Kleinschmidt v. Johnson

• Decision Date: 09 October 1944
• Docket Number: No. 38943.,38943.
• Parties: KLEINSCHMIDT v. JOHNSON et al.
• Court: Missouri Supreme Court

183 S.W.2d 82

KLEINSCHMIDT v. JOHNSON et al.

No. 38943.

Supreme Court of Missouri, Division No. 1.

October 9, 1944.

Rehearing Denied November 6, 1944.

Appeal from Circuit Court, Franklin County; Hon. R. A. Breuer, Judge.

Action for libel by Robert E. Kleinschmidt against Nettie Johnson and others, doing business under the style and firm name of Tri-City Independent. Verdict and judgment for defendants, and plaintiff appeals.

Judgment affirmed.

Frank Dietrich, M. C. Matthes, and R. E. Kleinschmidt, all of Hillsboro, for appellant.

William G. Marbury and W. R. Carver, both of St. Louis, for respondents.

VAN OSDOL, Commissioner.

Action for $25,000 actual and $25,000 punitive damages for libel founded upon an article published in defendants' newspaper. The jury returned a verdict for defendants and plaintiff has perfected an appeal from the consequent judgment.

Plaintiff (appellant) was the Republican candidate for the office of Judge of the Twenty-First Judicial Circuit of Missouri in the year 1938. He and his opponent engaged in a very active campaign for election to the office. Plaintiff had been prosecuting attorney of his (Jefferson) county from January 1915 to July 1918, and during the years 1921 and 1922; and his opponent was the incumbent of that office in the year 1938. Plaintiff had represented to the electorate that his opponent as a prosecuting officer had failed in his duty in prosecuting violators of the gambling laws.

On November 7th, the eve of the general election for the year 1938, defendants (respondents) printed and published in an extra edition of their newspaper, the Tri-City Independent of Festus, an article containing the following words which plaintiff has alleged are defamatory,

"Kleinschmidt Admits Gambling in County During His Regime.

"According to last minute information gleaned from the metropolitan newspapers, R. E. Kleinschmidt, Republican candidate for the office of Circuit Judge, admits he allowed gambling to exist at two famous resorts in Jefferson County at the time he was Prosecuting Attorney. He says that two years time was not long enough for him to gather evidence to turn over to the grand jury before going out of office.

"The county Republican Chairman, Henry Weber, also is quoted as saying he warned Kleinschmidt to stay away from the gambling story, and that because he disregarded this advice the Republican party had dropped all activity in behalf of the candidate. In other words, according to the St. Louis paper, Mr. Kleinschmidt admits he allowed gaming with his knowledge.

"Edw. T. Eversole, the Democratic candidate for the same office and the present Prosecuting Attorney, raided every gambling joint in the county upon information furnished by the Governor's office, but no evidence was obtained that would allow of prosecution. Another Republican mnstake. More votes for Eversole."

Defendants by answer admitted the publication of the article, denied that it was libelous and pleaded justification, qualified privilege of comment or criticism on a matter of public interest, and mitigation.

Errors of the trial court are assigned by plaintiff (1) in the admission of evidence in support of the plea of justification; (2) the submission of such plea in the absence of competent evidence in support thereof; and (3) in instructing the jury that such plea was substantiated if the truth of the article was established "in substance" without advising the jury of that which would constitute truth "in substance."

It is not and would not be contended that plaintiff's and his opponent's candidacy for the office of circuit judge was not a matter of public interest. Plaintiff, a candidate for public office, by his candidacy submitted to the people the question of his qualifications for public office; he must have expected and should have welcomed a publication of the true facts of his official acts, and he should have expected and welcomed the fair discussion amongst the electorate and in the press of his official conduct, and of his character, ability, good faith, sincerity and will to perform his duty as such conduct and traits bore upon the question of his qualifications for the office sought. Such a free and truthful publication of fact and fair discussion is necessary in order that the people may be so informed as to be able to make an intelligent selection of officials. But the publication of false defamatory statements of fact, and comment or criticism malicious and in bad faith, not only are not helpful but are quite inimical to the intelligent selection of a public officer. Moreover, a policy of the law which did not protect a candidate's good name from false defamatory statements of fact, and from comment or criticism made in bad faith and actuated by malice or based on false statements of fact, would discourage the candidacy of many worthy persons and tend to deprive the people of the service of able and honest officials. See Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404; Newell, Slander and Libel, §§ 440, 441; 110 A.L.R. 412; 23 Harvard Law Review 413.

The printed article published by defendants, which we have quoted supra, although purporting to have been according to information gleaned from the metropolitan press, states the facts to be that plaintiff had admitted that he had allowed gambling to exist in Jefferson County at two famous resorts when he was prosecuting attorney, and the article comments that, "in other words" plaintiff had admitted that he, as such officer, allowed gaming with his knowledge. And the article by the statement of facts and comment implied the facts to have been as plaintiff had admitted. Such a statement of facts and comment, in our opinion, was reasonably susceptible to the construction that it conveyed the imputation that plaintiff, a candidate for the office of circuit judge, had been theretofore guilty of improper conduct as the incumbent of the office of prosecuting attorney, in that, during his tenure of office as prosecuting attorney, gambling was notorious in Jefferson County and such condition existed with plaintiff's knowledge and actual or tacit permission or consent, and that consequently plaintiff was guilty of dereliction of his duty in the prosecution of those who violated the gambling laws. See State on Inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979. Such an imputation was within the statutory definition of libel, Section 4758, R.S.1939, Mo.R.S.A. § 4758, and, if the facts expressly or impliedly stated from which such an imputation could be drawn were untrue, the article was actionable. Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480. The issue of whether the article conveyed such a meaning was for the jury.

The right of fair discussion obtaining, there was no presumption of falsity or malice, but plaintiff could have prima facie overcome the defense of qualified privilege of comment or criticism by the proof either that the facts published and commented upon were false or that the publication was inspired by actual malice. Upon the plaintiff's proof of actual malice the defendants could nevertheless justify by showing that the facts, expressly and impliedly stated, and the imputation were true. Cook v. Pulitzer Pub. Co., supra. See also 36 C.J., Libel and Slander, § 278. It must now be apparent that plaintiff in making his contentions applicable only to the defense of justification has ignored the defendants' privilege of criticism, the issues of which defense the trial court submitted to the jury. Or plaintiff has assumed that he established the actual malice of the publication prima facie; that the jury found that the publication was malicious; and that defendants were relegated to their plea of justification. In view of our conclusions, infra, we do not...