Schnabel v. Taft Broadcasting Co., Inc.

• Decision Date: 07 July 1975
• Docket Number: No. KCD,KCD
• Citation: 525 S.W.2d 819
• Parties: David H. SCHNABEL, Appellant, v. TAFT BROADCASTING COMPANY, INC., a corporation, et al., Respondents. 27310.
• Court: Missouri Court of Appeals

Page 819

525 S.W.2d 819

David H. SCHNABEL, Appellant, v.TAFT BROADCASTING COMPANY, INC., a corporation, et al., Respondents.

No. KCD 27310.

Missouri Court of Appeals, Kansas City District.

July 7, 1975.

Rehearing Denied Aug. 5, 1975.

Max Von Erdmannsdorff, Von Erdmannsdorff & Kuhlman, Howard F. Sachs, Donald W. Giffin, Kansas City, for respondentDavid J. Madison.

Reed O. Gentry, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondent Willard.

John M. Kilroy, Richard W. Noble, Kansas City, for respondentsTaft Broadcasting Company, Inc. and McClay; Shughart, Thomson & Kilroy, Kansas City, of counsel.

Howard F. Sachs, Donald W. Giffin, Kansas City, for respondents Wormington and Bolton and additional attorneys for respondentsTaft Broadcasting Company, Inc. and McClay.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

The plaintiffDavid H. Schnabel brought a petition for actual and punitive damages, framed in two counts, one for champerty and the other for malicious prosecution of a libel action in the courts of Kansas.The defendants moved the dismissal of both counts or for summary judgment.The trial court sustained the motion to dismiss both counts as to all defendants on the asserted ground that both counts failed to state claims for relief and that any claim based upon allegations of malicious prosecution were barred by the one year Kansas statute of limitations, K.S.A. § 60--514, given effect in Missouri by § 516.190, RSMoSupp. 1975, V.A.M.S.The defendantTaft Broadcasting Company asserted the additional ground for dismissal that the claim of plaintiff related to conduct arguably protected or prohibited by the National Labor Relations Act and was therefore pre-empted by the jurisdiction of the National Labor Relations Board.

On a motion to dismiss, the sufficiency of a petition is construed liberally and all facts properly pleaded are taken as true and are accorded every reasonable intendment as a valid statement of a claim.Hall v. Smith, 355 S.W.2d 52, 55(1--5)(Mo.1962).A petition, although imperfectly or defectively stated, will be sustained if the allegations invoke substantial principles of law which may entitle the pleader to relief.Ingalls v. Neufeld, 487 S.W.2d 52, 54(1--4)(Mo.App.1972).If it clearly appears from the face of the pleading that a cause of action is barred by limitations, a motion to dismiss, even without specification of grounds is properly sustained.Household Finance Corporation v. Avery, 476 S.W.2d 165, 168(6)(Mo.App.1972).

Count I of the petition undertakes to plead a cause of action in champerty on these allegations:

The defendantTaft Broadcasting Company, Inc., owned and operated the WDAF radio and television stations in Kansas City, Missouri, and was a party to a collective bargaining agreement with a local of the American Federation of Television and Radio Artists (AFTRA), the bargaining agent for the professional employees of the stations.Prior to and after the October 1, 1965, termination date of the agreement, Taft Broadcasting through Robert J. Wormington and Lewis D. Bolton, managers of the stations, and John L. McClay, Executive Vice-President, negotiated with AFTRA for a new contract.Attorney James R. Willard represented Taft Broadcasting throughout these negotiations.The bargaining proved fruitless, so that the contract was terminated and on December 12 1965, the members of the union went on strike.

The plaintiff Schnabel was employed as the Executive Secretary of the Kansas City local of AFTRA.After commencement of the strike, members of the union undertook to picket the WDAF radio and television facilities and to engage in other activities--including publication of a newsletter--calculated to inform the public, advertisers, consumers, government officials and other unions of the nature of their dispute with the management.

The day following the commencement of the strike, WDAF hired defendantDavid J. Madison and two others to replace members of the AFTRA who were then on strike.In the December 28, 1965 issue of the union newsletter appeared the statement:

DAVID MADISON has an interesting background.His personal life has been so fouled up, the only regular work he seems to be able to find is as a professional strike-breaker.His experience during the METROMEDIA strike apparently has been his only preparation in the broadcasting field.Watching him butcher the television news, or listening to him slaughter the King's English as a DJ makes one wonder how any advertiser could possibly consider their money well spent with DAVE MADISON'delivering the goods'.

