Tilles v. Pulitzer Publishing Company

• Citation: 145 S.W. 1143,241 Mo. 609
• Parties: C. A. TILLES v. PULITZER PUBLISHING COMPANY, Appellant
• Decision Date: 28 March 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 1143

241 Mo. 609

C. A. TILLES v. PULITZER PUBLISHING COMPANY, Appellant

Supreme Court of Missouri

March 28, 1912

Appeal from St. Charles Circuit Court. -- Hon. J. D. Barnett, Judge.

Reversed.

Judson & Green for appellant.

(1) Defendant's plea to the jurisdiction of the trial court should have been sustained. The construction placed upon the Missouri statutes by the lower court renders them unconstitutional and void in denying to the defendant the equal protection of the laws. County v. Railroad, 118 U.S. 394; Railroad v. Ellis, 165 U.S. 150; State v. Ashbrook, 154 Mo. 375; State v Railroad, 195 Mo. 288; State v. Loomis, 115 Mo 307; Hammond Co. v. Best, 91 Me. 431. (2) Plaintiff's petition is fatally defective in that it fails to set out enough of the article complained of to enable the court to understand the sense in which the language so set out was used, and the demurrer and motion in arrest should, therefore, have been sustained. Townshend on Libel, sec. 334; Odgers on Libel (4 Ed.), 581; Cartwright v. Wright, 5 B. & A. 615; Rutherford v. Evans, 6 Bingham, 451. There being no matters of "inducement" alleged in the petition -- no allegation that plaintiff was in fact either an owner, or a stockholder, or managing officer of the corporation owner -- both the petition and the proofs are in this respect fatally defective. Havemeyer v. Fuller, 60 How. Prac. 320; Pub. Co. v. Journal Co., 108 Mo.App. 232; Legg v. Dunleavy, 80 Mo. 558; Crystal v. Craig, 80 Mo. 367; McManus v. Jackson, 28 Mo. 56; Bundy v Hart, 46 Mo. 460; Kenworthy v. Journal Co., 117 Mo.App. 327; Flowers v. Smith, 214 Mo. 132; Hatfield v. Sisson, 59 N.Y.S. 73. (3) It was admitted that the "owner" of the Delmar Race Track was a corporation. As a corporation must necessarily act through its officers and agents, this article can only mean that those managing officers and agents of the corporation, who were personally in control of said track about the 22d of June, 1905, were, in the opinion of the Attorney-General, guilty of a felony. As it was admitted that plaintiff was in Europe at that time, this article could not have been libelous as to him, if he was not in fact acting as a managing officer, and defendant's demurrer to the evidence should have been sustained. Kenworthy v. Journal Co., 117 Mo.App. 327; Flowers v. Smith, 214 Mo. 132; Girard v. Beech, 3 Smith (N.Y. Rep.), 337; Newell on Slander & Libel (2 Ed.), 258, sec. 21; Crecelius v. Bierman, 59 Mo.App. 513. To publish an article imputing dishonest conduct to a corporation, libels only its actual "managing officers." Pub. Co. v. Journal Co., 108 Mo.App. 232. Plaintiff's case in respect to this fatal defect in his petition and proofs is not aided or strengthened in any way by the illegal testimony of McCarty, Baer and Ray as to what they understood the word "owners," as used in this article, to mean, because each of those witnesses had special or peculiar knowledge upon the subject, which it was not shown that the ordinary reader possessed. Therefore, the fact that the parties, with their special knowledge about the race thack, understood the word "owners" to mean Cella, Adler & Tilles, affords no sort of inference that the ordinary, average reader, without such special knowledge, so understood it. The question here is, how did the ordinary reader understand it? Gribble v. Pub. Co., 37 Minn. 277; Newell on Slander & Libel (2 Ed.), 308, sec. 33; Callahan v. Ingram, 122 Mo. 355; O'Brien v. Bennett, 76 N.Y.S. 498; Snell v. Snow, 54 Mass. 278, 13 Met. 278; Anderson v. Hart, 68 Iowa 400; Van Vetchin v. Hopkins, 5 Johns. 211; Stokes v. Journal, 73 N.Y.S. 245. Therefore, plaintiff's instructions are fatally defective in authorizing the jury to find for plaintiff if they believed that the article was in fact published of and concerning plaintiff, without requiring them to find that the ordinary average reader understood it to be published of an concerning plaintiff. (4) The article was not libelous even if it was understood by the ordinary reader to refer to plaintiff, because it merely states an opinion as to the legality or criminality of a certain system of betting then being openly conducted at the Delmar Race Track. Where words relate to certain acts, and merely express an opinion as to the legal effect of the acts referred to, they are not libelous, even though they in form impute a crime. Therefore, it being clear from this article that it merely expresses the opinion of the Attorney-General that a certain system of racing and betting thereon then in actual use at the Delmar Race Track was in violation of law, and that the persons who permitted the same to be so conducted had committed a crime, it was not libelous, and as there was no evidence of bad faith in making this publication, there was therefore nothing to submit to a jury. McGilroy v. Springett, 68 Ill.App. 276; Ayres v. Grider, 15 Ill. 37; Hall v. Adkins, 59 Mo. 144; Hatfield v. Sisson, 59 N.Y.S. 73; Havemeyer v. Fuller, 60 How. Prac. 316; Townshend on Libel & Slander, 173, 174; Newell on Libel (2 Ed.), 569. (5) The article was privileged because it refers to the public acts and the public opinions and announcements of the public officers of the State upon a public matter; and it was the duty of the defendant, as well as of all good citizens, to make those announcements and opinions known to those who were accustomed to attend said track. It was, therefore, in the highest degree and in every sense, a privileged occasion, and as there was no evidence of express malice or actual ill-will, there was nothing to submit to the jury. Crane v. Waters, 10 F. 689; Weber v. Lane, 99 Mo.App. 69; Barrows v. Bell, 7 Gray, 301; Meriwether v. Knapp, 120 Mo.App. 390; Brown v. Printing Co., 213 Mo. 611; 18 Am. and Eng. Ency. Law (2 Ed.), 1046; Albutt v. General Council, 232 B. Div. 400; McBee v. Fulton, 47 Md. 403; Tresca v. Maddox, 15 Am. Dec. 214; Usill v. Hales, 3 C. P. D. 319; Usher v. Severance, 20 Me. 9; Newell on Slander and Libel, p. 549, sec. 152; Pub. Co. v. Smith, 149 F. 706; McClure v. Pub. Co., 38 Wash. 160. (6) The Delmar Race Track was a place of general public resort, to which all the public were invited. The announcement of the Governor and the opinion of the attorney-general, therefore, as to the character of this public place, and as to the legality of the operations which were publicly conducted there, and which the general public were invited to see and participate in, was of general public interest and it was the duty of defendant as a public journal, for these reasons, to advise its readers what the opinion of the attorney-general as to its character was. The court, therefore, erred in refusing to give defendant's instructions on the theory of privilege. Finley v. Steele, 159 Mo. 299; Newell on Libel (2 Ed.), 500; Townshend on Libel (4 Ed.), sec. 209; Eames v. Whitaker, 123 Mass. 342; Landis v. Campbell, 79 Mo. 239; Press Co. v. Stewart, 119 Pa. 584; Klinck v. Kolby, 46 N.Y. 427; Klos v. Zahorik, 113 Iowa 161; Cheny v. Leader, 114 Iowa 298; Bearce v. Bass, 88 Me. 521; Meriwether v. Knapp, 120 Mo.App. 390; Fair Assn. v. Carmody, 151 Mo. 577; Rabb v. Trevelyan, 122 La. 174.

