case in which sufficient proof can be obtained to justify the filing of information by the prosecuting attorney. A number of other cases in connection with damage suits are now being worked up, and as fast as necessary information can be obtained will be turned over to the prosecuting attorney's office for his action. The company is determined, and will spare no work or effort to run down every fraudulent case and every case in which perjury has been committed.'

"Under the sub-heading 'Ellis talks in jail,' appears, among other things, the following:

"'I know there are two or three others going to be arrested, because when I was making my confession in the office with a big crowd of people, officers, I guess, I heard them talking about getting a warrant for (giving two names) and so I reckon I will have company. I know this much, too; if I get stuck for this I'll bet I know one man who goes along. He's certainly given me the hot end of this deal.

"'The prosecuting attorney yesterday drew up several informations but stated that until the parties wanted under them are arrested he did not deem it policy to disclose the names. He did not state that these documents referred to witnesses or to the plaintiff in the Decoo case. But it is probable that they are a result of the damage case instituted by Decoo.'

"Plaintiff then states that he 'did on March 18, 1903, claim one day's attendance as a witness in said suit of Decoo v. The Metropolitan Street Railway Company and that plaintiff is the person named and designated as Louis F. Kenworthy in said article so published by defendant.'

"Then comes the following innuendo:

"'Plaintiff states that in and by said article hereinbefore set out, published by defendant as aforesaid, defendant charged that plaintiff had been guilty of the crime of perjury, and that said Ellis, in his confession, had accused plaintiff of having committed the crime of perjury, and that the prosecuting attorney was preparing to prosecute plaintiff for said crime, and that plaintiff was suspected by the prosecuting attorney, the police officers and the officials of the Metropolitan Street Railway Company of having committed the crime of perjury and that plaintiff would be arrested charged with the crime of perjury.

"'That the said article published by defendant as aforesaid concerning plaintiff was and is libelous; that the same was and is false; that the same was and is malicious; that there was no justification therefor, as defendant well knew.'

"The petition, lastly, alleges the circulation and wealth of defendant and prays judgment for $ 5,000 compensatory and another $ 5,000 as punitive damages.

"The answer was a general denial."

The principal question raised in the case is: Did the defamatory publication designate plaintiff as one of the persons defamed? The decisions are almost uniform that, where publication is defamatory in its character, an allegation by way of innuendo that plaintiff was the person defamed, other proper averments made, the petition alleges a good cause of action. Under this rule, the petition herein is held to be sufficient. And, although the plaintiff's petition alleges that the defamatory matter was published of and concerning him, yet if it does not so appear by the publication itself, the plaintiff was not entitled to recover as he offered no extraneous evidence showing to prove that fact.

The libel charges that a certain person in the Decoo case named Allen V. Ellis had been arrested for perjury, and that among the witnesses called on a certain day, there appeared and claimed one day's attendance, as such witnesses, the said Ellis and six other persons named, including plaintiff, and that, "of the above witnesses, it is more than probable that three will be arrested charged with giving perjured testimony. As to who they are, the Metropolitan people refused to state, but it is known that one of them is a negro." It is argued at length, and authorities cited to the effect, that the publication does not identify plaintiff as one of the witnesses who would probably be arrested and charged with giving perjured testimony. "The law is too well settled that if the defamatory matter points to no person in particular, it then becomes a question of fact whether it does or does not apply to the plaintiff. Even where a class is described, it may be that the slander refers to a particular individual and whether it does or not may be shown by other evidence." [Caruth v. Richeson, 96 Mo. 186, 9 S.W. 633.] The foregoing was quoted by the court from Addison on Torts, and the court further quoted from Odgers on Lib. and Slan. the following: "Was the imputation sufficiently definite to injure the plaintiff's reputation? Is it clear that it is the plaintiff to whom he referred? Unless these questions can be answered in the affirmative, no action lies. There must be a specific imputation upon the person suing." The court seems to have based its decision upon the authorities quoted. The charge was a general one against a corrupt combination of unprincipled and notorious persons holding offices of State under appointment of the Governor, none of whom were named. The petition was sufficient, but the evidence failed to show to the satisfaction of the jury that plaintiff was intended to be charged as a member of the combination, and as a result the plaintiff failed to make out his case.

In Harvey v. Coffin, 5 Blackf. 566, the plaintiff was one of three sons of Jethro Coffin. The defendant was charged with having said that one of the three stole corn, etc. The court held that it was not actionable to charge one of three persons with having committed larceny unless the one of whom the defendant spoke can be identified. In Jones v Davers, 1...