Stark v. Publishers George Knapp & Company

• Decision Date: 12 March 1901
• Citation: 61 S.W. 669,160 Mo. 529
• Parties: STARK, Appellant, v. PUBLISHERS GEORGE KNAPP & COMPANY
• Court: Missouri Supreme Court

61 S.W. 669

160 Mo. 529

STARK, Appellant, v. PUBLISHERS GEORGE KNAPP & COMPANY

Supreme Court of Missouri, First Division

March 12, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

Chester H. Krum for appellant.

(1) The evidence offered in chief to prove that prior to the publication the appellant enjoyed a good general reputation for honesty and upright conduct, was improperly excluded. Smith v. Lovelace, 1 Dew. 215; Harding v Brooks, 5 Pick. 244; Dudley v. McCluer, 65 Mo 243; Williams v. Haig, 3 Rich. 362; Hurn v. Wilson, 28 Ind. 276; Bennett v. Hyde, 6 Conn. 24; Schroyer v. Miller, 3 W.Va. 158; Adams v. Lawson, 17 Gratt. 250. The depositions offered to show the existence of a lobby, and some connection of the appellant with such lobby, were utterly incompetent. Answer admits publication; contains no averments by way of general denial; no specification as to respect in which article is true. A justification must always be specially pleaded, and with sufficient particularity to enable plaintiff to know precisely what the charge is, which he will have to meet. The plea is always construed strictly against the party pleading it. It must justify the whole of the words to which it is pleaded, and set forth facts issuably. Leyman v. Latiner, 3 Ex. D. 15, 352; Jones v. Stevens, 11 Price, 235; Smith v. Tribune Co., 4 Biss. 477; Whittemore v. Weiss, 33 Mich. 348. Where the imputation complained of is a conclusion or inference from certain facts, the plea of justification must aver the existence of a state of facts, which will warrant the inference of the charge. Van Ness v. Hamilton, 19 Johns. 349; Johnson v. Stebbins, 5 Ind. 364. (2) Defamatory matter must be justified as explained by the innuendoes. "The doctrine is well settled that, so far as jurisdiction is concerned, it is justified as applied, or explained by the innuendoes; and, therefore, there can be no justification made out by the evidence unless the facts are proven true as alleged in the declaration and with the meaning there averred, unless with the aid of the colloquium such meaning is repugnant." Atkinson v. Free Press, 46 Mich. 341; Bissell v. Cornell, 24 Wend. 354; Bailey v. Kalamazoo Pub. Co., 40 Mich. 251; Gage v. Robinson, 12 Ohio 250; Downey v. Dillon, 52 Ind. 424. There is nothing by way of averment to bring the situation within the reprobation of lobbying as understood in the adjudications. Marshall v. Railroad, 16 How. 325; Strathman v. Gorla, 14 Mo.App. 1; Trist v. Childs, 21 Wall. 450; 9 Am. and Eng. Ency. of Law, 903. Evidence as to any such matters would be clearly incompetent, because the averment concerns a charge other than that constituting the libel. Ridley v. Perry, 16 Me. 21; Pallett v. Sargent, 36 N.H. 496. (3) (a) A newspaper publisher does not possess a peculiar privilege, and is not charged with a special duty. Aldrich v. Press, 9 Minn. 138; Salman v. Isaac, 20 L. T. 886; McGinnis, v. Knapp, 109 Mo. 131; Rearick v. Wilcox, 81 Ill. 77. (b) Conceding that persons seeking to control legislation may properly be criticised, and their doings canvassed, yet their reputations may not be calumniated. The situation is a public one, and the position of the person assailed, in principle, somewhat like that of a public officer. The occasion will not of itself excuse an aspersive attack upon the character of the individual, and to be excused, the critic must show the truth of what he charges. Hamilton v. Eno, 81 N.Y. 126; Smith v. Burrus, 106 Mo. 94; Snyder v. Fulton, 34 Mo. 128; Revaud v. De Camp, 96 Pa. St. 493; McGinnis v. Knapp, 109 Mo. 131; Rearick v. Wilcox, 81 Ill. 677; Wilson v. Fitch, 41 Cal. 363; Cooper v. Storie, 24 Wend. 434. (4) (a) No publication can be held to be privileged when its expressions are beyond what common sense indicates to be justifiable. Fryer v. Kinnessley, 15 C. B. (N. S.) 422; Flood on L. & S. 212. (b) Even under the doctrine of qualified privilege, the publication must have been made not merely in the course of duty -- that is, on an occasion which would justify it -- but also from a sense of duty and with belief in its truth. Dawkins v. Paulet, L. R. 5 Q. B. 102. (c) Exaggerated or unwarrantable expressions destroy the privilege. It extends to nothing which is not justified by the occasion. Warren v. Warren, 16 M. & R. 251; Senior v. Medland, 4 H. & N. 843; Bromage v. Prosser, 4 B. & C. 247. (5) The entire answer thus does not plead the facts constituting defenses. The first plea is bad, because not being as broad as the libel. The second plea is bad as setting forth no facts showing justification or privilege. The court, in fact, held, that the publication was not privileged, but completely erred in accepting the answer as a sufficient plea of justification. (6) The instruction given by the court of its own motion, in regard to the attitude of the appellant before the public in the matter of his course before the Legislature, and towards members, is not only erroneous, but deserves an express rebuke at the hands of this court. (a) At the very outset, the instruction is erroneous, because it does not indicate in what respect the article complained of must be found to be true. Had the libel been that the appellant was a thief, and the answer merely that the charge was true, it would have been a good instruction (on the theory of the one now considered), had the court merely told the jury, that if they found that the publication was true they should find for the respondent, without indicating at all the respects in which the finding of the truth must be had. (b) But this is an inconsiderable point, in comparison with the other objections to which this extraordinary instruction is open.

