Merriam v. Star-Chronicle Pub. Co.

• Decision Date: 18 September 1934
• Docket Number: 32103
• Citation: 74 S.W.2d 592,335 Mo. 937
• Parties: May Merriam, Appellant, v. Star-Chronicle Publishing Company, a Corporation
• Court: Missouri Supreme Court

74 S.W.2d 592

335 Mo. 937

May Merriam, Appellant, v. Star-Chronicle Publishing Company, a Corporation

No. 32103

Supreme Court of Missouri

September 18, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Earl M. Pirkey for appellant.

Plaintiff's Instruction 1 was the general instruction covering the whole case. The instruction is in approved form for a general instruction in a case of this kind. Plaintiff was entitled to have her theory of the case presented to the jury. Da Pron v. Neu, 43 S.W.2d 917; Harris v. Railroad Assn., 203 Mo.App. 324; Northam v. United Rys Co., 176 S.W. 227. Therefore the refusal of plaintiff's general instruction necessitates a new trial.

Green Henry & Remmers for respondent.

(1) The defendant's demurrer, at the close of the whole case, should have been sustained: (a) Because the articles complained of showed on their face that they were not published of and concerning plaintiff. Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Diener v. Star-Chronicle Pub. Co., 232 Mo. 416; Farbenfabriken v. Beringer, 158 F. 802; Ellis v. Boston Pub. Co., 198 Mass. 538; Flowers v. Smith, 214 Mo. 98; Ogle v. Sidell, 149 S.W. 973; Conran v. Fenn, 140 S.W. 84; Lewis Publishing Co. v. Rural Pub. Co., 181 S.W. 106; Campbell v. Post Pub. Co., 20 P.2d 1063; Owens v. Clark, 6 P.2d 755; Bearch v. Bass, 88 Me. 521. (b) Because it appears from plaintiff's evidence that the facts stated in the articles complained of were true in substance. Phillips v. Pulitzer Pub. Co., 238 S.W. 129. (c) Because there was no evidence of actual malice in the case and the articles complained of were qualifiedly privileged. It thus became a matter of law for the court. Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Cook v. Pulitzer Pub. Co., 241 Mo. 326; McClung v. Pulitzer Pub. Co., 279 Mo. 370; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Branch v. Knapp, 222 Mo. 580; State ex rel. Zorn v. Cox, 298 S.W. 837; Garey v. Jackson, 193 S.W. 920; Lee v. Fuetterer, 23 S.W.2d 45; Reese v. Fife, 279 S.W. 415; Brown v. Globe, 213 Mo. 611.

OPINION

Atwood, P. J.

This is an action for libel in which plaintiff sought judgment for $ 50,000 actual damages and $ 50,000 punitive damages. The case was tried to a jury and resulted in a verdict for defendant. From the judgment rendered thereon plaintiff has appealed.

Plaintiff, May Merriam, was superintendent of the House of Detention, or what is known as the Children's Building in St. Louis, Missouri, where neglected and delinquent children were restrained and cared for while awaiting trial or other lawful disposition. Defendant, Star-Chronicle Publishing Company, a corporation, is alleged, in plaintiff's petition upon which the case was tried, to have published five articles forming a connected story concerning said institution and containing certain false, defamatory and libelous articles of and concerning said institution and plaintiff. It is further alleged in plaintiff's petition that "said publications were likely to and did raise the inference and communicated to the public the ideas and statements that the plaintiff was incompetent and unfit to be Superintendent of said Institution and that she was morally unfit to hold said position and to have charge of said Institution and that she had neglected or willfully failed to do her duty in such position and that said Institution was incompetently managed by plaintiff and that persons who were put in said Home were injured and degraded and ruined or partly ruined morally and that plaintiff was responsible for the same:

"That such publication was likely to and did provoke plaintiff to wrath and expose her to public contempt and ridicule and hatred and gossip and execration and deprive her of the benefit and confidence of others and of social intercourse and said publication was likely to and did greatly damage the good name and reputation of plaintiff and injured her standing and reputation as Superintendent and cause her great mental pain and suffering."

