McGinnis v. George Knapp & Co.

Decision Date14 March 1892
Citation18 S.W. 1134,109 Mo. 131
PartiesMcGinnis, Appellant, v. George Knapp & Co
CourtMissouri Supreme Court

October, 1891

Appeal from St. Louis City Circuit Court.

Reversed and remanded.

Charles Nagel and Campbell & Ryan for appellant.

(1) The head lines and text of the article published were defamatory and being published of a public officer with reference to his office were libelous per se, and the petition stated a cause of action. Legg v. Dunleavy, 80 Mo. 558; Johnson v. Dispatch Co., 65 Mo. 539; Price v. Whitely, 50 Mo. 439; Kemble v. Sass, 12 Mo. 499; Hermann v. Bradstreet, 19 Mo.App. 227; Randall v. News Ass'n, 44 N.W. 783; Belknap v. Ball, 47 N.W. 674; Bourreseau v. Evening Journal, 63 Mich 425; Catulla v. Kerr, 11 S.W. 1058; Bettner v. Holt, 70 Cal. 270; Larabee v. Tribune Co., 36 Minn. 141; Sanderson v. Caldwell, 45 N.Y. 398; Hand v. Winton, 38 N.Y. 122; Cramer v. Riggs, 17 Wend. 209; Dollaway v. Turrell, 26 Wend. 383; Wilson v. Noonan, 23 Wis. 105; Stone v. Cooper, 2 Denio, 193; Littlejohn v. Greely, 13 Abb. Pr. 41; Thomas v. Croswell, 7 Johns. 264; Negley v. Farrow, 60 Md. 158; Neeb v. Hope, 111 Pa. St. 145; Russell v. Anthony, 21 Kan. 450; Clements v. Lewis, 7 Moore, 200; Odger on Libel, ch. 2, pp. 15, 16, 20, star p. 25. (2) First. The words used should be interpreted as they will naturally be understood by the average reader. Caruth v. Richeson, 96 Mo. 186-190; Johnson v. Dispatch Co., 2 Mo.App. 565; Bettner v. Holt, 70 Cal. 270, 275; Dorland v. Patterson, 23 Wend. 422-424; Weil v. Schmidt, 28 Wis. 137-141; Wilson v. Noonan, 23 Wis. 105; DeMoss v. Haycock, 15 Iowa 149, 150; Hankinson v. Bilby, 16 M. & W. 442; Townshend on Libel, sec. 133; Odger on Libel, ch. 3, pp. 72-75. Second. The intention of the publication is to be interpreted by the jury with reference to the time, place, persons, circumstances and conditions with which it is connected. People v. Croswell, 2 Johns. 337-363; Townshend on Libel, p. 122, note 1; Odger on Libel, star p. 566, p. 436. (3) First. On demurrer the court will not give a mild construction to words, but will, if by any reasonable intendment it can, hold the words actionable. The rule that in actions of libel words must be taken mitiori sensu has been entirely abandoned. Johnson v. Dispatch Co., 2 Mo.App. 545-568, affirmed 65 Mo. 539; Patch v. Tribune Ass'n, 38 Hun (45 S. C. N. Y.) 368; J'Anson v. Stuart, 1 T. R. 648; Teacy v. McKenna, Ir. R. 4 Com. Law, 374; Townshend on Libel, sec. 177, p. 216. Second. The demurrer admitted the malice and falsity of the charge and the meaning supplied by the innuendo. Belknap v. Ball, 47 N.W. 674. (4) The court has the right to instruct the jury that the language used, if unequivocal, is or is not libelous, but, where it is susceptible of either an innocent or defamatory meaning, the question of libel becomes one for the jury. Odger on Libel, ch. 3, pp. 144, 145; Townshend on Libel, secs. 281, 284, 286; Merrill on Newspaper Libel, p. 153; Boogher v. Knapp, 97 Mo. 122-129; Twombly v. Monroe, 136 Mass. 464-469; Bergman v. Jones, 94 N.Y. 51-63; Hays v. Ball, 72 N.Y. 418, 422; Sanderson v. Caldwell, 45 N.Y. 398; Van Akin v. Caler, 48 Barb. 58-60; Dollaway v. Turrell, 26 Wend. 383; Gribble v. Press Co., 34 Minn. 342; Woodberry v. Knickerbocker, 31 Minn. 268-270; Elsworth v. Hays, 37 N.W. 249-252; Belknap v. Ball, 47 N.W. 674, 676; Sullings v. Shakespeare, 46 Mich. 408, 414; Edwards v. Chandler, 14 Mich. 471-477; Beazley v. Reid, 68 Ga. 380-382; Foval v. Hallet, 10 Brad. 265-269. (5) The common-law rule that the question of whether or not ambiguous language is libelous should be submitted to the jury is made imperative in Missouri by our constitution (art. 2, sec. 14), which provides "that in all suits and prosecutions for libel * * * the jury, under the direction of the court, shall determine the law and the fact."

Lubke & Muench also for appellant.

