Sotham v. Drovers Telegram Co.

• Citation: 144 S.W. 428,239 Mo. 606
• Parties: SOTHAM v. DROVERS TELEGRAM CO.
• Decision Date: 06 February 1912
• Court: Missouri Supreme Court

144 S.W. 428

239 Mo. 606

SOTHAM v. DROVERS TELEGRAM CO.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

1. APPEAL AND ERROR (§ 273)—QUESTIONS REVIEWABLE—EXCEPTIONS.

Where the trial court by one order overrules two motions, a single exception thereto is sufficient to require a review on appeal.

2. APPEAL AND ERROR (§§ 518, 285)—QUESTIONS REVIEWABLE—RULINGS ON PLEADINGS.

The overruling or sustaining of motions to strike out allegations in a pleading will not be

reviewed on appeal where the motions are not incorporated in the bill of exceptions or made a ground of motion for new trial.

3. LIBEL AND SLANDER (§ 81)—PLEADINGS— REQUISITES—INDUCEMENT.

Where an innuendo is necessary to show the defamatory sense in which the language of an alleged libel is used, the petition must allege, by way of inducement, facts to support the meaning ascribed by the innuendo.

4. LIBEL AND SLANDER (§§ 1½, 16)—LIBELOUS PUBLICATION—STATUTES—"LIBEL."

Rev. St. 1909, § 4818, defining a libel as the malicious defamation of a person by printing so as to expose him to public hatred, contempt, or ridicule, though a part of the Criminal Code, is applicable to civil actions, and, under it, a newspaper article stating that plaintiff was served with a summons in an alleged fraudulent cattle transaction, and that he had taken advantage of the bankruptcy law to escape liability, is libelous per se.

For other definitions, see Words and Phrases, vol. 5, pp. 4116-4125.]

5. LIBEL AND SLANDER (§§ 81, 86)—PLEADING —INDUCEMENT—INNUENDO.

Where the publication complained of is libelous per se, allegations of extrinsic facts in the complaint as an inducement or innuendo are unnecessary and may be treated as surplusage.

6. LIBEL AND SLANDER (§ 100)—EVIDENCE— ISSUES.

Where a newspaper article, complained of as libelous, stated that plaintiff was served with a summons in a fraudulent cattle transaction, and that he had taken advantage of the bankruptcy law, and defendant alleged the truth of the publication, and plaintiff replied by a general denial, it was competent for plaintiff to show that his bankruptcy was the result of causes beyond his control and was not resorted to to defraud his creditors.

7. LIBEL AND SLANDER (§ 103)—EVIDENCE— REPUTATION OF PLAINTIFF.

The general character of plaintiff, suing for a libel, can only be assailed or established by proof of general reputation.

8. LIBEL AND SLANDER (§ 107)—FINANCIAL AND SOCIAL STANDING OF PARTIES—EVIDENCE—ADMISSIBILITY.

Financial and social standing of plaintiff and defendant in an action for libel may be proved on the question of damages.

9. LIBEL AND SLANDER (§ 110)—FINANCIAL AND SOCIAL STANDING OF PARTIES—EVIDENCE—ADMISSIBILITY.

Where in an action for libel, based on a publication charging plaintiff with a fraudulent transaction and his resort to bankruptcy to escape liability, defendant alleged the truth of the publication and plaintiff replied by a general denial, evidence of a testimonial sale of property by neighbors for the benefit of plaintiff, shortly after he was adjudged a bankrupt, was inadmissible on the issue of justification or on the issue of plaintiff's character.

10. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Where in an action for libel, based on a newspaper article charging plaintiff with a fraudulent cattle transaction and with a resort to bankruptcy, defendant relied on the truth of the publication and there was much testimony on the issue of plaintiff's character and his standing in the community, the error in admitting evidence of a testimonial sale by plaintiff's neighbors for the benefit of plaintiff, shortly after he was adjudged a bankrupt, was not prejudicial to defendant.

11. LIBEL AND SLANDER (§ 123)—LIBELOUS PUBLICATION—QUESTION FOR JURY.

Where the publication complained of was libelous per se and the evidence was conflicting on the issue of the truth of the publication, the case was for the jury both as to the law and the facts.

12. LIBEL AND SLANDER (§ 124)—LIBEL PERSE—INSTRUCTIONS.

An instruction, in an action for libel based on a newspaper article libelous per se, which defines libel in accordance with the statute and which states that if the jury find that the article falls within the definition the article is libelous is not objectionable as ignoring the issue as to the truth of the publication raised by the answer, since the Constitution and statute provide that the truth may be given in evidence, but only when pleaded as an affirmative defense.

