Orchard v. Globe Printing Co.

• Decision Date: 29 February 1912
• Citation: 240 Mo. 575,144 S.W. 812
• Parties: ORCHARD v. GLOBE PRINTING CO.
• Court: Missouri Supreme Court

144 S.W. 812

240 Mo. 575

ORCHARD v. GLOBE PRINTING CO.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. LIBEL AND SLANDER (§ 7)—LIBELOUS ARTICLE.

Independent of the question of a crime being charged, an article charging that plaintiff and other self-constituted leaders of a political party entered into a contract with low negroes, whereby they were to try, by way of petition, to get a pardon for a self-confessed negro thief, in return for said negroes supporting a candidate for the Legislature, and that they had filed the petition, which would be acted on after election, charges moral turpitude, and is within Rev. St. 1909, § 4818, declaring the malicious defamation of a person by a publication, tending to expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse, to be a libel.

2. LIBEL AND SLANDER (§ 15)—LIBEL PER SE.

An article may be libelous per se where, were it only spoken, it would not be slanderous per se.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by George C. Orchard against the Globe Printing Company. Demurrer was sustained to the petition, and plaintiff appeals. Reversed and remanded.

Reed, Yates, Mastin & Harvey, for appellant. A. C. Clover, Ernest Green, and D. W. Hill, for respondent.

LAMM, J.

Libel in the Butler circuit court. Suit brought November 3, 1906. Plaintiff was cast on demurrer to his petition in 1908. The alleged libel lies in a circular, an appeal to their fellow Democrats of Butler county by Henry and John Lacks, published by defendant November 8, 1904, and which publication, prefixed by certain headnotes and explanation, was followed by a reference to political conditions in that county; the whole, as set forth in the petition, reading:

                     "Charge Deal to Get Black Vote
                         "Sam Phillips Accused
                "H. and J. Lacks of Poplar Bluff Appeal
                    to Democrats to Withdraw Support
                "Special Dispatch to the Globe Democrat
                        "Poplar Bluff, Mo., November 7
                

"A serious split in the Democratic ranks in Butler county occurred yesterday when the following circular was brought out, signed by Henry and John Lacks, two prominent Democrats with a large following, who are opposing Sam Phillips, the Democratic nominee for representative from this district:

"`Dear Friend: Knowing that you are and always have been a Democrat, with the convictions of right and wrong, and also knowing that you have known us as men of the same convictions, we address you as our personal friend as holding these same views, and also as a straight foward (sic) Democrat. Our campaign this year has been fought in our state against boodle and boodleism, and we know that you want our county politics fought out on the same line. Now what we want to say to you is this: We want you to know that Ed. L. Abington, chairman of the Democratic county committee, and Geo. C. Orchard and others of the same class have gone into a contract, as admitted by them with the knowledge and consent and approval of Sam Phillips, Democratic candidate for representative, with the lower element of the negroes of Poplar Bluff, agreeing with the negroes that they (Abington, Orchard, Stanley, Phillips) will petition the Governor to pardon out of the penitentiary a negro convict who has, before two courts, pleaded that he was guilty of grand larceny, and who is now serving a term for that crime. The promise was made by Orchard, Abington, Phillips, and company to the negroes that Sam Phillips should, in return for this good work, get the negroes' influence and votes in this election. We got word of this basest of criminal boodleism and set out to find the real facts in the case, and upon the closest investigation we were horrified to find that the facts bear out the report as to the agreement and the persons implicated in it. We learned that the petition for the pardon had already been gotten up and signed and handed to the Governor, when he was here about a week or more ago, and that the Governor now has the petition, and that he would act upon it immediately after the election. When the leaders in this disreputable combine found that we had learned of their unlawful and unwholly (sic) agreement, they sent word to Henry Lacks by Bert Stanley, saying that Orchard had done all this, and that he did it to get the Republican (black, we suppose) votes. We know that Orchard was implicated already, but we want you to know that there are others implicated as well as Orchard. When we learned of this corrupt agreement we endeavored to see Sam Phillips and ascertain his connection therewith. He was then out of town, but on returning in the evening and being told of the disclosure in a bunch of this combine, with some other good men, brazenly admitted that while he was not sure that he had signed the petition, he would do so if necessary, and that he would do all in his power to get the negro pardoned. We have these facts from several reliable sources, and know them to be true. The brother of the negro himself said he had such a promise. We sent a message to Prosecuting Attorney Price Stone of Jefferson City asking him to call on the Governor and telephone the names on the petition. This he could not do, as he said the petition had not been filed and that the Governor had the same with him in St. Louis, so that we cannot advertise the petition at this time. Now we want to say to you as our friend, and what we say is friendship for you as well, and as Democrats, that we hope you will not tolerate and submit to this sort of boodleism in Butler county. This negro was a self-admitted criminal, and under the corrupt agreement made by the self-constituted leaders is being sent back to Butler county to prey on the law-abiding public in exchange for a few negro votes for Sam Phillips. Is this Democratic? We say, "No." We say it is boodleism and nothing but boodleism. We want to say that we know of no other Democratic candidate that is implicated in this corrupt agreement. We believe there is no other. We are Democrats and are for all other Democratic nominees; but we cannot support Mr. Phillips on account of his part in this corrupt alliance with the low class of the negroes, and we ask you as our friend and as the friend to pure government and honest politics, and as a true and tried Democrat, that you do all you can as Democrat in the face of the facts to keep our party clear of corrupt officials. Yours very truly. [Signed] Henry Lacks. John Lacks.'