In its answer defendant admits the publication of said articles; specifically denies that they or any of them are false, that they are defamatory or libelous as to plaintiff, that defendant published them on account of any willful or malicious intention to injure plaintiff, that they have damaged plaintiff in any sum or amount whatsoever; and generally "denies each and every other allegation in said amended petition contained."

For further answer and defense defendant alleged that "the articles referred to in plaintiff's petition were parts of a series of articles published by this defendant concerning the St. Louis House of Detention for minor children for the purpose of calling public attention to the unsatisfactory housing conditions at said institution, to its being overcrowded, to the lack of room for proper separation and segregation of the children confined therein, and the insufficient number of adult attendants and guards provided by the city for said institution.

"Defendant further says that said House of Detention is a public institution of the City of St. Louis and the care, character and proper separation and segregation of the poor and unfortunate children confined therein were and are matters of the highest public interest and concern to the people of St. Louis and it was and is the duty of defendant as a public journalist to keep the public informed of conditions existing in said public institution and to urge the correction of bad conditions.

"Defendant further states that prior to the publications complained of four grand juries of the City of St. Louis had made public reports criticizing the overcrowded conditions in said institution, the lack of space for proper segregation, etc., and had recommended the correction of these conditions, and resolutions were then pending in the City Council looking to the correction of said conditions.

"Defendant further says the articles complained of by plaintiff were published by it in good faith, without malice toward plaintiff, for the purpose of calling public attention to said unsatisfactory conditions and obtaining a correction thereof, and said articles were and are therefore privileged in law."

For further answer and defense defendant says that the statements contained in said articles complained of were and are substantially true, and that taken as a whole, as they should be, the entire series of articles published by defendants are not libelous of plaintiff. Defendant further says that "said articles are based upon grand jury reports of investigations found by them, reports of Judge Granville Hogan, Judge M. Hartmann and Judge Robert Hall as to conditions at said institution, which reports were relied upon by defendant in making said publications."

Plaintiff's reply was in the nature of a general denial.

Appellant presents nineteen assignments of error. Respondent replies to each of them but at the same time vigorously insists that its demurrer at the close of the whole case should have been sustained. We shall first consider the court's order overruling this demurrer.

It will be observed that defendant pleaded both qualified privilege and justification in its answer, that is, that the articles complained of related to matters of public interest concerning which it was defendant's duty to keep the public informed and were published in good faith without malice toward plaintiff, and that the statements therein contained and complained of were and are substantially true.

The alleged defamatory matter is thus pleaded in plaintiff's petition:

"That said article published in said paper on June 19, 1929 contains the following false, defamatory and libelous article of and concerning said Institution and plaintiff: to-wit:

"GIRLS OF SIXTEEN DEFY AUTHORITIES TO MAKE THEM TELL WHO IS RESPONSIBLE FOR THEIR PLIGHT.

"Tonight, the boy made homeless by abandonment or the divorce court may be forced in that refuge, to share a narrow iron cot, cramped quarters for one restless child, with a vicious young bandit awaiting transfer to the State Reformatory or, if it be a girl, her bed companion for the night may be a dissolute woman of the streets, a petty thief or a hardened shoplifter.

"That said article published in said paper on June 20, 1929, contains the following false, defamatory and libelous article of and concerning said Institution and plaintiff to-wit:

"Yesterday The Star printed the first article resulting from an investigation by this newspaper of conditions past and present in the home. Evidence was reviewed of the physical and moral vileness of the place, and the inadequacy of the staff in charge.

"Today The Star sheds more light on this subject by presenting the cases of inmates or former inmates within recent years. Here are typical examples of what has gone on in that place which are matters of record:

"Then said article sets out pretended instances of depravity:

"That said article published in said paper on June 21, 1929, contains the following false, defamatory and libelous article of and concerning said Institution and plaintiff to-wit:

"The only bright side to the detention home picture is the effort of the Board of Education to provide some educational vocational and recreational advantages for the inmates. A staff of teachers under the direction of Miss Bertha Hensel is maintained in the home and the expense is borne by the school fund. These teachers attempt, as best they can, to instill some rediments of education into the children and to occupy their daylight hours. To offset the lack of segregation facilities, the teachers bring some of the smaller boys from the third to the second floor and put them in classes with the girls. There have...