Litzinger v. Pulitzer Pub. Co.

• Decision Date: 09 April 1962
• Docket Number: No. 48922,No. 1,48922,1
• Citation: 356 S.W.2d 81
• Parties: Orion J. LITZINGER, Appellant, v. PULITZER PUBLISHING COMPANY, Respondent
• Court: Missouri Supreme Court

Page 81

356 S.W.2d 81

Orion J. LITZINGER, Appellant, v. PULITZER PUBLISHING COMPANY, Respondent.

No. 48922.

Supreme Court of Missouri, Division No. 1.

April 9, 1962.

Lovell W. George, Clayton, for appellant.

Robert D. Evans, Lewis C. Green, Green, Hennings, Henry, Evans & Arnold, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Does the statute fixing venue of actions against corporations authorize plaintiff, a resident of St. Louis County, to bring in the circuit court of that county an action for allegedly libelous matter appearing in a newspaper published in the City of St. Louis by defendant, a domestic corporation domiciled in said city? The trial court held it did not. Plaintiff appealed. The amount in dispute vests this court with jurisdiction.

Plaintiff, a resident of St. Louis County and whose four-year term of office as sheriff ended on December 31, 1960, thereafter, on February 11, 1961, brought this action in the circuit court of that county to recover compensatory damages in the sum of $175,000 and punitive damages in the sum of $50,000 from defendant as publisher of the St. Louis Post-Dispatch for an allegedly libelous editorial published in said newspaper on December 21, 1960. The subject matter of the editorial dealt with plaintiff's conduct as Sheriff of St. Louis County. Summons directed to the Sheriff of the City of St. Louis was issued and served on defendant in the City of St. Louis.

Specifically limiting its appearance for that purpose only, defendant filed verified motion to quash said summons and for dismissal of the action. The motion stated that defendant was a corporation organized under the laws of Missouri with its registered office and agent for the transaction of its usual and customary business in the City of St. Louis and that it did not have or usually keep an office or agent for the transaction of its usual and customary business in St. Louis County; that the action brought by plaintiff was based upon an editorial published in the St. Louis Post-Dispatch, which was a daily newspaper published in the City of St. Louis, which editorial was first published in said city; that if plaintiff had any cause of action against defendant by reason of the publication of said editorial it accrued in said city; that, therefore, no venue of the action existed in the Circuit Court of St. Louis County and said circuit court had no jurisdiction over the defendant; and that to require defendant to appear and defend the action would deny to it equal protection of the law guaranteed to it by the Fourteenth Amendment of the Constitution of the United States and by Section 2, Article One, of the Constitution of Missouri, V.A.M.S. The prayer was that 'the return of service and summons directed to this defendant be quashed and this cause dismissed.' The court sustained the motion to quash the summons, but did not order dismissal of the action.

Thereafter plaintiff, by memorandum filed with the clerk, sought issuance of an alias summons, requesting 'that same be delivered to the Sheriff of St. Louis County with instructions to serve said summons on the corporate defendant by delivering a copy thereof, and of the attached petition, to Asa Bryan, an agent kept by defendant in St. Louis County for the Transaction of its usual and customary business.' Based solely upon the recital set forth in the memorandum, alias summons was accordingly issued. Thereafter the Sheriff of St. Louis County filed his return reciting that the summons had been served 'in the County of St. Louis Missouri on the within named defendant the Pulitzer Publishing Company (a corporation) by delivering on the 30th day of March 1961 a copy of the Summons and a copy of the Petition as furnished by the Clerk to Asa Bryan an Agent kept by the Pulitzer Publishing Company in St. Louis County for the transaction of its usual and customary business in St. Louis County.'

Again defendant, specifically limiting its appearance for that purpose, filed motion 'to quash service and summons and to dismiss for lack of venue and lack of jurisdiction of defendant.' That motion, in substance, alleged that facts recited in defendant's first motion to quash and further stated that the alias summons and petition 'were not served on an officer, or a managing or general agent, or by leaving copies at a business office of the defendant with the person having charge thereof, or on an agent authorized by appointment or required by law to receive service of process'; that the words 'as agent kept by The Pulitzer Publishing Company in St. Louis County for the transaction of its usual and customary business in St. Louis County,' contained in the sheriff's return, were surplusage and not within the provisions of S.Ct. Rule 54.06(c), V.A.M.R., that the insertion of those words in the return was an attempt by the sheriff to make a finding with respect to venue beyond his power and authority, and was an attempt by the sheriff to overrule the finding and order of the court and should be amended as authorized by S.Ct. Rule 54.12. The prayer was 'that the return of service and summons directed to this defendant be quashed and this cause dismissed.'

