Link v. Hamlin

• Decision Date: 12 March 1917
• Citation: 193 S.W. 587,270 Mo. 319
• Parties: J. J. LINK, Appellant, v. MONTRAVILLE HAMLIN, and MONTRAVILLE HAMLIN Doing Business as the AMERICAN MEDICAL JOURNAL
• Court: Missouri Supreme Court

193 S.W. 587

270 Mo. 319

J. J. LINK, Appellant, v. MONTRAVILLE HAMLIN, and MONTRAVILLE HAMLIN Doing Business as the AMERICAN MEDICAL JOURNAL

Supreme Court of Missouri, First Division

March 12, 1917

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Reversed (with directions).

Frank A. Habig for appellant.

(1) It was conceded by the trial court that the article published of and concerning plaintiff by the defendant was a libel per se Sec. 4818, R. S. 1909; Kenworthy v. Journal Co., 117 Mo.App. 335. Words which on the face of them, when falsely published of a party, in connection with his trade or profession, which must necessarily injure him in respect thereto or which directly tend to the prejudice of such person in his trade or profession, are actionable in themselves without proof of damages. St James v Gaiser, 125 Mo. 527; McGinnis v. Knapp & Co., 109 Mo. 143; Ukman v. Daily Record Co., 189 Mo. 392; Price v. Whitley, 50 Mo. 439; State v. Powell, 66 Mo.App. 613; Finley v. Steele, 159 Mo. 304; Farley v. Pub. Co., 113 Mo.App. 224; Sullivan v. Commission Co., 152 Mo. 268; Cook v. Globe, 227 Mo. 534; Cook v. Pub. Co., 241 Mo. 362; Minter v. Bradstreet Co., 174 Mo. 486. (2) The trial court required of plaintiff that he prove not only that the article was false, but that he also prove express malice. It was held in Cook v. Globe Ptg. Co., 227 Mo. 531, that "the falsity of all defamatory words is presumed in plaintiff's favor, and he need give no evidence to show them false." See also Nelson v. Wallace, 48 Mo.App. 198; Minter v. Bradstreet Co., 174 Mo. 486. The case of Cook v. Pub. Co., 241 Mo. 362, holds that "proof of the falsity of the facts alone is all that a plaintiff is required to prove and that it is not necessary in addition that the plaintiff should also prove that the publication was inspired by actual malice." See, also Cornelius v. Cornelius, 233 Mo. 35. (3) Upon proof of the falsity of the words published, malice is presumed. Academy v. Gaiser, 125 Mo. 527; Mitchell v. Bradstreet Co., 116 Mo. 226.

Roy Hamlin and Hamlin, Collins & Hamlin for respondents.

(1) The article was a qualified privileged communication, and being so, the court did right in directing a verdict for the defendants and in support of both propositions we submit that the case of Holmes v. Royal Fraternal Union, 222 Mo. 556, is ample authority, together with the cases therein cited. See also Finley v. Steele, 159 Mo. 299. The trial court after having heard the evidence offered by the plaintiff found that plaintiff had failed to prove actual or express malice, and found rightly that the article was published by the defendants, honestly believing that the statements made therein were true, or, that they had reasonable cause to believe they were true, and with no motive of malice. In doing so it followed the rule in such cases in this State. Cornelius v. Cornelius, 233 Mo. 1; Cook v. Pub. Co., 241 Mo. 326. In such cases the onus of proving express malice and falsity rests upon the plaintiff. Cook v. Pub. Co., supra. (2) The petition does not state a cause of action. The article published was not libelous per se, and the language used in same should not be construed as libelous. The language when considered in its ordinary sense simply says that the owner, by reason of his authority, converted the American Medical College into an Allopathic from an Eclectic School, thereby as considered from an Eclectic standpoint, a step backward or retrograding. Diener v. Chronicle Pub. Co., 230 Mo. 625; Baldwin v. Walser, 41 Mo.App. 243; Spurlock v. Investment Co., 59 Mo.App. 225.

RAILEY, C. Brown, C., concurs.

OPINION

RAILEY, C.

On August 20, 1910, plaintiff commenced an action in the St. Louis Circuit Court, against said defendants, to recover damages arising out of the publication of a certain alleged libelous article in the American Medical Journal.

