Tilles v. Pulitzer Pub. Co.

• Citation: 145 S.W. 1143
• Parties: TILLES v. PULITZER PUB. CO.
• Decision Date: 09 February 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 1143

TILLES v. PULITZER PUB. CO.

Supreme Court of Missouri.

February 9, 1912.

Motion for Rehearing Overruled March 28, 1912.

1. CONSTITUTIONAL LAW (§ 208)—CLASS LEGISLATION—ACTIONS AGAINST.

Rev. St. 1899, § 997, providing that suits against corporations shall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have an office or agent for the transaction of their business, embodied in the chapter relating to corporations, when read in connection with section 971, declaring that corporations may sue and be sued, is not invalid as class legislation, because it does not afford corporations organized under the statutes the protection of the law equal to that afforded to individuals by section 562, providing that suits shall be brought where defendant is a resident, either in the county within which he resides or in the county within which plaintiff resides, and defendant may be found.

2. APPEARANCE (§ 9)—WHAT CONSTITUTES.

Defendant by filing an application for change of venue entered a general appearance so as to waive a contention that the court had no jurisdiction over its person.

3. LIBEL AND SLANDER (§ 82)—ACTIONS— ALLEGATIONS OF PETITION—SUFFICIENCY.

Under Rev. St. 1909, § 1837, providing that, in an action for libel, the petition need not state any extrinsic facts to show the application to plaintiff of the defamatory matter, but may state generally that it was published concerning plaintiff, a petition charging that on a certain date defendant caused a false and defamatory libelous article to be printed in its newspaper "of and concerning this plaintiff," to wit, "`These men,' he said, `are engaged in the commission of an open felony, and the owners of the race track are equally guilty with the bookmakers under the statute,'" was sufficient without alleging extrinsic facts showing the application of the defamatory matter to plaintiff.

4. LIBEL AND SLANDER (§ 7)—WORDS LIBELOUS PER SE—WORDS CHARGING FELONY.

The publication of words charging a felony is libelous per se.

5. LIBEL AND SLANDER (§ 19)—PERSON LIABLE —"OWNERS."

In June, 1905, defendant newspaper published an article to the effect that bookmakers at a race track were committing a felony, and that "the owners of the race track are equally guilty with the bookmakers under the statute." At that time the race track was owned by a corporation, of which another corporation, a jockey club, was lessee, and plaintiff and two others were the principal stockholders in the lessee corporation, but during the year 1905 plaintiff was not actively engaged in managing the jockey club, and on May 1, 1905, he left for Europe, and was there when the article was published. During his absence the management of the race track was left to the discretion of the other two principal stock owners. Defendant's paper had on numerous occasions published the fact that the plaintiff and the two other principal stockholders were the owners of the race track. Held, that plaintiff was included within the term "owners" as used in the published article, so that it was libelous as to him.

6. LIBEL AND SLANDER (§ 42)—PRIVILEGED COMMUNICATIONS—QUALIFIED PRIVILEGE— PUBLICATION OF OFFICIAL OPINION—OPINION OF ATTORNEY GENERAL.

The Governor of the state ordered the Attorney General to investigate the operation of a race track by a club of which plaintiff was a stockholder on the ground that its operation was illegal, and the Attorney General, through his assistants, investigated and made several reports that the law was being violated to the Governor, who threatened to call out the militia to keep the track from operating in violation of law. The facts regarding the investigation were published at length in the newspapers of the city, and considerable public interest was aroused. After the investigation, the Attorney General gave defendant's correspondent an interview, in which he stated, speaking as Attorney General, in order, as he testified, to inform the public concerning what he considered a matter of public interest, that the owners of the race track were guilty of a felony. Held, that the statement of the Attorney General, when published, was qualifiedly privileged.

7. LIBEL AND SLANDER (§ 42)—PRIVILEGED COMMUNICATIONS—ABSENCE OF MALICE.

The publication of an interview with the Attorney General concerning a matter of public interest must be fair and made without malice in order to be qualifiedly privileged.

8. LIBEL AND SLANDER (§ 5)—PRESUMPTIONS —MALICE—REBUTTAL.

The presumption of actual malice from the publication of words libelous per se may be rebutted by evidence.

