Walsh v. Pulitzer Pub. Co.

• Decision Date: 29 February 1916
• Docket Number: No. 16942.,16942.
• Citation: 183 S.W. 587
• Parties: WALSH v. PULITZER PUB. CO.
• Court: Missouri Supreme Court

183 S.W. 587

WALSH v. PULITZER PUB. CO.

No. 16942.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action for libel by Henry M. Walsh against the Pulitzer Publishing Company. Judgment for the defendants on plaintiff's refusal to plead after a demurrer to his first count was sustained and a motion to require him to make more specific the other counts was granted, and plaintiff appeals. Judgment on the first count affirmed, and on the other counts reversed and remanded.

T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant. Judson, Green & Henry, of St. Louis, for respondent.

BLAIR, J.

This is an appeal from a judgment for defendant in the Macon circuit court in an action for libel. The petition contained five counts. To the first the trial court sustained a general demurrer, and to the other four sustained a motion to make more definite certain allegations of extraneous matter designed to show the sinister meaning of certain expressions used in the publications or cartoons forming the basis of the cause of action in the respective counts in which they were set forth. Appellant refused to plead further after these rulings, and a single final judgment on all counts was rendered.

Appellant assigns as error: (1) The ruling sustaining the demurrer to the first count; (2) the ruling sustaining the motion to make more definite and certain the second, third, fourth, and fifth counts; and (3) the entry of a final judgment on all counts instead of a judgment of dismissal as to those which had been assailed by the motion filed.

I. Relying upon Houston v. Pulitzer Pub. Co., 249 Mo. 332, 155 S. W. 1068, and Jones v. Pulitzer, 256 Mo. 57, 165 S. W. 304, respondent contends the trial court had no jurisdiction of it, and that accordingly the judgment should be affirmed. The authorities cited would be applicable and produce the result contended for had not defendant waived the jurisdictional objection. To the original petition respondent filed its plea to the jurisdiction. This was overruled. Thereupon respondent demurred generally to the petition, making no reference to jurisdiction. This demurrer was sustained. Subsequently, an amended petition was filed, and respondent again, without mentioning the matter of jurisdiction, filed a general demurrer to the first count and a motion to make more definite and certain the remaining counts of the amended petition. The filing of the demurrers and motion mentioned constituted a general appearance waiving the objection to jurisdiction of respondent.

II. The publication complained of in the first count is as follows:

"How to Defeat Walsh.

"Two difficulties certain to be encountered under the direct primary law were early foreseen. There might not be a full vote, and, with a multiplicity of respectable candidates, it might easily be possible for a gang candidate, uniting all the elements having questionable interests to serve, to secure the nomination.

"The new system is to be tested in these respects at the very outset in the case of the circuit attorney. In the person of Henry M. Walsh there is a conspicuously objectionable candidate. He has no qualifications for the office. His political sponsors and associates are men whom the decent citizenship of St. Louis despises. His nomination would be a party shame; his election a public shame.

"There are several other candidates, all of them so far as is known, men of good character. If they remain in the field and the vote is small, Walsh is likely to be nominated, for he has a compact, though a deluded, following. If the vote is large, there is still danger of Walsh's success for the elements which oppose him will be divided.

"Direct primaries lay an important responsibility upon the people. They call not only for public virtue and wisdom, but for public sagacity. The people themselves, entering upon the duty of political management, must manifest the qualities of political managers. The well-disposed must not scatter and dissipate their energies. If they do they are lost and the worst phase of the old caucus and convention system, without any of its redeeming qualities, will be re-established.

"Walsh can be defeated at the primaries on August 4, if the people who object to him and his backers will unite upon William C. Connett."

The extraneous facts alleged and the innuendoes are, substantially and in legal effect, identical with those in the petition in Walsh v. Pulitzer Pub. Co., 250 Mo. loc. cit. 146 et seq., 157 S. W. 326, Ann. Cas. 1914C, 985. In that case the parties were the same as those in this case, and the publication there considered was and is strikingly like that set out in the first count of the petition. So far as allegations of facts are concerned, those in the article complained of in this case are not open to any objection not considered in the decision cited. The added matter in so far as complaint is made of it is inconsiderable and is matter of opinion. The questions presented on the first count in this case were substantially decided in Walsh v. Pulitzer Co., supra, and on the authority of that decision the judgment in this case on the demurrer to the first count is affirmed.

III. It is contended the ruling sustaining the motion to make more definite and certain four counts of the petition was incorrect. In view of the questions presented by counsel, it is unnecessary to copy the whole of these counts or the publication and caricatures upon which they are, respectively, founded. It is sufficient to say that each of these publications discussed or depicted or referred to plaintiff and his candidacy for the circuit attorneyship of the city of St. Louis, and did so in connection with what the articles and caricatures called or referred to as the "Butler gang," the "Butler-Daley-Miles gang," or "combination," or equivalent expressions. The motion was not directed to these allegations, but to others, appearing in each count assailed by the motion, substantially as follows:

"Plaintiff states that on...