The amended petition alleges that defendant Hamlin was publishing the above monthly journal, in St. Louis, Missouri; that it has a large circulation in said city, throughout the State of Missouri, and many other States, as well as the cities therein; that the July number for 1910 was largely circulated as above stated. He alleges that there was printed and published in the July issue aforesaid, in volume 38, number 7, signed by Stephens, defendant herein, the following defamatory and libelous article, of, and concerning plaintiff, to-wit:

"The Rape of the American Medical College.

"We want to caution all our Eclectic friends, that the American Medical College has been raped; that it has been prostituted to allopathy and therefore is no more an eclectic institution. Early in June of this year it was declared, by its OWNER, a regular college and so published in the daily papers.

"The virtue of the college was sullied nine years ago when an allopath was placed on the faculty and permitted to purchase a block of stock, and its final prostitution completed when that same allopath secured, by purchase, a controlling interest. The act of harlotry was finally accomplished in June, 1910. This individual professed great love for Eclectic Principles; was accepted into our Eclectic Societies and in every way inveigled himself into the good graces of Eclectics with, we believe, the direct aim of destroying the American as an Eclectic institution. This simply goes to show that you cannot change a wolf into a sheep, even if you do clothe him in a coat of wool. Hence the inevitable has happened. The flock of sheep feels the fangs of the animal which could not be hidden for long. So we warn you, our friends, to look to it that no Eclectic student enters the poisoned atmosphere of this institution. The American has no standing, having been condemned by the American Medical Association as incompetent, and it is no longer a member of the Confederation of Eclectic Colleges. Its diplomas were refused recognition by the Illinois board at the close of the last session because of meager equipment. From this it is evident its graduates can have no standing professionally. The institution has no future and its death is only deferred for a very short time. In the very nature of things it must draw its students from the allopathic ranks, and we ask in all seriousness, what fool would jeopardize his future professional career by graduating from a one-man allopathic college without a single feature to recommend it? What kind of a young man would he be who would pass the Washington University and the St. Louis University by as allopathic institutions, and attend an insignificant college standing in their shadow and but poorly manned with instructors? God pity the people who employ such a man, a man whose lack of judgment would induce him to take such a course. Decidedly, the place for such a man is in the insane asylum. There is no excuse of a small college at the present time except as an Eclectic or Homeopathic institution.

"We want our readers to know that every Eclectic who held a chair in the faculty of the American while it yet retained a semblance of Eclecticism, quit the institution at once when the rape took place, for none of them was a party to the act of prostitution. These are now banded together and are all working harmoniously to establish a new Eclectic Medical College in St. Louis, ready for instruction in September, where Eclecticism will be taught and where its principles will remain forever supreme. And the first scoundrel who shows his flat head will receive a rap that will deter him from committing an offense such as has been done the American. Professional sneaks will be dealt with according to their deserts henceforth.

"We also want to warn you that a concerted movement is going forward all along the line to destroy us as a school (of which we believe the course of the American Medical College forms a part) and you who think you are loved to death by this tribe of bigoted rascals, know, that they only lick you preparatory to making a meal of you. Be warned in time for the American Medical Association, backed by the moneyed interests of this country are doing all in their power to crush everybody but themselves, as is shown by the many obnoxious bills introduced into Congress the past session. Therefore, look to your own interests and keep clear of all connections with those who would destroy you without compunction, for 'they come as a thief in the night' to rob you of your inheritance.

"We are fighting the same old fight our fathers fought, and the battle ahead of us is as great as they ever fought because, while they were ever awake to the dangers that lurked on every hand, we have been lured into a dangerous lethargy by blandishments and ostensible good will.

"We would be glad to have a letter, good and strong, from every Eclectic who may read this as a token of alertness and in evidence of good will. Remember we are working for you as for ourselves, and our fight is your fight. Let us then stand shoulder to shoulder against the common enemy; shoulder to shoulder for freedom in medical practice; and if we thus stand together, there is no power on earth, nor in hell where all oppression springs from, that can destroy us. If we do not, the sun of Eclecticism will forever set, and that in this generation.

"Let us work then as brothers in a good cause and give of our time and money when necessary and all will be well.

"Stephens."

Plaintiff alleges that he is the "owner and allopath" referred to in said article; that defendants meant and intended to charge therein, and its readers understood he was being charged with having, by fraud, deceit and trickery gotten possession of said college, and by false and fraudulent representations, statements, and actions won the...