Morton v. Hearst Corp.

• Decision Date: 15 August 1989
• Docket Number: No. WD,WD
• Citation: 779 S.W.2d 268
• Parties: David MORTON, Plaintiff-Appellant, v. The HEARST CORPORATION, et al., Defendants-Respondents. 40889.
• Court: Missouri Court of Appeals

Page 268

779 S.W.2d 268

David MORTON, Plaintiff-Appellant, v. The HEARST CORPORATION, et al., Defendants-Respondents.

No. WD 40889.

Missouri Court of Appeals,

Western District.

Aug. 15, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 31, 1989.

Dennis E. Egan, Bert S. Braud (argued), Kansas City, for plaintiff-appellant.

Donald W. Giffin (argued) and Mark P. Johnson, for defendant Hearst Corp.

Bernard J. Rhodes, for defendant Kansas City Business Journal.

Before NUGENT, C.J., CLARK and LOWENSTEIN, JJ.

NUGENT, Chief Judge.

Plaintiff David Morton appeals from the trial court's judgments dismissing his claim for libel and directing a verdict for the various defendants. He argues on appeal that the court improperly dismissed his libel claim against defendants The Kansas City Business Journal (Business Journal) and Michael Russell; that it improperly directed a verdict in favor of the defendants Hearst Corporation and Michael Sullivan on his claim for tortious interference with his employment contract; and that the court improperly directed a verdict in favor of the Business Journal and Mr. Russell against the plaintiff's claim for breach of the implied covenant of good faith in his employment contract. We Affirm.

In determining whether the plaintiff made a submissible case, we will view the evidence in the light most favorable to his claims, giving him the benefit of all of the inferences that we may reasonably draw from that evidence. Minnesota Mining and Manufacturing Co. v. Williamson, 675 S.W.2d 951, 953 (Mo.App.1984). We may not, however, infer a fact essential to the claim's submissibility unless a substantial evidentiary basis supports that inference. Id. Some of the evidence that came into this case could properly be admitted against only one group of the defendants. ¹ Accordingly, in determining the sufficiency of the evidence to support the claim against each defendant, we will consider only that evidence properly admissible against that party.

This lawsuit arises from events during and shortly after Mr. Morton's tenure as a radio and television reporter for the Business Journal. His position with the Business Journal arose out of arrangements the Business Journal had made with KMBC-TV (Channel 9) and KCMO radio. Defendant Russell serves as the president of the Business Journal and defendant Hearst Corporation owns KMBC. Defendant Sullivan served as KMBC's news director at the time most of the events leading to this lawsuit occurred. KCMO is not a party to this lawsuit.

Under those arrangements, the Business Journal agreed to supply the broadcast companies with a reporter for business news and to pay the reporter's salary for his appearances on each station. In return, KCMO radio supplied the Journal with air time and commercial spots. The television station did not compensate the Business Journal for its services, but the Journal stood to benefit from the exposure it received: its logo appeared behind Mr. Morton during his television reports.

Before representatives of the Business Journal contacted Mr. Morton, he worked as a news announcer for KMBZ radio station and taught school for the Kansas City school district. He agreed to leave those jobs to take the position as a radio and television reporter for the Business Journal. His initial one-year contract called for a $52,000 salary, plus wardrobe and car expense allowances. He had questioned the thirty-day termination clause in the Business Journal's original offer, and the Journal agreed to termination only upon sixty days notice.

Following his first year of service, the Business Journal offered to renew Mr. Morton's contract with a raise in pay. He told them that he would prefer to extend the contract for two years instead of one and that he was willing to work for a smaller salary in return for the greater security. The parties agreed to a two-year contract at a salary of $56,200 plus expense allowances and a clause providing for termination by either party upon sixty days notice.

Mr. Morton's reports drew a favorable response. He received complimentary letters from listeners and praise from his associates and his employer. The primary negative aspect of his job performance involves a dispute he had with defendant Sullivan, KMBC's news director. On that occasion scheduling difficulties prevented his completion of a report in time for the news broadcast. Mr. Morton objected when Mr. Sullivan, rather than allowing him to present a partial report, directed him to write the story for the KMBC anchorman to deliver. Mr. Morton explained that he sought to protect the Business Journal's interest in receiving credit for the story. The plaintiff's objections and his later complaint to Mr. Russell, president of the Journal, about the incident irritated Mr. Sullivan. They did not speak from that day until after the plaintiff's dismissal twelve days later.

