Swafford v. Miller

• Decision Date: 03 June 1986
• Docket Number: No. 14477,14477
• Citation: 711 S.W.2d 211
• Parties: Norman W. SWAFFORD, Plaintiff-Appellant, v. Barney MILLER and Statesman Publishing Company, Incorporated, a Missouri corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 211

711 S.W.2d 211

Norman W. SWAFFORD, Plaintiff-Appellant, v. Barney MILLER and Statesman Publishing Company Incorporated, a Missouri corporation Defendants-Respondents.

No. 14477.

Missouri Court of Appeals,

Southern District,

Division One.

June 3, 1986.

Dennis P. Wilson, Parsons, Mitchell & Wilson, P.C., Dexter, for plaintiff-appellant.

John Wm. Ringer, Powell, Ringer and Bischof, Dexter, for defendants-respondents.

FLANIGAN, Judge.

Plaintiff Norman Swafford, a professional photographer, brought this libel action against the defendants who are the publishers of the Daily Statesman, a newspaper "of large circulation published in Stoddard County." Defendants filed a motion to dismiss on the ground that the petition failed to state a claim upon which relief can be granted. The trial court sustained the motion. Plaintiff appeals.

The action arises out of the following article which appeared in the Daily Statesman on May 28, 1982:

"WE'RE SORRY BERNIE

To the students, parents and friends of the Bernie graduates, we are sorry that we were unable to obtain individual photos of the Bernie Seniors. This newspaper has for many years published the individual pictures from the Bernie school, the same as Dexter and Richland. In these instances, the Daily Statesman works with the photographer who takes the pictures, and in nearly all cases they have cooperated. For some reason Mr. Norman Swafford did not choose to furnish us with those individual pictures this year and for that we are sorry. We have published elsewhere in this edition a group picture of the Bernie graduates."

In addition to alleging the contents of the article and defendants' publication of it, the petition alleged:

"5. That Defendants were at fault in publishing such article in that said article was published intentionally with negligent and reckless disregard for the truth or for the purpose of injuring Plaintiff.

6. Plaintiff did not take the individual photographs of the Bernie Seniors in the year 1982, except for a small percentage of said Seniors. In fact, most of the Bernie Senior pictures for the year 1982, were taken by competitors of Plaintiff, and Defendants never inquired as to whether or not Plaintiff had taken such photographs.

7. That the published article referred to hereinabove tended to deprive the Plaintiff of the benefit of public confidence and trust and contained false and misleading statements.

8. That said article was read by the public and Plaintiff's reputation and business associations were thereby damaged.

9. Plaintiff is a professional photographer engaged in the business of photography including the photographing of high school students in Stoddard County, Missouri, and surrounding areas; and that the publication of said article caused Plaintiff to suffer substantial loss and damage to his business by stating and implying that Plaintiff did not cooperate with the newspaper or his clientele in furnishing photographs of Seniors for newspaper publication, thereby defaming Plaintiff's professional reputation and causing him to lose customers and income in his business."

The prayer was for $50,000 for actual damages and $50,000 in punitive damages.

In his sole point plaintiff states that the allegations of the petition were sufficient to state a cause of action for libel and that the trial court erred in ruling otherwise. For the reasons which follow, this court holds that the petition was not sufficient to plead a cause of action in libel per se because the newspaper article was not defamatory of the plaintiff in his calling. This court also holds that the failure of the petition to contain a sufficient pleading of "special damages" makes it insufficient to state a cause of action in libel per quod.

Art. 1, § 8, V.A.M.S., Const. 1945, provides that the jury, under the direction of the court, shall determine the law and facts in suits for libel. Nevertheless "a petition in which damage are sought for defamation by libel is subject to a motion to dismiss." Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 51 (1955). "[T]he function of a trial court and of an appellate court in determining the sufficiency of a petition setting forth a claim for damages for libel is necessarily limited to a determination of whether the communication set forth in the petition, together with matters of inducement and innuendo which may be there contained, is capable of a defamatory meaning. This function may require the court to determine whether the communication reasonably conveyed the meaning ascribed to it by plaintiff and, if so, whether that meaning was defamatory in character." Coots v. Payton, supra, at 51[3, 4].

