St. James Military Academy v. Gaiser

• Decision Date: 18 December 1894
• Citation: 28 S.W. 851,125 Mo. 517
• Parties: St. James Military Academy, Appellant, v. Gaiser et al
• Court: Missouri Supreme Court

28 S.W. 851

125 Mo. 517

St. James Military Academy, Appellant, v. Gaiser et al

Supreme Court of Missouri, Second Division

December 18, 1894

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Reversed and remanded.

Silver & Brown and C. P. Hess for appellant.

(1) A corporation may sue for libel or slander against it "in the way of its business or trade." Newell on Slander and Libel, p. 360; Johnson v. Co., 64 Mo. 539. (2) A false imputation made for the purpose of injuring one in his profession or trade is actionable, even though the words may not, strictly speaking, be defamatory. Morasse v Brochu, 151 Mass. 567, at p. 574, and authorities cited; Odgers on Libel and Slander, p. 89, et seq. (3) So words are actionable per se, which convey an imputation upon one in the way of his profession or occupation, and in such case there need be no averment of special damages. Morasse v Brochu, 151 Mass. 575. (4) The imputation in the publication complained of is inter alia that plaintiff had opened a dancing school in its academy building, and was thereby fostering a practice "harmful to the moral and religious interests of the community," and the publication further called upon the friends of religion and good morals to absent themselves from all receptions and other gatherings at plaintiff's school. The above charge is in effect that plaintiff's school has an irreligious and immoral feature and is coupled with a recommendation to the public as to the same necessarily and injuriously affecting the patronage and prosperity of the school. Such publication is libelous per se. Morasse v. Brochu, 151 Mass. 567. (5) A libel may be malicious and actionable even though the motive was a good one, e. g., reformation of morals or manners. Com. v. Snelling, 15 Pick. 337; Jellison v. Goodwin, 43 Me. 287; Shurtleff v. Parker, 130 Mass. 293. Malice does not mean ill-will, but a false and injurious publication without excuse. Cooley on Torts [2 Ed.], p. 245. (6) The existence of malice is a question for the jury, and this is particularly true under our constitutional provision, that the jury under the direction of the court "shall determine the law and the fact." Const., art. 2, sec. 14; State v. Armstrong, 106 Mo. 395. The constitutional provision by its very language obviously applies to civil actions as well as to criminal prosecutions, and for that reason the case should have gone to the jury on the question of libel or no libel and other issues of law and fact involved. State v. Armstrong, supra. See, also, Flint v. Co., 110 Mo. 492. (7) In civil actions it is only "where the court can say that the publication is not reasonably capable of any defamatory meaning and can not reasonably be understood in any defamatory sense that the court can rule as a matter of law that the publication is not libelous and withdraw the case from the jury or order a verdict for the defendant." Twombley v. Monroe, 136 Mass. 464; McGinnis v. Knapp, 109 Mo. 131; Teachy v. McKenna, 4 Irish Com. Law Rep. 374. Here the plaintiff was expressly charged with conducting an immoral business. (8) Words are more readily actionable in libel than in case of slander and this is specially true in a case like this one, where the injurious matter is designedly published in public newspapers, with the expressed intention of giving it a wide public circulation. McMurry v. Martin, 26 Mo.App. 437; Cooley on Torts [2 Ed.], p. 239, et seq. (9) The prefatory matter alleged in the petition sufficiently shows the meaning and actionable character of the publication complained of, if indeed such was necessary. Legg v. Dunleavy, 80 Mo. 558. (10) The false and libelous character of the publication in this case consists: First. In charging the plaintiff with "the opening of a dancing school in the academy building," whereas (as stated in the petition) it did not open a dancing school, but merely permitted some of the students who so desired to hire a dancing teacher and to take lessons from him in the terpsichorean art, and, second, in charging the dancing to be immoral and irreligious, and that the school was not worthy of public patronage, when in point of fact such is not the case -- and thereby injuring plaintiff in its business. Morasse v. Brochu, 151 Mass. 567, supra. (11) It follows from what is above set forth that the motion to strike out part of defendant's answer should have been sustained. Morasse v. Brochu, 151 Mass. 567; Com. v. Snelling, 15 Pick. 337; Jellison v. Goodwin, 43 Me. 287; Shurtleff v. Parker, 130 Mass. 293; Twombley v. Monroe, 136 Mass. 464.

