Morris v. Sailer

• Decision Date: 30 January 1911
• Parties: J. FRANK MORRIS, Appellant, v. JOSEPH SAILER, Respondent
• Court: Kansas Court of Appeals

134 S.W. 98

154 Mo.App. 305

J. FRANK MORRIS, Appellant, v. JOSEPH SAILER, Respondent

Court of Appeals of Missouri, Kansas City

January 30, 1911

Appeal from Cole Circuit Court.--Hon. W. H. Martin, Judge.

Judgment reversed and cause remanded.

Silver & Dumm for appellant.

(1) It is sufficient to make a written publication libelous and actionable per se that it is false and tends to expose one to public hatred, contempt and ridicule, or to blacken his reputation. Nelson v. Musgrave, 10 Mo. 648; Price v. Whitely, 50 Mo. 439; McGinnis v. Geo Knapp & Co., 109 Mo. 131; Ukman v. Daily Record, 189 Mo. 378; Manget v. O'Neill, 51 Mo.App. 26. (2) A newspaper is responsible for what it publishes the same as an individual. Johnson v Post-Dispatch Co., 65 Mo. 539; Arnold v Star-Sayings Co., 76 Mo.App. 159; State, etc., v. Sheppard, 177 Mo. 244. (3) An article libelous per se is presumed to be false and published without sufficient excuse until the contrary is shown. Russell v. Anthony, 21 Kan. 451; Holmes v Clisby, 121 Ga. 241; McIntyre v. Bransford, 17 S.W. 359. (4) When the publication is libelous per se, its falsity and defendant's malice are presumed. Brown v. Knapp, 213 Mo. 655; Thomas v. Bowen, 29 Ore. 258; Sander v. Jones, 13 N.D. 535; Morse v. Printing Co., 124 Iowa 707.

Irwin & Calfee for respondent.

(1) While it is true that in case of a prosecution for libel the jury are the judges of both the law and the fact, it has never been understood that it was their duty or their province to pass upon the pleadings in the case. Military Academy v. Gaiser, 125 Mo. 527. (2) But nowhere is it intimated in the opinion of this court that the case ought to have gone to the jury upon the question as to whether or not the petition stated a good cause of action. If this contention is correct the judge of the court is but a mere figurehead, a useless and unnecessary ornament in the trial of such cases. We are unable to give our assent to this contention. Military Academy v. Gaiser, 125 Mo. 527; McGinnis v. Knapp, 109 Mo. 131. (3) "Whether the alleged libelous words are capable of the construction contended for (by the innuendo), is a question of law for the court." Richardson v. Thorpe, 73 N.H. 532; 18 Am. and Eng. Ency. Law (2 Ed.), f. p. 994; Gaither v. Advertising Co., 102 Ala. 458. It is for the court to decide whether the publication is capable of the meaning ascribed to it by the innuendo, and for the jury to decide whether such meaning is truly ascribed. 2 Greenleaf's Ev. (16 Ed.), sec. 417, note 2; Townsend on Libel and Slander, sec. 284. "The correct rule in construing words seems to be that they are to be taken not in mitiori sensus, but in their fair English meaning. That if the meaning is fairly ambiguous and one allowable meaning is libelous, the case may go to the jury. If, however, the meaning is unambiguous and will not reasonably admit of a libelous construction, the question is for the court." Ukman v. Daily Record Co., 189 Mo. 394; Branch v. Knapp & Co., 222 Mo. 586. (4) "It is the duty of the court to refuse to allow a witness, in the trial of the cause, to testify as to his understanding of the article, for the reason that the article published must speak for itself." Branch v. Knapp & Co., 222 Mo. 580. "The court held the article to be plain and unambiguous and was, therefore, bound to declare its meaning as a matter of law." Branch v. Knapp & Co., 222 Mo. 580; Heller v. Pulitzer Pub. Co., 153 Mo. 205; Ukman v. Daily Record Co., 189 Mo. 378; Massey v. Tingle, 29 Mo. 437; Harrison v. Hance, 37 Mo. 185.

OPINION

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 one thousand 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., 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 A. 580; Sanderson v. Caldwell, 45 N.Y. 398; Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788; Sharpe v. Larson, 67 Minn. 428, 70 N.W. 1.] "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.] If the words are capable of a libelous meaning, "however improbable it may appear, the jury should say whether they may be so understood." [Morrison v. Smith, 177 N.Y. 366, 69 N.E. 725.]

In the light of the law, what ought a court to say of the words published by defendant? The publication stated that plaintiff had been an editor of a paper and through his paper had advocated an increase in telephone rates. That he could not escape responsibility for that by saying he merely sold space in his paper, "for an editor who barters his space and advocates an unrighteous cause will sell his influence at the first opportunity." Keeping within the bounds of reason, can any one say that such language is incapable of a libelous meaning,--is incapable of interpretation, by the readers of the paper,--that plaintiff's influence, as a city councilman, would be for sale? It seems to us it would be fairer to assert that such words, in the circumstances in which they were published, come nearer being incapable of an innocent meaning than a libelous one. There is enough in the words accompanying those just quoted to prevent our saying they are libelous, as a matter of law, but we do say, that giving defendant the benefit of an interpretation influenced by the entire publication, they have a stronger tendency to show defendant to be guilty of libel than innocent of it.

But conceding that defendant really did not intend to charge libelous matter, that would not excuse him. "Want of actual intent to villify is no excuse." [Hallam v. Post Pub. Co., 55 F. 456.] For, "a sane man is presumed to intend the natural and necessary consequences of his act, whether that act be a publication or any other act." [Wynne v. Parsons, 57 Conn. 73, 17 A. 362; 18 Am. and Eng. Ency. Law (2 Ed.), 994.] The question is, in what sense the readers understood it. [Caruth v. Richeson, 96 Mo. 186, 190, 9 S.W. 633.] The words must be understood by the court in the same sense the rest of mankind would understand them. [McGinnis v. Knapp & Co., 109 Mo. 131, 140, 141, 18 S.W. 1134.] An innocent intention will not overcome an...