Boyle, Priest & Lehmann, and Morton Jourdan for respondent.

(1) Upon the undisputable facts of the case the judgment is for the right party, and therefore will not be reversed. Vaughan v. Daniels, 98 Mo. 230; Williams v. Mitchell, 112 Mo. 300; State v. Jones, 131 Mo. 194. (2) No objection having been made to the answer in the court below, the plaintiff will not be permitted to object here that the answer is not sufficiently specific. Klein v. Fischer, 30 Mo.App. 568; Williams v. Railroad, 112 Mo. 463. (3) It was not necessary to prove the truth of every detail of the publication; it was enough to show that it was true in so far as it imputed wrongdoing to the plaintiff. Edwards v. Knapp, 97 Mo. 432; Ratcliffe v. Courier, 36 S.W. 177; Jackson v. Times, 25 A. 613. (4) Attempting to influence legislative action by personal interviews with and individual solicitation of members is lobbying. Cooley Const. Lim. (5 Ed.), 165; Lyon v. Mitchell, 36 U.S. 241; Frost v. Belmont, 6 Allen (Mass.) 152; Trist v. Child, 21 Wall. 441. (5) The plaintiff, at the suggestion of some members of the school board, went to the capital and lobbied against the "Civic Federation" bill. He demanded and they paid him money from the public school funds to pay the expenses of his lobbying. This action on his part and theirs was illegal, immoral and corrupt. Frost v. Belmont, 88 Mass. 152; Minot v. West Roxbury, 112 Mass. 1; Coolidge v. Brookline, 114 Mass. 592; Mead v. Acton, 139 Mo. 341; Westbrook v. Deering, 63 Maine, 231; Colusa County v. Welch, 55 P. 243; Julian v. State, 39 N.E. 923; Pingery v. Washburn, 1 Aiken (Vt.) 264; Henderson v. Covington, 14 Bush. (Ky.) 312. (6) The lobbying methods of the defendant, as disclosed by his own testimony, were immoral and fraudulent. See cases cited under point 5, and Marshall v. Railroad, 16 How. (U.S.) 314. (7) No claim of right could excuse the plaintiff, or make the publication complained of libelous, when it simply denounced his conduct, as the law denounced it, as immoral, fraudulent and corrupt. Abbott's Law Dic., 295; Black's Law Dic., 281; Bouvier's Law Dic., 446; Stow v. Converse, 3 Conn. 325; Bank v. Butts, 9 Mass. 4; Bank v. Basel, 47 Mo. 416; Comm. v. Bagley, 7 Pick. 279; United States v. Anthony, 11 Blatchf. 207; State v. King, 86 N.C. 603; State v. Voight, 90 N.C. 741. (8) It was not error to exclude evidence of plaintiff's previous reputation when it was offered by him in chief, and no such evidence was offered in rebuttal. The court instructed that his reputation must be presumed to be good. As his own testimony shows that he was guilty of corrupt conduct in connection with his lobbying, the exclusion of evidence as to his previous reputation was not prejudicial error. Townshend on Slander and Libel (4 Ed.), 645; Inman v. Foster, 8 Wend. 602; Harbison v. Shook, 41 Ill. 142. (9) The plaintiff was shown to have been cognizant of and to have assented to the use of money to defeat the bill. It was, therefore, competent to prove the particular way in which the money was used, and how the bill was to be defeated.

OPINION

BRACE, P. J.

This is an action for libel, against the defendants, publishers of The St. Louis Republic. The petition charges:

"That heretofore, to-wit, on the eighteenth day of March, eighteen hundred and ninety-seven, at the said city, the said defendant maliciously published in the said newspaper in an editorial, entitled "That Lobby Settles It," of and concerning the plaintiff, the following false and defamatory matter, to-wit:

"'Malign is a good word to apply to the influences working at Jefferson City to defeat the Civic Federation School Bill in the State Senate. Led by Attorney Stark, who represents the Filley combine of the school board, the lobby against the bill is composed of contractors and "go-betweens" who have fattened on the corruption of the present system and are working for a continuance of fat opportunities.

"'For Democratic Senators to yield to the blandishments of a corrupt Filley combine, would be the hardest blow that could be...