Morris v. Sailer

• Decision Date: 30 January 1911
• Parties: MORRIS v. SAILER.
• Court: Missouri Court of Appeals

134 S.W. 98

154 Mo. A. 305

MORRIS v. SAILER.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

1. LIBEL AND SLANDER (§ 123) — TRIAL — QUESTIONS FOR JURY — DUTY OF COURT.

Though the jury is the judge both of the law and fact in libel cases, the question whether the matter charged as libel is capable of that interpretation is for the court.

2. LIBEL AND SLANDER (§ 97) — CONSTRUCTION OF LANGUAGE — DEMURRER.

The proper way to raise the question whether matter charged as libel is capable of that interpretation is by demurrer.

3. LIBEL AND SLANDER (§ 123) — MEANING OF PUBLICATION — QUESTION FOR JURY.

Where the words in a publication are susceptible of both a libelous and an innocent meaning, the question how they were used is for the jury.

4. LIBEL AND SLANDER (§§ 19, 123) — LIBELOUS NEWSPAPER ARTICLE — CONSTRUCTION OF WHOLE.

A newspaper article which in commenting on a candidate for alderman advised the voters not to support him because he was for higher telephone rates, and stated he could not escape responsibility by saying that he merely sold space in his newspaper, "for an editor who barters his space and advocates an unrighteous cause will sell his influence at the first opportunity" is capable of a libelous meaning, and a further statement that "therefore we infer he advocated the increase because he believed in it," does not give meaning to the whole publication and make it harmless, for intricacies of language will not allow the libeler to escape, the natural construction and not the ingeniously possible one being the rule, and hence the rest of the publication can only render the meaning ambiguous, and a question for the jury.

5. LIBEL AND SLANDER (§ 2) — JUSTIFICATION — INNOCENT MOTIVE.

The absence of intent to publish a libel is no excuse, for one is presumed to intend the natural consequences of his act.

6. LIBEL AND SLANDER (§ 48) — PRIVILEGE — CANDIDATE FOR OFFICE — NEWSPAPER.

The fact that the one libeled is a candidate for office and the one libeling is a newspaper is no justification; for, while the press can serve a great good by presenting matters of public import, yet it must keep within the limits of the truth.

Appeal from Circuit Court, Cole County; Wm. H. Martin, Judge.

Action by J. Frank Morris against Joseph Sailer. From a judgment for defendant on demurrer to the complaint, plaintiff appeals, Reversed and remanded.

Silver & Dumm, for appellant. Irwin & Calfee, for respondent.

ELLISON, J.

Plaintiff instituted this action by filing a petition charging defendant with libeling him. The latter demurred to the petition on the ground that it did not state a cause of action. The demurrer was sustained by the trial court, and, plaintiff refusing to plead further, judgment was rendered against him and he thereupon appealed.

The petition alleges that on the 4th of April, 1910, defendant was publisher of a newspaper in Jefferson City called the "Daily Post," and on that day plaintiff was a candidate for the office of city councilman for that city from the First ward therein. That late on the evening of the day preceding the election defendant wrongfully, wickedly, and maliciously printed and published of and concerning plaintiff the following false, libelous, and defamatory words:

                         "Elect Kaullen in the First
                 "His Opponent Openly Espoused Cause of
                       Higher Telephone Rates — Only
                 "Safe Way for Citizens of First Ward to
                               Meet Issue
                         "Is to Vote for Peter Kaullen
                

"The people of the First Ward will remember that one of the candidates for alderman in that ward, Frank Morris, was formerly editor of the Tribune, and openly espoused the cause of higher telephone rates through the medium of his paper. Up to the time he went out of business he was heartily advocating an increase in telephone rates. Is he a safe man to clothe with the power to increase rates and fasten the unjust burden upon the people? If he advocated it through the medium of his paper would he not vote for it if in the council? He cannot escape by saying he merely sold space, for an editor who barters his space and advocates an unrighteous cause will sell his influence at the first opportunity, therefore we infer that he advocated the increase because he believed in it, and believing in it we have the right to assume he would vote for such an ordinance had he the opportunity.

"There is but one safe way for the people to meet the issue, and that is by electing Peter Kaullen, whom the people know they can safely trust."

It is then charged that, after printing such matter in his paper, defendant caused 1,000 copies of the paper to be distributed and sold in Jefferson City to the public generally. While in actions for libel the jury, under the direction of the court, are to determine both the law and the fact, yet, if the matters charged as libel are incapable of constituting that offense, it is the province of the court to so declare; and a demurrer is a proper procedure to bring up the question. Diener v. Star-Chronicle Pub. Co. (Mo.) 132 S. W. 1143; Branch v. Knapp & Co., 222 Mo. 580, 596, 121 S. W. 93; Ukman v. Daily Record, 189 Mo. 378, 88 S. W. 60; Heller v. Pulitzer Pub. Co., 153 Mo. 205, 214, 54 S. W. 457. But, if the words are subject to two meanings—one libelous and the other not— it is for the jury to say whether they were used in the sense charged by the plaintiff. Richardson v. Thorpe, 73 N. H. 532, 63 Atl. 580; Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105; Gaither v. Advertiser Co., 102 Ala. 458, 14 South. 788; Sharpe v. Larson, 67 Minn. 428, 70 N. W. 1, 554. "The mere capability of the libelous meaning is all that the court need pass on. Whether such meaning was in fact conveyed to the readers is a jury question." Scofield v. Milwaukee Free Press, 126 Wis. 81, 105 N. W. 227, 2 L. R. A. (N. S.) 691. If the words are capable of a libelous meaning, "however improbable it may appear, the jury should say whether they may be so...