Dysart & Mitchell for respondents.

(1) The petition in this case is drafted on the theory that the publication is libelous and defamatory per se. No special damage is alleged, and no proof of special damage could be received under the petition. Newell on Defamation, Slander and Libel, p. 849, et seq; Salvatelli v. Ghio, 9 Mo.App. 155. And the special damage must be set out with sufficient particularity. Herman v. Bradstreet Co., 19 Mo.App. 227; 13 Am. and Eng. Encyclopedia of Law, 434. (2) In the publication complained of there is no intimation or hint that the dancing permitted or practiced in the school was of an improper character. Giving to the words of this publication their evident meaning, they fall within no definition of libel ever promulgated in a statute, text-book or decided case. McGinnis v. Knapp, 109 Mo. 131. In the following cases the publications were much more serious, but held to be not libelous. Baldwin v. Walser, 41 Mo.App. 243; Legg v. Dunleavy, 80 Mo. 558. (3) Even if dancing had been prohibited by law and made a felony or misdemeanor and the publication had been clearly libelous and defamatory, yet the truth of the publication was and is a perfect defense both in a civil action and in a criminal prosecution. R. S. 1889, secs. 3872, 2081; Am. and Eng. Encyclopedia of Law, p. 394. (4) The point and argument made by the appellant that in all events the case should have gone to the jury, on the question of libel or no libel, i. e., cause of action or no cause of action, is untenable. The constitutional provision and rule invoked was made for the protection of a defendant, the person accused of libel, and for the more enlarged liberty of the press; not to aid a plaintiff in a civil action. The doctrine contended for would work an inhibition upon the trial court to sustain a demurrer to the petition in libel suits, no matter how frivolous the charge, or the publication complained of. "Section 14, article 2, of our constitution is but a rescript of section 1, Fox's libel act." State v. Armstrong, 106 Mo. 419. "And the English courts make a broad distinction in prosecutions for criminal libel and all other cases as to the province of court and jury." S. C., at p. 420. In the case of McGinnis v. Knapp, 109 Mo. 131, a demurrer to the petition was sustained. The case was reversed and remanded by this court, for the reason that the petition did in fact state a cause of action. Nowhere is it intimated that the case ought to have gone to the jury to settle the question of libel or no libel. The petition was held sufficient on demurrer, otherwise it would have been affirmed.

OPINION

Burgess, J.

This is an action for libel by plaintiff, a corporation and institution of learning and education, against the defendants. The charge in the petition is that plaintiff permitted dancing in its school building at receptions given occasionally in each year, and permitted its students to employ, of their own accord and at their own expense, a teacher to instruct them in the art of dancing, and that defendants published of, and concerning, plaintiff and its said school and academy, a certain false, malicious and defamatory libel, charging plaintiff with conducting and maintaining an "immoral school," a "dancing school," "harmful to the moral and religious interests of the community," "hurtful to the moral and spiritual well-being of the community," and calling upon friends of religion and good morals to absent themselves from plaintiff's school and gatherings at its academy.

The defendants, who were resident clergymen of the city of Macon, published the following:

"At the meeting of the Ministers' Alliance, of Macon Missouri, on January 25, 1893, the following paper was unanimously adopted:

"Whereas, The St. James Military Academy of this city, a school formerly under the control of the Episcopal church, at the beginning of this school year, announced itself as a 'Non-Sectarian Christian Institution,' and under the present administration there is fostered a practice, viz., dancing, which is antagonistic to the teaching of our churches and homes, the superintendent and others connected with the institution using their influence to draw the young people of our churches and homes into the practice, which we believe and teach to be hurtful to the moral and spiritual well-being of all engaging in it; and,

"Whereas, We have respectfully requested, first, the superintendent of the school, and, second, the board of curators, that the aforesaid practice be discontinued so as to enable us to lend our influence toward the building up of an institution of learning worthy of the patronage of all our people; our request having been ignored, and it being the apparent purpose of those in control of the institution to continue such objectionable practice, as evidenced by the opening of a dancing school in the academy building;

"Therefore be it resolved: First, that we regard the institution under such administration as harmful to the moral and religious interests of our community, and on this ground we hereby withdraw any influence or commendation we have heretofore given it; second, that we urge upon the members of our...