Attached to said motion was an affidavit of Joseph F. Holland, special assistant to the publisher of the St. Louis Post-Dispatch, reciting, on information and belief, that 'the St. Louis Post-Dispatch is a daily and Sunday newspaper printed and sublished in the City of St. Louis, Missouri, by The Pulitzer Publishing Company, a Missouri corporation, residing in the City of St. Louis, Missouri, with its office for the transaction of its usual or customary business and registered office and agent at 1111 Olive Street and 1133 Franklin Avenue, St. Louis, Missouri; that The Pulitzer Publishing Company does not have or usually keep an office or agent in St. Louis County, Missouri, for the transaction of its usual or customary business, nor has defendant any business office in said county; that its usual and customary business is that of publishing a newspaper, the St. Louis Post-Dispatch; that the St. Louis Post-Dispatch, including all issues printed and published on December 21, 1960, is first published in the City of St. Louis, Missouri; that Asa Bryan, a reporter of The Pulitzer Publishing Company, is not an officer, partner, or managing or general agent, or in charge of any business office of defendant, The Pulitzer Publishing Company, or authorized by appointment or required by law to receive service of process; and that no copy of the summons or petition has been mailed to defendant.' Plaintiff filed no counter-affidavit.

The court, having considered the motion, ordered: 'Defendant's motion to quash service and summons and to dismiss for lack of service heretofore filed and submitted herein, having been duly and fully considered is now by the Court hereby sustained. Court expressly withholds entry of order of dismissal for twenty (20) days from this date to allow plaintiff to make application for Writ of Prohibition, restraining this Court from entering such order of dismissal.'

Plaintiff filed motion in arrest of judgment of dismissal and for rehearing of defendant's motions to quash the original and alias summons and service thereof, with his affidavit attached thereto stating that it was a matter of common knowledge among St. Louis County governmental officers that Asa Bryan was employed by defendant as a reporter or correspondent for the St. Louis Post-Dispatch assigned on a full-time basis to cover the St. Louis County Court House with desk space in said court house and with telephone listings in the St. Louis telephone directory, in which the 'Clayton Court House' was given as the address of the 'Post-Dispatch Correspondent.' The motion was overruled and the cause was dismissed. As stated, this appeal followed.

Our present statute, Section 508.040 RSMo 1959, V.A.M.S. (to which revision all statutory references are made unless otherwise stated), fixing venue of actions in which a corporation is the sole defendant, as material, provides and since prior to 1899 has provided:

'Suits against corporations shall be commenced either in the county where the cause of action accrued, * * *, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.'

Statutes fixing the venue of actions brought against corporations in the county in which the cause of action arose or accrued have produced conflict of authority as to the proper venue of actions for libel against incorporated publishers of newspapers. See annotations, 37 A.L.R. 908 and 148 A.L.R. 477; 33 Am.Jur., Libel and Slander, Sec. 227, p. 208; 92 C.J.S. Venue Secs. 17 and 18, pp. 704-707. The first decision of this court on that subject was the case of Julian v. Kansas City Star Co., decided in 1907, 209 Mo. 35, 107 S.W. 496. There, a divided court held that under the above-quoted statute an action for libel against the publisher of an incorporated newspaper accrued in any county the newspaper was publicly circulated by the publisher despite the admitted fact that the newspaper was published in another county and the first publication of the alleged libel occurred there. Judge Graves, with Judge Lamm concurring, filed a strongly dissenting opinion. That decision was followed (with Judges Graves and Lamm continuing to dissent) until the case of Houston v. Pulitzer Publishing Co. (decided in 1913), 249 Mo. 332, 155 S.W. 1068, 1070, wherein the court overruled the Julian case and adopted, by reference, the reasoning in the dissent filed in the Julian case as the majority opinion of the court. The holding in the Houston case was that (1) under Rev.St.1899, Sec. 997, providing that suits against corporations be commenced either in the county where the cause of action accrued or in any county where such corporations had an office or agent, an action for libel could be brought...