May v. Greater Kansas City Dental Soc., No. WD

• Decision Date: 02 November 1993
• Docket Number: No. WD
• Citation: 863 S.W.2d 941
• Parties: Joseph A. MAY, D.D.S. and Glenda S. Scoville, Appellants, v. GREATER KANSAS CITY DENTAL SOCIETY, Robert L. Nelson, D.D.S., et al., Respondents. 47350.
• Court: Missouri Court of Appeals

Page 941

863 S.W.2d 941

Joseph A. MAY, D.D.S. and Glenda S. Scoville, Appellants, v. GREATER KANSAS CITY DENTAL SOCIETY, Robert L. Nelson D.D.S., et al., Respondents.

No. WD 47350.

Missouri Court of Appeals Western District.

Nov. 2, 1993.

Kent Kersten, Kansas City, for appellants.

Eddie Dougherty, Sam Colville, Richard T. Merker, Kansas City, for respondents.

Before SPINDEN, P.J., and FENNER and HANNA, JJ.

HANNA, Judge.

This appeal arises from a six-count petition filed by plaintiff Joseph A. May (May), a practicing dentist, and his wife, plaintiff Glenda Scoville (Scoville), against the Greater Kansas City Dental Society (Dental Society), and defendant Dr. Robert L. Nelson (Nelson), the president of the Dental Society. The trial court dismissed all counts on the defendants' motion to dismiss.

All six counts asserted by plaintiffs May and Scoville arise from the publication of an article in a newsletter written by defendant Nelson. Four counts of the petition are actions on behalf of plaintiff May: libel per se, libel per quod, interference with economic advantage, and directors' negligent supervision of an officer. Plaintiff Scoville alleges two causes of action: intentional infliction of emotional distress and the wrongful death of an unborn child. Both of plaintiff Scoville's claims are based on the miscarriage of a three-month fetus which she alleges occurred after reading the subject article.

In the summer of 1989, the Internal Revenue Service (IRS) mailed an inquiry to several hundred dentists in the Kansas City area seeking information about Dr. May. Specifically, the inquiry requested names of and information about patients whom the various dentists had referred to Dr. May. Dr. Nelson was one of the dentists who received a letter and IRS summons concerning patients he may have referred to Dr. May. That IRS summons was the incentive for his article.

On or about April 1, 1990, Dr. Nelson published an article in The Professional Journal of the Greater Kansas City Dental Society, the Midwestern Dentist, entitled "For Whom the Bell Tolls, or Beware: The G-Man Cometh!" The Midwestern Dentist is a monthly newsletter published by the Dental Society and at the time of the article, Dr. Nelson was the president of the Dental Society. At the time, Dr. May specialized in endodontics.

Although the article does not mention May by name, he claims to be the subject of the article because it contains a reference to an IRS investigation of "one of our profession." He argues that the article contains offensive references to him. The objectionable terms are: "yo-yo," "wacko," "at odds with the federal government," and "axe murderer." Plaintiff May argues that as a result of defendant Nelson's article, he lost patient referrals and eventually, in 1992, closed his dental practice due to a lack of referrals.

Plaintiff Scoville is married to May. Immediately after reading the article, she claims to have suffered extreme emotional distress and trauma. Within two hours after reading the article, she claims to have begun hemorrhaging and within five days, she suffered a miscarriage of her three-month old fetus.

Nine members of the Dental Society's Board of Directors were also sued under a negligent supervision theory. The claim against the Board members was subsequently dismissed by plaintiffs and, therefore, only the Dental Society and Nelson remained as defendants.

The issues were briefed on the defendants' motions to dismiss filed in the trial court. The court sustained the motion and dismissed the plaintiffs' petition holding that the petition failed to state a cause of action. The trial court also overruled the plaintiffs' motion for leave to file a first amended petition. A subsequent motion to reconsider was overruled. This appeal followed.

Our review of the dismissal of plaintiffs' petition is to treat all facts alleged as true and to reverse the trial court's order only if those facts as alleged in the petition would, upon proof, entitle the plaintiffs to relief. Rahm v. Missouri Pub. Serv. Co., 676 S.W.2d 906, 908 (Mo.App.1984). A motion to dismiss is the proper procedural tool to challenge a petition and to obtain a decision as to whether it alleges sufficient facts to constitute a cause of action. Morgan v. Morgan, 555 S.W.2d 378, 380 (Mo.App.1977).