9. TRIAL (§ 139)—ACTIONS—DIRECTION OF VERDICT.

In libel as in other actions, the court should take the case from the jury by a peremptory instruction, if, under the pleadings and evidence, plaintiff cannot recover.

10. LIBEL AND SLANDER (§ 112)—MALICE— EVIDENCE.

It is not evidence of express malice toward a stockholder of a particular corporation for a newspaper to advocate a just distribution of taxation as to corporate property.

11. LIBEL AND SLANDER (§ 112)—MALICE— EVIDENCE.

That a newspaper published the acts of the county officials in enforcing a statute prohibiting bookmaking at race tracks was not evidence of express malice toward a stockholder or manager of the race track corporation.

Woodson, J., dissenting in part.

In Banc.

Appeal from Circuit Court, St. Charles County; J. D. Barnett, Judge.

Action by C. A. Tilles against the Pulitzer Publishing Company. From a judgment for plaintiff, defendant appeals. Reversed.

Judson & Green, for appellant. Bond, Marshall & Bond, for respondent.

GRAVES, P. J.

Plaintiff, a resident of the city of St. Louis, sued the defendant corporation, likewise domiciled in the city of St. Louis, for libel. The original petition was lodged with the clerk of the circuit court of St. Louis county rather than with the clerk of the circuit court of the city of St. Louis, where both parties were domiciled. Damages were alleged in the sum of $150,000, of which $100,000 were alleged to be actual and $50,000 exemplary. By the petition it is charged that the defendant publishes the St. Louis Post-Dispatch, a daily newspaper, and had an agent for the distribution of such paper in the county of St. Louis; that it had many subscribers to said paper in said county, and such paper was generally circulated and read in said county and was so circulated and read on June 22, 1905; that the president or chief officer of such corporation could not be found in said county of St. Louis. After these general allegations, the petition then proceeds: "That on said date, to wit, 22d day of June, 1905, the defendant caused the following false, malicious, defamatory, and libelous articles to be printed and published in its said newspaper of and concerning this plaintiff, to wit: `These men,' he said, `are engaged in the commission of an open felony, and the owners of the race track are equally guilty with the bookmakers under the statute. The law must be enforced, and we are going to prosecute everybody who violates it.' Meaning thereby that plaintiff and others as the owners of a certain race track, known as the Delmar race track, were engaged in the commission of an open felony. Plaintiff states that said publication above set out was willful, malicious, and false, and by reason thereof he has been damaged in his reputation in the sum of one hundred thousand ($100,000) dollars." The summons appears to have been directed to the sheriff of the city of St. Louis, and there served by delivering a copy thereof at the office of the defendant in the city of St. Louis to the person in charge of said office; the president and other chief officers of such defendant not being found even in the city of St. Louis. At the September term of the circuit court of the county of St. Louis, the defendant entered a special appearance to challenge the jurisdiction of that court, and by its motion to dismiss did challenge the jurisdiction of that court. The motion is an elaborate one, and which was evidently prepared with great care, but the details thereof need not be further stated at this time. Suffice it to now say that the same was overruled and defendant duly preserved its rights, if any, by proper bill of exceptions. After the overruling of this motion going to the jurisdiction, the defendant filed its application for a change of venue, alleging the usual statutory grounds. This application coming on for hearing, and the sufficiency thereof being apparently conceded, the record discloses that the parties agreed that the court might send the case to the circuit court of St. Charles county, and the cause was so transferred without further pleadings filed.

In the circuit court of St. Charles county the defendant challenged the petition by a demurrer, but, this being overruled, it answered over. The cause went to trial upon an amended answer, which thus reads:

"Now comes defendant, the Pulitzer Publishing Company, and files this, its amended answer, to plaintiff's petition, and, answering, says:

"(1) This defendant renews its special plea to the jurisdiction heretofore made in this court, and says that this court has no jurisdiction over this defendant in this cause, for the reason that this defendant had no officer or agent in St. Louis county, where this suit was filed, nor did the cause of action sued on accrue in St. Louis county, and that the pretended service of process in this cause was made by the clerk of the St. Louis county circuit court sending the petition and summons to the sheriff of the city of St. Louis, and that this defendant made no voluntary appearance in the county of St. Louis, but made a special appearance for that purpose only and filed its special plea to the jurisdiction, and, after said plea was overruled, removed said cause to this court by change of venue. This defendant says that the St. Louis...