Kleinschmidt v. Bell, 38849.

Citation183 S.W.2d 87
Decision Date09 October 1944
Docket NumberNo. 38849.,38849.
PartiesROBERT E. KLEINSCHMIDT, Appellant, v. WILSON BELL, doing business under the style and firm name of the Independent-Journal, and JOHN EVERSOLE.
CourtUnited States State Supreme Court of Missouri
183 S.W.2d 87
ROBERT E. KLEINSCHMIDT, Appellant,
v.
WILSON BELL, doing business under the style and firm name of the Independent-Journal, and JOHN EVERSOLE.
No. 38849.
Supreme Court of Missouri.
Division One, October 9, 1944.
Rehearing Denied, November 6, 1944.

[183 S.W.2d 88]

Appeal from Mississippi Circuit Court. — Hon. James C. McDowell, Judge.

AFFIRMED.

Frank Dietrich and R.E. Kleinschmidt for appellant.

(1) The judge unlawfully and wrongfully sent the case to Mississippi County, which was just as inconvenient as Pemiscot. Sec. 1062, R.S. 1939; Irons v. Express Co., 300 S.W. 283; State ex rel. v. Higbee, 43 S.W. (2d) 825. (2) The court erred in overruling that portion of appellant's motion to strike portions of the second amended separate answers of the defendants, alleging that the article was "true in substance and in effect," and which purported to justify only some and not all of the libelous portions of the article, there being no allegation in the answers that the Republican Committee had repudiated plaintiff because he had raised the gambling issue, as alleged in the libelous article, and there having been no allegation in the answers that there was gambling in Jefferson County except at the two clubs mentioned in the article. But the court permitted evidence of all sorts of hearsay evidence as to other forms and places of gambling. The plea of justification as well as the proof must be as broad as the charge before the evidence is competent or the issue properly submitted to the jury. 37 C.J., p. 45, sec. 379; Nelson v. Musgraves, 10 Mo. 648; Meriwether v. Knapp & Co., 120 Mo. App. 354; Reese v. Fife, 279 S.W. 415. (3) It was improper for the court to permit respondents to offer in evidence articles in the St. Louis Star in 1921, seventeen years prior to the libelous articles herein, 37 C.J., p. 73, sec. 470; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436, 158 S.W. 54; Warren v. Pulitzer Pub. Co., 78 S.W. (2d) l.c. 412. (4) As plaintiff's general reputation for honesty, morality and good citizenship is in issue in every slander or libel case, it was error for the court to refuse to permit Lloyd Murphy, a member of the State Patrol, 30 years of age, to testify as to appellant's good reputation on November 7, 1938. Yager v. Bruce, 116 Mo. App. 473; Williamson v. Eckhoff, 170 S.W. 322; 37 C.J., p. 60, sec. 422; Sec. 1895, R.S. 1939. (5) A plaintiff in a libel case is entitled to offer in evidence other articles in same newspaper or written by same defendant, relating to the same subject matter, and therefore the court should have permitted appellant to offer in evidence the editorial in The Potosi Journal, published by the respondent Bell, on November 3, 1938, pertaining to the same subject matter as in the libelous article. Julian v. Kansas City Star, 209 Mo. 35; 37 C.J., p. 71, sec. 462, note 77. (6) It was the rankest sort of hearsay evidence, and incompetent, which the court permitted from respondents' witnesses as to gambling houses in DeSoto and other parts of Jefferson County. 37 C.J., p. 45, sec. 379; Anthony v. Stephens, 1 Mo. 254; Nelson v. Musgraves, 10 Mo. 648; Meriwether v. Knapp & Co., 120 Mo. App. 354; Arnold v. Jewett, 125 Mo. 241; Rose v. Tholborn, 153 Mo. App. 408; Yager v. Bruce, 116 Mo. App. 473; Wright v. Kansas City, 187 Mo. 678; Reese v. Fife, 279 S.W. 415. (7) And even if the article had merely charged open and notorious gambling in Jefferson County, without alleging appellant's guilty knowledge and consent thereof, evidence of such gambling, even without violating hearsay rule, would not have been competent, because it is not sufficient answer to a charge of libel to show that the publication only accuses the plaintiff of having done that which he may legally do. Seested v. Printing Co., 31 S.W. (2d) 1045. (8) None of the evidence objected to herein on ground of hearsay came within any of the exceptions to the hearsay rule. 22 C.J. 199, sec. 166; Lynch v. Railroad Co., 61 S.W. (2d) 918. (9) It is hornbook law that a witness, especially on cross-examination, may be impeached by showing that he has made some previous contradictory statements, either oral or written, as to any material fact testified to by him, and therefore it violated the fundamental principles of law for the court to prohibit appellant from showing, on cross-examination of respondents' witness Fitzgerald, the reporter who wrote the original libelous article for the St. Louis Globe-Democrat, that he had stated previously a number of times, both orally and in writing, that the original article as well as the reprints thereof were false and that appellant had been damaged thereby. 