"This city is wrought up to fever heat and the outlook at the present time is for a decisive victory for the entire Republican ticket."

The substantive averments of the petition are that defendant publishes a paper called the St. Louis Globe-Democrat, of large circulation in Butler and surrounding counties, and in the state of Missouri where plaintiff is well known, and throughout the United States; that plaintiff had always demeaned himself as an honest and faithful citizen of the state and of Butler county, and was reputed and esteemed among his neighbors and acquantainces a person of good name, fame, and credit. Further (quoting): "And plaintiff alleges that defendant well knowing such fact, and intending wickedly and maliciously to injure plaintiff in his good name, fame, and credit, and to bring him into public hatred, scorn, ridicule, contempt, infamy, and disgrace and to deprive him of the benefits of public confidence, and to cause it to be believed by his neighbors and among good and worthy citizens of the state of Missouri that plaintiff had been guilty of corrupt, dishonest, and dishonorable and criminal conduct in and about the soliciting, procuring, and obtaining votes for and upon behalf of one Sam Phillips, who was the regularly and lawfully nominated candidate for the office of Representative in the Lower House of the General Assembly of the state of Missouri, to be voted for as such at a regular and legal state and county election to be held in the county of Butler and state of Missouri on the 8th day of November, 1904, and in order to cause it to be believed by said hereinbefore mentioned persons that the plaintiff had been guilty of criminal conduct and practices, and of boodleism and bribery in order to induce qualified voters at such election to vote for said Sam Phillips as and for said office, and in order to cause it to be believed by said persons hereinbefore mentioned and the public generally that the plaintiff had been guilty of a violation of the criminal practice act and laws of the state of Missouri then in force pertaining to elections, and had been guilty of the crime of bribery by directly or indirectly giving, offering, promising to procure, or endeavoring to procure a valuable consideration (and an award) (sic) to or for legally qualified voters at said election so to be held as aforesaid, in order to induce said voters to vote for the said Sam Phillips for said office of Representative or member of the General Assembly of the state of Missouri, and intending to vex, oppress, impoverish and wholly ruin the plaintiff did, on the 8th day of November, 1904, in the newspaper known as St. Louis Globe-Democrat, publish of and concerning the plaintiff a certain false, wicked, malicious, defamatory, and libelous article, which said article was thereafter by the defendant wickedly published and circulated, to wit, to the number of more than 100,000 copies throughout the county of Butler in said state and throughout the entire state of Missouri, and throughout the United States generally as follows, to wit:" (Here follows the publication hereinbefore set forth.)

The further allegations are that the statements made in the circular were well known by defendant to be absolutely false and untrue; that they were published with the malicious and express purpose of defaming and injuring plaintiff; that the Globe-Democrat is generally considered of great...