Bond, Marshall & Bond for respondent.

(1) An untruthful publication charging an offense "in general terms" is libelous per se. An untruthful publication is also libelous, though failing to charge any offense, "if it tends to expose the plaintiff to contempt, hatred, scorn or ridicule." R. S. 1899, sec. 2259; Nelson v. Musgrave, 10 Mo. 648; Kimball v. Sass, 12 Mo. 499; Price v. Whitley, 50 Mo. 439; Mitchell v. Bradstreet Co., 116 Mo. 241; Ferguson v. Pub. Co., 72 Mo.App. 465; Minter v. Bradstreet, 174 Mo. 485; Ukman v. Daily Record, 189 Mo. 378; McGinniss v. Knapp, 109 Mo. 131; Jones v. Murray, 167 Mo. 44. "It is not necessary in a complaint for libel to set out the whole of the obnoxious publication in which the libel appears. It will be sufficient to set forth such parts of the libel as the plaintiff relies on." 13 Ency. Pl. and Pr. 48. (2) Any publication which is libelous of itself, without any colloquium or innuendo pointing out its libelous sense and meaning, constitutes a cause of action for actual or general damages, without any evidence of injury other than proof of the publication. R. S. 1899, sec. 635; Sheber v. Wensel, 19 Mo. 513; Caruth v. Richeson, 96 Mo. 189; Crecilius v. Bierman, 59 Mo.App. 522. (3) Where oral evidence is offered to sustain an affirmative defense -- as the plea in justification filed in this case -- the issue joined in such defense must be submitted to the jury, even if all the evidence is one way; since it is for the jury to say whether or not they believe the witnesses. For a stronger reason must this be done, when there was no substantial evidence offered in support of a plea of justification and positive evidence was adduced in disproof of such plea. Wolff v. Campbell, 110 Mo. 114; Huston v. Tyler, 140 Mo. 252; Gregory v. Chambers, 78 Mo. 294; Dalton v. Poplar Bluff, 173 Mo. 47. (4) "Where the words of the libelous publication apply equally well to more persons than one," all circumstances showing plaintiff was meant, may be given in evidence, also all statements of defendant as to the person meant; also readers of the paper may give evidence as to whom they understood the libel to refer. Fanu v. Malcolmson, 1 H. 668; Odgers on Libel & Slander, 129; Newell on Libel & Slander, 259; Caruth v. Richeson, 95 Mo. 189; Crecilius v. Bierman, 59 Mo.App. 522; Julian v. Star, 209 Mo. 79; Russell v. Kelly, 44 Cal. 641; Van Dugen v. Mail & Exp. Co., 156 N.Y. 376. A plea of justification must be as broad as the defamatory accusation, and where the defamatory charge is general in its nature, the plea must state specifically the acts or offenses of...