When he arrived at the WDAF facilities the next day, Madison was given a copy of the newsletter by the program director of the radio station.Madison was then called to the office of defendant Wormington, station manager for WDAF TV, who discussed the newsletter and any legal remedies available to Madison, and indicated that Madison could retain the labor counsel representing Taft Broadcasting in its dispute with AFTRA to file suit against plaintiff and others for the alleged defamation.The petition then alleged that, during this meeting, Wormington, on behalf of Taft Broadcasting, entered into an agreement with Madison to pay all attorneys fees and costs and expenses of litigation incurred in the suit against plaintiff and other members of AFTRA.The petition alleged that this agreement, which did not obligate Madison to reimburse Taft Broadcasting for any of these outlays was wrongful and champertous.

As suggested by Wormington, Madison met with attorney Willard and, as a result of this conference, filed suit in Johnson County, against plaintiff and twenty-five others, individually and as representatives of the AFTRA class.It was alleged that defendants Willard, Wormington, Bolton and McClay conspired to enter into the champertous agreement on behalf of Taft Broadcasting which thereafter expended sums of money on behalf of Madison in support of his suit.

The petition pleaded that an objective of the conspiracy was to use the lawsuit as a means of bringing pressure to bear upon the plaintiff and AFTRA to terminate the strike.Accordingly, it was alleged that Taft Broadcasting for that purpose sought to obtain from Madison express, written control of the lawsuit, but was refused.Madison was dismissed from employment by Taft Broadcasting on March 25, 1966, and on April 18, 1966, the strike was terminated.Madison, however, continued to prosecute the action against the plaintiff and AFTRA until he voluntarily dismissed the action with prejudice on April 18, 1969

The petition alleged benefit to Taft Broadcasting from the champertous agreement and maintenance of the Madison action by allowing that conspirator the use of the lawsuit to coerce AFTRA to terminate the strike; that defendants Wormington, Bolton and McClay derived benefit through their employment with Taft Broadcasting; that attorney Willard received fees and compensation from the action, and that Madison derived the benefit of a cause of action without risk of expense or loss.

The plaintiff alleged damage from the wrongful acts of the defendants in that the strain of his efforts as Executive Secretary of AFTRA in the defense of the action caused a seizure and physical injury to his person, and alleged the further damage of lost employment because the defense of the lawsuit had depleted the AFTRA funds.

Count II of the petition by reference incorporates the allegations of Count I and further alleges that the defendants, acting through Madison, maliciously conspired to and did file the defamation action against plaintiff with intent to injure him and without cause.The pleading also alleges that the defendants actively encouraged and supported the bringing of the action with the purpose of coercing plaintiff and AFTRA to end the strike; that the action was brought maliciously and without probable cause because the statements made in the newsletter concerning Madison were in fact true and made with a qualified privilege since they were directed at Madison as a public figure.The petition cited the voluntary dismissal of the action by Madison as a termination of the proceedings in favor of the plaintiff.

The validity of Count I as a pleading is to be determined by whether the allegations invoke substantial principles of the law of champerty as to entitle plaintiff to relief.

The doctrines of champerty and maintenance were developed at the common law to 'prevent officious intermeddlers from stirring up strife and contention by vexatious and speculative litigation which would disturb the peace of society, lead to corrupt practices, and prevent the remedial process of the law'.14 C.J.S.Champerty and Maintenance§ 3;Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 748(9--11), 112 S.W.2d 345(banc 1937).Maintenance is defined as 'an officious intermeddling in a suit which in no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it'.Moffett v. Commerce Trust Company, 283 S.W.2d 591, 596(3, 4)(Mo.1955).Champerty, a species of maintenance, consists of an agreement under which a person who has no interest in the suit of another undertakes to maintain or support it at his own expense in exchange for part of the litigated matter in the event of a successful conclusion of the cause.Watkins v. Floyd, 492 S.W.2d 865, 871(3)(Mo.App.1973).As delineated, the law of champerty and maintenance is in force in Missouri (Curry v. Dahlberg, supra, 341 Mo. l.c. 748, 110 S.W.2d 742), and in Kansas as well.Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806, 811(5)(1956).

The respondents do not cavil at these general principles but contend, on the authority of Security Underground Storage, Inc. v. Anderson, 347 F.2d 964(10th Cir.1965), that an action for damages for either maintenance or champerty no longer exists in favor of a...