The question in the case at bar is, was the language published by the defendants of and concerning the plaintiff, he being at the time a state senator, and there being pending before the senate a bill to regulate intoxicants, libelous. All the facts recited in the petition were admitted by the defendant's demurrer. This includes an admission that the language in question was published of and concerning plaintiff, and that the language was false, malicious and without justification. R. S. 1879, sec. 1591; Price v. Whitely, 50 Mo. 439; Sass v. Keemle, 12 Mo. 500; Boogher v. Knapp, 97 Mo. 122.

Boyle, Adams & McKeighan for respondents.

(1) The publication complained of does not charge anything of a libelous character. It does not tend to blacken the reputation of the appellant or to expose him to public hatred or contempt, or ridicule, which it must have done in order to be libelous and actionable. Price v. Whitely, 50 Mo. 439. Words are to be construed and taken by the court in the sense in which the words are or would be received by the world. Hudson v. Garner, 22 Mo. 423. When words are indifferent and equally liable to two distinct interpretations, courts construe them in the mildest sense. In mitiori sensu. Johnson v. Dispatch Co., 65 Mo. 540. There must be a specific imputation cast upon the plaintiff, sufficient to injure him. Caruth v. Richeson, 96 Mo. 186. The court must put itself in the position of the hearer or reader, and determine the sense or meaning of the language, according to its natural construction. Townshend on Slander & Libel, sec. 133. If, however, the language is unambiguous, the court must determine without reference to how those to whom it was published understood it, or what was meant by the publication. Townshend on Slander & Libel, sec. 140. The rule is that the natural meaning is to be taken, and if in that view the language will bear a non-actionable meaning equally as well as an actionable one, the courts will adopt the non-actionable. Townshend on Slander & Libel, sec. 142. (2) The pleader cannot by innuendo enlarge or change the sense of the published words. Hudson v. Garner, 22 Mo. 423. An innuendo is merely explanatory of the subject-matter sufficiently explained before; it cannot extend the sense of words beyond their own meaning. Townshend on Libel & Slander [4 Ed.] 161, note 1. It is not the legitimate office of an innuendo to beget an action. Townshend on Libel & Slander, sec. 335.

OPINION

Sherwood, P. J.

Action for libel. The petition in the cause, omitting caption, is as follows: Plaintiff alleges and states that he is a resident and citizen of the city of St. Louis, by occupation an attorney at law, and that he is also a member of the state senate of the state of Missouri, and was such member of said state senate on the twelfth and thirteenth of April, A. D. 1889; that defendant is a corporation, and is engaged in the publication, at said city of St. Louis, of the daily newspaper called The St. Louis Republic, and that defendant was such corporation and published said newspaper on the twelfth and thirteenth of April, A. D. 1889; that, heretofore, on the thirteenth day of April, A. D. 1889, defendant, in the issue of the said newspaper of said date, published of and concerning plaintiff, under the title, "The McGinnis Cohorts," and the further heading, "They Rally 'Round the Brewers' Flag in the Senate," the following language: "The distribution of the $ 50,000 slush fund, sent here by the liquor interest, may enable Senator McGinnis to make good his boast, that he did not care whether the house passed the high-license bill or not, he could defeat it in the senate;" that the said matter so published by defendant was part of a letter purporting to have been written to defendant by its special correspondent at Jefferson City, April 12, 1889; that at said time plaintiff was in attendance at said city of Jefferson, the capital of said state of Missouri, as a member of the state senate, discharging his duties as such; that there was then pending before said state senate a bill entitled, "An act to regulate the sale of intoxicants," the same being substitute for house bills numbers 145, 759, 86, 102, 188, 168, 360 and 245; that, in and by said language hereinbefore set out, defendant charged, and its said special correspondent charged, that plaintiff had been guilty of bribery, or was offering bribes, or was ready to offer bribes to other members of said state senate, to induce them to vote against said bill, or that plaintiff then had knowledge that $ 50,000 had been unlawfully offered or used to induce members of said state senate to vote against said bill, and that plaintiff, having such knowledge, then and there approved of or consented to such unlawful act, and was ready and willing to avail himself thereof in accomplishing the defeat of said bill by said state senate, or that (plaintiff) aided and abetted the said alleged unlawful use of said alleged fund of $ 50,000; that the said language aforesaid was and is libelous; that the same was and is false; that the same was and is malicious; that there was no justification therefor, as defendant and its said correspondent well knew; that plaintiff, on April 15, 1889, demanded of defendant a retraction of the said language and charges therein contained, but the defendant to make such retraction declined; and that, by reason of the premises, plaintiff has been injured and damaged in the sum of $ 50,000, for which and costs he now prays judgment.

The defendant corporation interposed the following demurrer:

"Now comes the said defendant and demurs to the amended petition of said plaintiff, and assigns, as grounds of demurrer thereto, that the alleged publication set out in said petition does not, by any reasonable intendment or construction, charge plaintiff with having been guilty of bribery, or with...

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