70 C.J., p. 800, sec. 1005, p. 1053, sec. 1240. (10) There were two main libelous charges contained in the articles herein involved, first that the appellant "permitted" two certain gambling houses to operate "unmolested," meaning that he did absolutely nothing to stop them, the other being that the Republican Committee of Jefferson County had warned him to stay away from the gambling issue and had repudiated him because he did not do so; therefore, any evidence which did not tend to prove one or both of those charges was improperly admitted. Sotham v. Telegram Co., 239 Mo. 606; Rail v. Newspaper Assn., 192 S.W. 129; Cook v. Globe Printing Co., 227 Mo. 471; Reese v. Fife, 279 S.W. 415. (11) A plaintiff in a libel case is entitled to offer in evidence other articles in same newspaper, or written by the same defendant, relating to the same general subject matter. Julian v. Kansas City Star, 209 Mo. 35; 37 C.J., p. 71, Sec. 461, note 77; Edwards v. Nulsen, 152 S.W. (2d) 28, 347 Mo. 1077. (12) In libel or slander cases any evidence of facts or circumstances which reasonably tend to show actual malice is admissible. 37 C.J., p. 77, sec. 479, note 1; Julian v. Kansas City Star, 209 Mo. 75; Cook v. Globe Printing Co., 227 Mo. 471. (13) Instruction A-1, given on behalf of respondents, was erroneous, not only because it contained the words "in substance" without informing the jury what was meant thereby, but also because it submitted to the jury the defense of justification without any evidence on which to base it, and also because it permitted the jury to consider the absence of malice on the part of respondents as a complete defense. "true in substance", or "substantially true" in an instruction. Atteberry v. Powell, 29 Mo. 429; Christal v. Craig, 80 Mo. 367; Parsons v. Henry, 164 S.W. 241; Yager v. Bruce, 116 Mo. App. 473; Sotham v. Telegram Co., 239 Mo. 606; Rail v. Newspaper Assn., 192 S.W. 129; Jones v. Murray, 167 Mo. 25; Reese v. Fife (Mo. Sup.), 279 S.W. 415, l.c. 426, 427; Morris v. Sailer, 154 Mo. App. 305, l.c. 311; Priest v. Insurance Co. (Mo. App.), 9 S.W. (2d) 543; Burrows v. Pulitzer Pub. Co. (Mo. App.), 255 S.W. 925. (14) Instruction A-1, given on behalf of respondents was erroneous, not only because it contained the words "in substance" without informing the jury what was meant thereby, but also because it submitted to the jury the defense of justification without any evidence on which to base it, and also because it permitted the jury to consider the absence of malice on the part of respondents as a complete defense. Even if appellant had collected damages from any other person or newspaper, such fact would not have been competent evidence in this case, and the instruction was necessarily erroneous and prejudicial. 37 C.J., p. 93, sec. 522; Arnold v. Sayings Co., 76 Mo. App. 159; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436, 158 S.W. 54. (15) The headlines of a libelous article are as much libelous, if not more so, than any other portion thereof, and if one changes the headlines or adds anything to a previous article, it is not merely a republication or reprint thereof, but is such reprint with additional matter thrown in. Brown v. Globe Printing Co., 213 Mo. 611. (16) If the headlines of an article are false and libelous, plaintiff is entitled to damages, even though the body of the article is privileged or true. Brown v. Globe Printing Co., 213 Mo. 611. (17) Since the plea of justification must always be as broad as the charge, it was error for the court to submit to the jury any plea of justification in this case, because there was no evidence whatsoever as to several statements in the article. 37 C.J., p. 45, sec. 379; Nelson v. Musgraves, 10 Mo. 648; Meriwether v. Knapp & Co., 120 Mo. App. 354; Reese v. Fife, 279 S.W. 415. (18) It is reversible error in any case to permit counsel to argue to the jury matters not in evidence, and this court has severely condemned the reading of a law book, in a libel case, but the reading from a dictionary or an almanac not in evidence is without precedent in Missouri. Heller v. Pulitzer Co., 153 Mo. 205; State ex rel. v. Patton, 77 S.W. (2d) 857; Wells v. Wells, 144 Mo. 198; Jones v. Murray, 167 Mo. 25.

William G. Marbury and Sam Richeson for respondents.

(1) The court erred in sustaining appellant's motion to strike part of respondents' second amended answer, wherein it was alleged that this same appellant had prosecuted to a final determination a cause of action against the St. Louis Globe-Democrat Publishing Company for the publication of the same alleged libelous article, wherein the jury determined the article was not libelous, which was a complete bar to this action. Art. II, Sec. 14, Mo. Constitution. (2) The alleged libelous article was not libelous per se, because it did not directly impute the commission of a crime by appellant. Cook v. Publishing Co., 241 Mo. 326; State v. Boyd, 196 Mo. 52; State v. Cox, 298 S.W. 837; Stowes v. Western Bently Merc. Co., 140 S.W. (2d) 714; Tincher v. Natl. Life & Accident Ins. Co., 146 S.W. (2d) 665; Davis v. Mo. Publishing Assn., 19 S.W. (2d) 650. (3) The plaintiff did not make a case for the jury and the demurrer at close of the whole case should have been sustained...

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