Plaintiffs first two points concern May's claim for libel per se and libel per quod, which we will consider together. The same statements in the newsletter will constitute either libel per quod or libel per se and therefore, are alternate pleadings. Our Supreme Court has recently held that when considering defamation cases, "the old rules of per se and per quod do not apply and plaintiff need only plead and prove the unified defamation elements set out in MAI 23.01(1) and 23.01(2)." Nazeri v. Missouri Valley College, 860 S.W.2d 303, 313 (Mo. banc 1993). The obliteration of this distinction does not interfere with our review of the trial court's ruling. In both of plaintiff May's counts for per se and per quod defamation, he ascribes the common ordinary meaning to the words used, and does not plead extrinsic facts demonstrating that the offending words are something other than their commonly understood meaning. Plaintiff concedes that the words stand by themselves.

Whether words are libelous per se is a question of law which a court may properly decide on a motion to dismiss. Buller v. Pulitzer Publishing Co., 684 S.W.2d 473, 477 (Mo.App.1984). A motion to dismiss the petition for failure to state a claim upon which relief may be granted does not admit the construction of the words pleaded in an innuendo, and whether the alleged libelous words, when given their natural meaning, are capable of the defamatory meaning ascribed to them is a question of law for the court to decide on a motion to dismiss. Brown v. Kitterman, 443 S.W.2d 146, 150 (Mo.1969).

Plaintiff May contends the words libeled him in his professional capacity as a dentist. To libel an individual's professional standing, the words must assign a lack of knowledge, skill, capacity or fitness to perform or discharge his duties. Id. at 154. The article will not be set forth in full as much of it is not pertinent to a resolution of the issues here involved.

In order for the words to be actionable, they must refer to the plaintiff and to be understood by others as referring to the plaintiff. Nordlund v. Consolidated Elec. Co-Op., 289 S.W.2d 93, 95 (Mo.1956); Norris v. Brady, 234 Mo.App. 437, 132 S.W.2d 1059, 1061 (1939); Byrne v. News Corp., 195 Mo.App. 265, 190 S.W. 933, 935 (1916). Therefore, we are concerned first with whether the offensive words are "of and concerning" the plaintiff. New York Times Co. v. Sullivan, 376 U.S. 254, 288-92, 84 S.Ct. 710, 730-33, 11 L.Ed.2d 686 (1964). If some question exists as to whether the offensive words are "of and concerning" the plaintiff, the fact dispute is for the jury. See Hoeffner v. Western Leather Clothing Co., 161 S.W.2d 722, 726-27 (Mo.App.1942). Likewise, if the words are unambiguous as to the person referred to, the issue may be one of law.

In Nelson's article there is no reference to May by name. Although it is not necessary that the defamatory statements refer specifically to the plaintiff by name, it must be shown that the reader reasonably understood the defamatory words to have been directed to plaintiff. Byrne, 190 S.W. at 935. The article commences with a reference to "one of our profession."

Summons:

Some of us in the GKCDS have recently been through some soul searching in response to the above summons ¹ sent out by the IRS. It seems one of our profession is being investigated by the IRS and many of us received a letter earlier last year asking for our cooperation by sending the government names of patients we had referred to this specialist.

May contends he was identified as the subject of the article, at least as to those dentists who received a summons, because he was the subject of the IRS investigation. From the record before us, we conclude that there was no knowledge of any other local dentist under investigation by the IRS during the relevant time period.

Our inquiry is not what the writer intended, but rather whether a person reading the article would reasonably understand the offending words to refer to the plaintiff. Id. All of the offending terms, with the exception of yo-yo, are found in this paragraph:

Do you have to get a consent form for each patient you refer to a specialist that lists all the known dental problems and the possibility the person may be a wacko, or at odds with the federal government or an axe murderer? Should you inform your patient that because he/she has a dental problem, their name may have to be released to a dreaded government agency such as the IRS, OSHA, FTC or some other acronym?

We do not agree with the plaintiff's argument that these terms refer to plaintiff May. A writing claimed to be libelous must be interpreted from its four corners and must be given its ordinary meaning in the plain and popular sense. Swafford v. Miller, 711 S.W.2d 211, 213 (Mo.App.1986). In this case, Nelson has addressed a serious situation presented by the IRS summons sent to various dentists in the area and has asked a rhetorical question of some importance dealing with the government's right to obtain patients' names and patient information. He describes his experience with the IRS as creating a dilemma between his legal obligation to provide the information and a breach of his professional relationship with his patients. The article is written in a humorous vein and responsibly addresses a significant problem that has a basis in fact and it attempts some solutions in the event some governmental agency decides to investigate a member of the profession. The author suggests that such an investigation could innocently befall any dentist and implores that this sort of handiwork is injurious to one's "good...