Sotham v. Drovers Telegram Company

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

144 S.W. 428

239 Mo. 606

THOMAS F. B. SOTHAM v. DROVERS TELEGRAM COMPANY, Appellant

Supreme Court of Missouri, Second Division

February 6, 1912

Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.

Affirmed (conditionally).

Leslie J. Lyons and Scott J. Miller for appellant.

(1) The court erred in overruling defendant's motion to strike out the innuendoes in plaintiff's amended petition. McGinnis v. Knapp & Co., 109 Mo. 139; 18 Am. & Eng. Ency. Law (2 Ed.), p. 974. There is no inducement or colloquium preceding the charge of publication of the article in question, which sets forth facts sufficient to warrant the innuendoes set out in plaintiff's petition. 13 Ency. Pl. & Pr. (2 Ed.), 32; Curry v. Collins, 37 Mo. 329; Dyer v. Morris, 4 Mo. 218; Wood v. Hilbish, 28 Mo.App. 389; Unterberger v. Scharff, 51 Mo.App 110; Christal v. Craig, 80 Mo. 372. (2) The court erred in sustaining plaintiff's motion to strike out parts of the amended answer filed by the defendant. (3) The court should have sustained defendant's objection to the introduction of any evidence at the beginning of the trial because the petition does not state facts sufficient to constitute a cause of action. The article in question is not libelous per se. 18 Am. & Eng. Ency. Law, p. 1085; Rammell v. Otis, 60 Mo. 365; Herman v Bradstreet, 19 Mo.App. 227; Birch v. Benton, 26 Mo. 155; Townshend on Slander & Libel (4 Ed.), p. 157; Odgers on Libel & Slander (2 Ed.), p. 86; Spurlock v. Investment Co., 59 Mo.App. 230; Baldwin v. Walser, 41 Mo.App. 251. (4) The court should not have permitted plaintiff to introduce evidence as to the death of a number of cattle which plaintiff had been showing at the Charleston S. C., Exposition in 1902. This testimony was clearly immaterial, and had nothing to do with the issues involved in the case, and was introduced for the sole purpose of arousing sympathy on the part of the jury for Mr. Sotham, and a specious excuse for his bankruptcy proceedings which were filed late in the fall of 1903. (5) The court erred in permitting testimony to be introduced over the objection of defendant, as to the testimonial sale of cattle given by the citizens of Chillicothe for the plaintiff. Sanford v. Rowley, 93 Mich. 122; 2 Wigmore on Evidence, p. 1959. (6) The court erred in overruling defendant's demurrer in the form of a request for a peremptory instruction at the close of plaintiff's evidence. Plaintiff alleged no special damages, and proved none. In fact, the record shows from Mr. Sotham's own testimony, that his business was more extensive after the publication of this article than it was at any time while he lived at Chillicothe. Inasmuch, therefore, as the article is not libelous per se, it was absolutely essential that special damages must be averred and proved. Julian v. Kansas City Star, 209 Mo. 80. (8) Instruction 1, given at the request of plaintiff, is erroneous because it omits the element of falsity, and because defendant pleaded the truth of the article, and the falsity of it was one of the main issues of the case, and therefore the court in defining libel, should have stated as one of the elements of libel that it must be false before it can be libelous. Stark v. Knapp, 160 Mo. 551; Townshend on Libel and Slander, (4 Ed), p. 213. (9) The court committed error in refusing to give defendant's instruction 3. This instruction requests the court to instruct the jury that plaintiff must prove his case by a preponderance of the evidence, and then defines what the preponderance of the evidence is. This instruction is in the form approved by this court in many cases. Clements v. Maloney, 55 Mo. 357; Lewis v. McDaniel, 82 Mo. 584. (10) The verdict was the result of passion and prejudice, as shown by the excessive amount allowed.

Henry L. Jost and Hunt C. Moore for respondent.