"A writing claimed to be libelous must be interpreted from its four corners. It must be given its ordinary meaning in the plain and popular sense." Jacobs v. Transcontinental & Western Air, 358 Mo. 674, 216 S.W.2d 523, 525 (1948).

Libel was defined in § 559.410 RSMo.1969 as follows: " 'A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.' " Section 559.410 was repealed by Laws 1977, Senate Bill No. 60, Effective Jan. 1, 1979.

Prior to the repeal of § 559.410 the Supreme Court held, in Coots v. Payton, supra, 280 S.W.2d at 53, that the statutory definition of libel applied in both criminal and civil cases. See also Hylsky v. Globe Democrat Pub. Co., 348 Mo. 83, 152 S.W.2d 119, 122[5, 6] (1941). "Any false, unprivileged, written communication which, reasonably construed, comes within the statutory definition is libelous per se." Coots v. Payton, supra, at 53.

The definition of libel, contained in the repealed statute, "is substantially the same as the definition of libel at common law." Bello v. Random House, Inc., 422 S.W.2d 339, 340 (Mo.1967). This court has said that the definition in the repealed statute "is not different from the common-law definition." Skelley v. St. Louis & S.F.R. Co., 176 Mo.App. 156, 161 S.W. 877 (1913). In Kenworthy v. Journal Co., 117 Mo.App. 327, 93 S.W. 882, 885 (1906), the court said that the definition in the now repealed statute was "substantially the same" as the common law definition of libel and added, "The intent of the Legislature was to make all classes of libel misdemeanors and actionable per se, and not to make publications libelous other than at common law.... Such being the status of the law, it is immaterial whether we consider the main point in question [whether the plaintiff was included in the class of the persons defamed] from a standpoint of the statute or the common law." Accordingly, the language of the repealed statute remains an accurate definition of civil libel.

"There are two types of libel actions, libel per se and libel per quod." Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 496 (Mo.App.1980). In Langworthy v. Pulitzer Publishing Company, 368 S.W.2d 385 (Mo.1963), the court said:

"Words which are defamatory per se, that is, defamatory on their face without the aid of extrinsic proof, are actionable and the allegation in the petition of extrinsic facts in the form of what is referred to as the inducement and innuendo is not required in order to state a cause of action.... In such event the law presumes damages which may be alleged generally, ... and special damages need not be alleged although proof of actual damage may be made to support the presumption of injury and to show its extent.... A petition based on published words not defamatory per se may state a cause of action for what is referred to as libel per quod.... However, the petition must allege extrinsic facts which show that although the words published were not libel per se they were in fact defamatory, and it is the uniform rule in Missouri and elsewhere that in such situation special damages must be pleaded in order for the petition to state a cause of action." ¹ (Authorities omitted.)

It is not sufficient, to constitute libel, that the writing "tends to provoke [plaintiff] to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse." The writing must indeed so "tend" but, in addition, it must be a "malicious defamation." Langworthy v. Pulitzer Publishing Company, supra, 368 S.W.2d at 389. Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 433, 135 S.W. 6, 11 (1911). As said in Diener:

"There must be defamation in a libelous sense before there can be a libel. * * * To make a libel there must be defamation in the sense of the law, before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by lying; the injury of another's reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous."

Does the language of the instant newspaper article constitute libel per se? In making this determination this court must ignore any pleaded innuendo. "Words which are libelous per se do not need an innuendo and, conversely, words which need an innuendo are not libelous per se." Langworthy v. Pulitzer Publishing Company, supra, 368 S.W.2d at 388-389. To similar effect see Thomson v. Kansas City Star Company, 387 S.W.2d 493, 496 (Mo.1965).

In general, the article is reasonably subject to the construction that plaintiff took individual photographs of the Bernie seniors, that "for some reason" he chose not to furnish the newspaper with the photographs, and that, in so doing, plaintiff failed to "cooperate" with the newspaper although other photographers [perhaps including plaintiff] so "cooperated" in prior years. Certainly the article does not accuse the plaintiff of any criminal act nor does it "dishonor" him or "render" him "infamous."

Does the article defame the plaintiff in his...