13. LIBEL AND SLANDER (§ 100)—JUSTIFICATION.

A defendant in an action for libel who pleads justification must prove the truth of all the statements in the publication, and, where he fails to prove the truth as to any one charge which is libelous, he fails to sustain the plea.

14. LIBEL AND SLANDER (§ 101)—BURDEN OF PROOF—ISSUES.

Where in an action for libel, based on a publication libelous per se, defendant alleged the truth of the publication and plaintiff pleaded a general denial, the burden of proving the truth of the publication rested on defendant.

15. APPEAL AND ERROR (§ 1140)—DAMAGES —EXCESSIVE DAMAGES.

The amount of the verdict in libel is peculiarly for the jury, yet where the verdict is excessive, but it does not appear that the jury were actuated by passion or prejudice, the judgment will be affirmed but on condition of a remittitur.

16. LIBEL AND SLANDER (§ 121)—DAMAGES —EXCESSIVE DAMAGES.

In an action for libel based on a publication charging plaintiff with a fraudulent cattle transaction and a resort to bankruptcy, the evidence showed that plaintiff had come to the state from a sister state about 13 years before his bankruptcy; that he left debts unpaid in the sister state; that he engaged extensively in business and borrowed much capital; that shortly before his bankruptcy he sought a letter from a banker showing his financial standing to be good; that when he failed his liabilities greatly exceeded his assets; that he claimed all of his exemptions; that his neighbors gave him a testimonial sale; that he then moved to another state where he engaged in business after which the libel complained of was published. Held, that a verdict for $10,000 was excessive and must be reduced to $6,000.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Thomas F. B. Sotham against the Drovers Telegram Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

Leslie J. Lyons (Scott J. Miller, on the brief), for appellant. Henry L. Jost and Hunt C. Moore, for respondent.

KENNISH, J.

This action for libel was brought in the circuit court of Jackson county by respondent, Thomas F. B. Sotham, against the Drovers Telegram Company, a corporation, the owner and publisher of the "Daily Drovers Telegram," a Kansas City newspaper in which the alleged libelous article appeared. Upon a trial the jury returned a verdict in favor of plaintiff, awarding compensatory damages in the sum of $10,000, and the defendant appealed to this court. The pleadings are of too great length to be set out in this opinion, and we shall state only the substance thereof.

The amended petition, on which the case was tried, was in one count, and alleged as inducement that plaintiff had been engaged in the business of breeding and dealing in Hereford cattle and fine stock and was widely known throughout the country in connection with such business; that at the time of the publication of the alleged libel, and for three years immediately before that date, he was engaged in such business and resided at Kankakee, Ill., but that for many years prior thereto he had resided at and was engaged in the same business at Chillicothe, this state. The petition then alleged the publication of the false, malicious, and defamatory article of and concerning the plaintiff in defendant's said newspaper, on the 7th day of February, 1906, and set out the publication as follows:

"Honesty the Best Policy.

"Thomas F. B. Sotham, formerly a prominent breeder of Hereford cattle at Chillicothe, Mo., but who became heavily involved and was forced into bankruptcy and who has since been in the background, came to life again last week. His appearance was scheduled at a meeting of the State Hereford Breeders' Association, in the state house in Indianapolis. He was called upon for a speech. His subject was `Honesty is the Best Policy.' He had hardly warmed up in his remarks and proceeded along this line: `In this business more than any other, honesty is the best policy. There is no other walk in life where strict integrity means so much, no other business where any departure from the most rigid probity is so apt to return upon the offender at an inopportune moment,' when a deputy sheriff served him with a summons to answer a civil action, brought by Clem Graves to recover $10,000 damages arising from an alleged fraudulent cattle transaction.

"Graves, who is prominently identified with the Hereford breeding industry, was present at the meeting. In his bill of complaint he alleges that in 1904 he advised Sotham to buy the E. B. Martindale herd of Hereford cattle. Sotham claimed that he was worth $100,000. Sotham purchased the herd in question for $10,000 and Graves went his security. Later Martindale learned that Sotham was heavily involved and was converting the cattle into cash. He instituted attachment proceedings, but Sotham took advantage of the bankruptcy Iaws and his property is now being liquidated. Graves further asserts that less than $2,000 has been paid to Martindale, and he is being held responsible for the $8,000 balance. But Mr. Sotham meant what he said, and it was a wise statement just the same.

"A man once lived, honored and respected, in Chillicothe who couldn't buy a bar of five-cent soap in the town today, without paying cash. Mr. Sotham likely had this offender in mind while making his talk."

The alleged libel, as above set forth, is followed...