Mr. Morton's dismissal followed a meeting between Mr. Russell and Paul Dinovitz, the newly appointed general manager of KMBC. Mr. Dinovitz had determined that large numbers of individually reported segments detracted from the newscasts. He also thought that devoting air time to a competing news organization (the Business Journal) did not serve the station's best interests. Before his meeting with Mr. Russell, Mr. Dinovitz had already removed several other segments from the newscast. At that time only the Business Journal report and Walt Bodine's segment remained.

Following the meeting, Mr. Russell told the plaintiff that he would pay his salary for the next sixty days but that he no longer required the plaintiff's services. Mr. Morton asked for and received his severance pay in a lump sum. Mr. Russell agreed to allow Mr. Morton to seek a similar arrangement with other television and radio stations, but informed him that he would pay no more than $12,000 for such an arrangement. He also agreed to allow Mr. Morton to "maintain his visibility" in the broadcast community by continuing to deliver reports on KCMO radio. Channel 9 circulated a memo explaining that Mr. Morton would no longer deliver the Business Journal reports but that the station would maintain a relationship with the Business Journal.

Two articles appeared in The Kansas City Star describing the end of Mr. Morton's relationship with the Business Journal and Channel 9. Those articles attributed a statement to Mr. Russell that he had fired Mr. Morton at KMBC's behest. It also quoted Mr. Russell as saying that the plaintiff had been unable to arrange a similar deal with other television stations because "they didn't want Morton's style of reporting."

Mr. Morton then filed his petition, naming the Business Journal, the Hearst Corporation, Mr. Russell, and Mr. Sullivan as defendants, and seeking damages for tortious interference with contractual relations (Count I), libel (Count II), civil conspiracy (Count III), and breach of his employment contract (Count IV). The court dismissed Court II, the libel claim, finding that the plaintiff had failed to state a cause of action for either libel per se or libel per quod. Mr. Morton amended his petition, asserting that defendant Russell's statements had caused him to lose opportunities for similar employment. The court dismissed the amended Count II, finding that it had similarly failed to state a claim. The remaining counts went to trial, and at the close of the plaintiff's evidence the court directed a verdict in favor of the defendants on all of the counts.

Mr. Morton now appeals from portions of the trial court's judgment. He argues on appeal that the trial court improperly dismissed his libel claim against defendants Russell and the Business Journal. He appeals the court's directed verdict against his claim for tortious interference only as to the defendants Hearst Corporation and Sullivan. He also appeals from the directed verdict in favor of the defendants Business Journal and Russell on his claim for breach of the implied covenant of good faith in his employment contract. The plaintiff has apparently abandoned his claim for civil conspiracy. He did not mention it in any of his points on appeal and did not mention it when he summarized his remaining claims in his reply brief. See Rule 84.04.

Mr. Morton argues in his first point that the court improperly dismissed his libel petition. He contends that his initial petition pleaded a cause of action in libel per se in that the defendants' statements imputed a want of skill in his profession. He also asserts that his amended petition properly pleads libel per quod by alleging extrinsic facts that show the false and damaging nature of the defendants' statements and a specific instance in which he suffered monetary damage as a result of those statements. ²

We note initially that the plaintiff's notice of appeal demonstrates an intent to appeal only from the court's order dismissing his original libel claim. In that he has failed to present any error arising from the court's dismissal of Count II of his amended petition. Accordingly, we will not consider that portion of his argument that challenges the court's dismissal of his claim for libel per quod. See Green Hills Production Credit Association v. R & M Porter Farms, Inc., 716 S.W.2d 296, 300 (Mo.App.1986).

Plaintiff's claim that the defendants' statements libeled him per se rests on the assertion that those statements injured him in his profession. To libel him per se the statements must impute a want of knowledge, skill, capacity, or fitness to perform or discharge his duties. Brown v. Kitterman, 443 S.W.2d 146, 154 (Mo.1969). The words must be defamatory in the legal sense. "To defame is to speak evil of one maliciously, to dishonor, to render infamous." Id. at 149, quoting Diener v. Star-Chronicle Publishing Co., 232 Mo. 416, 135 S.W. 6, 11 (1911). The initial determination of whether the statement is capable of a defamatory meaning rests with the court...