(1) The bill of exceptions does not disclose a proper and sufficient exception on the part of the defendant to the court's action in overruling defendant's motion for a new trial. It made one single exception to two different actions of the court: The action of the court in overruling defendant's motion for a new trial and the court's action in overruling its motion in arrest of judgment. St. Joseph v. Ensworth, 65 Mo. 628; McKee v. Dry Goods Co., 132 S.W. (Mo. App.) 1191. (2) The action of the trial court in overruling defendant's motion to strike out the innuendoes in plaintiff's amended petition is not before this court and will not be reviewed, because it was not preserved by any bill of exceptions and no complaint is made of such action in defendant's motion for a new trial. Coffey v. Carthage, 200 Mo. 629; Smith v Baer, 166 Mo. 401; Davidson v. Real Est. Co., 226 Mo. 36; Railroad v. Wyatt, 223 Mo. 357; Gardner v. Railroad, 223 Mo. 412. Moreover, defendant by answering waived any right to have the motion reviewed. Springfield Engine Co. v. Donovan, 147 Mo. 628; Kansas City ex rel. v. Surety Co., 196 Mo. 300; Brannock v. Railroad, 200 Mo. 567; Kansas City to use v. Yeoman, 213 Mo. 175. (3) The language of the article sued on is libelous per se. Section 4818, R. S. 1909. This statute sweeps down the rule, if it ever existed, which required a libel to charge a crime in order that it should be libelous per se. Any language which may fairly be said to result in the things denounced by the statute is libelous per se. Every libel is libelous per se. Ferguson v. Publishing Co., 72 Mo.App. 465; McGinnis v. Knapp, 109 Mo. 149; Morse v. Times Republican, 124 Iowa 707. The article sued on is libelous per se, because: (a) It directly imputes to plaintiff fraudulent and dishonest conduct in his business as a cattle trader and dealer and in respect to a certain cattle transaction that he had with one Graves. Manget v. O'Neill, 51 Mo.App. 35; Pub. Co. v. Trade Journal, 108 Mo.App. 223; Farley v. Publishing Co., 113 Mo.App. 224; State v. Armstrong, 106 Mo. 416; McGinnis v. Knapp, 109 Mo. 143; Sullivan v. Commission Co., 152 Mo. 268; Townshend on Libel & Slander (4 Ed.), sec. 177; Odgers on Slander & Libel (Bigelow's Ed.), 21; Noeinger v. Vogt, 88 Mo. 593. The defendant had no lawful right to publish in its newspaper the charges of fraud which Graves had made against plaintiff in his petition for damages, the petition having just been filed and no action having been taken thereon by the court; and in publishing those charges of fraud against plaintiff in its newspaper, defendant is answerable to plaintiff in damages unless defendant prove the charges so made against plaintiff to be true. Barber v. Dispatch Co., 3 Mo.App. 377; Meriwether v. Knapp & Co., 211 Mo. 219; Nixon v. Printing Co., 101 Minn. 309, 21 L.R.A. (N.S.) 188; Park v. Free Press Co., 72 Mich. 560, 1 L.R.A. 599; Am. Pub. Co. v. Gamble, 115 Tenn. 666; Cowley v. Pulsifer, 137 Mass. 392. (b) The article is libelous per se because in addition to the direct charge of fraud and dishonesty as above stated, it makes the veiled charged that plaintiff was dishonest and deceitful in an insinuating and ironical way. It is well settled that written language may be libelous through the ironical and insinuating spirit in which it is used. 18 Am. & Eng. Ency. Law (2 Ed.), 977; McGinnis v. Knapp, 109 Mo. 141; Merrill v. Pub. Co., 197 Mass. 193; Buckstaff v. Viall, 84 Wis. 129; Bogdell v. Jones, 4 M. & W. 466. The mere headline of the article is libelous in the light of what follows. McGinnis v. Knapp, 109 Mo. 144; Hays v. Press Co., 127 Pa. St. 142. (c) The article is further libelous per se because it contained the veiled and insinuating imputation that plaintiff was acting the hypocrite while making the public address mentioned in the article. Newell on Slander & Libel (2 Ed.), 58. (d) The article is libelous per se because it directly charges that plaintiff was wholly destitute of credit and trust in Chillicothe where he formerly lived, honored and respected, and the last paragraph of the article, read in the light of the entire article, clearly and unmistakably insinuates and gives the reader to understand that plaintiff is a bad debtor and unworthy of credit. State v. Armstrong, 106 Mo. 415; Muetze v. Tutor, 77 Wis. 236; Davis v. Hamilton, 85 Minn. 209; Sanders v. Hall, 22 Tex. Civ. 282. To charge a person with a want of credit is libelous per se even though published of one as an individual, though not in respect to his business or trade. McDermott v. Union Credit Co., 76 Minn. 84. (e) The article read altogether is an ironical lampoon upon plaintiff. The necessary and inevitable consequences of the article were to provoke plaintiff to wrath, to expose him to public scorn, hatred, contempt and ridicule, and to deprive him of public confidence and social intercourse. It is sufficient to make the article libelous per se that its tendency is to produce any one of these results. McCloskey v. Publishing Co., 152 Mo. 339; Farley v. Publishing Co., 113 Mo.App. 216; Meriwether v. Publishing Co., 120 Mo.App. 354; McGinnis v. Knapp, 109 Mo. 131; Price v. Whiteley, 50 Mo. 439; Academy v. Gaisner, 125 Mo. 517; Manget v. O'Neill, 51 Mo.App. 35; Morse v. Printing Co., 124 Iowa 517; McMurray v. Martin, 26 Mo.App. 437; Julian v. Star Co., 209 Mo. 35. (4) The article sued on being libelous per se the court properly overruled the defendant's objection to the introduction of evidence under the petition, and properly overruled the demurrer to the evidence at the close of plaintiff's case, and properly refused the peremptory instruction asked at the close of the whole case. From the publication of written words which are actionable per se the law presumes damages. Brown v. Knapp & Co., 213 Mo. 696; Farley v. Publishing Co., 113 Mo.App. 225; Buckley v. Knapp, 48 Mo. 152; Doherty v. Lynett, 155 F. 681; 1 Jaggard on Torts, p. 493; 8 Ency. Evidence, p. 249....