Warren v. Pulitzer Publishing Co.

• Citation: 78 S.W.2d 404
• Decision Date: 21 December 1934
• Docket Number: No. 31551.,31551.
• Parties: JOHN A. LOGAN WARREN v. PULITZER PUBLISHING COMPANY, a Corporation, Appellant.
• Court: United States State Supreme Court of Missouri

78 S.W.2d 404

JOHN A. LOGAN WARREN v. PULITZER PUBLISHING COMPANY, a Corporation, Appellant.

No. 31551.

Supreme Court of Missouri.

Division One, December 21, 1934.

Appeal from the Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED.

Green, Henry & Remmers for appellant.

(1) Defendant's Instruction 1 in the nature of a demurrer to the evidence should have been sustained because the article was privileged and no express malice was shown. (a) Privilege is a question of law for the court. Cook v. Pulitzer Pub. Co., 241 Mo. 326; McClung v. Pulitzer Pub. Co., 279 Mo. 370; Reese v. Fife, 279 S.W. 415, Callahan v. Ingram, 122 Mo. 355; Brown v. Globe Printing Co., 213 Mo. 611; Peak v. Taubmann, 251 Mo. 390; Lee v. Fuetterer Co., 23 S.W. (2d) 45; Gattis v. Kilgo, 128 N.C. 106; Holmes v. Royal Frat., 222 Mo. 575; Waterhouse v. De Will, 215 Mich. 295. (b) The court should sustain a demurrer when it appears that an article is privileged and no malice is shown. Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Cook v. Pulitzer Pub. Co., 241 Mo. 326; State ex rel. v. Cox, 298 S.W. 837; See cases cited under 3, 4 and 5 on privilege. (2) Matters of great public interest or concern afford the basis of privileged statements or occasions. 26 C.J. 1263; Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Clark v. McBaine, 299 Mo. 77; People's Bank v. Goodwin, 128 S.W. 220; McClung v. Pulitzer Pub. Co., 279 Mo. 398; Diener v. Star, 230 Mo. 613; Cook v. Pulitzer Pub. Co., 241 Mo. 326; State ex rel. v. Cox, 298 S.W. 837; Davis v. Mo. Pub. Co., 19 S.W. (2d) 695; Williams v. Chicago Herald, 46 Ill. App. 655; Bradford v. Clark, 90 Me. 298; Marks v. Blake, 21 Minn. 162; Barber v. Post-Dispatch, 3 Mo. App. 383; United States v. Smith, 173 Fed. 228. (3) The maintenance of fidelity and morality in the conduct of public worship and the sanctity of the church, including the conduct of a minister, is a matter of the greatest public interest and concern, and statement or articles concerning the same are qualifiedly privileged. Landis v. Campbell, 79 Mo. 440; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Barrows v. Bell, 7 Gray, 301; Miller v. Knabb, 5 Pa. Co. Ct. Rep. 636; Kersting v. White, 107 Mo. App. 281; Redgate v. Roush, 61 Kan. 480, 48 L.R.A. 236; Cranfill v. Hayden, 22 Tex Civ. App. 656; Kelly v. Tinling (1865), 1 L.R.Q.B. 699; Simmons v. Dickson, 110 Tex. 230; Fairchild v. Adams, 11 Cush. 549; Shurtleff v. Stevens, 31 Vt. 50; Bass v. Matthews, 69 Wash. 214; Lathrop v. Adams, 133 Mass. 471; State ex rel. v. Cox, 298 S W 837; Slocinski v. Radman, 63 A.L.R. 643. (4) Articles relating to church trials and the action of church tribunals expelling ministers or members, when made public by the church, are qualifiedly privileged as a matter of law. Landis v. Campbell, 79 Mo. 433; Kersting v. White, 107 Mo. App. 281; Redgate v. Roush, 61 Kan. 480, 48 L.R.A. 236; Fairchild v. Adams, 11 Cush. 549; Shurtleff v. Stevens, 51 Vt. 501; Kelly v. Tinling (1865), 1 L.R.Q.B. 699; Lathrop v. Adams, 133 Mass. 471. (5) As the entire record of the church trial was ordered made public by the conference the information became public property and a statement of the facts is as privileged as statements made in the meetings. Redgate v. Roush, 61 Kan. 480, 48 L.R.A. 236; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Brown v. Globe, 213 Mo. 635; Barrows v. Bell, 7 Gray, 301; Miller v. Knabb, 5 Pa. Co. Ct. Rep. 636; Fairchild v. Adams, 11 Cush. 549; Kelly v. Tinling (1865), 1 L.R.Q.B. 699. (6) A newspaper owes a duty to the public to give information on matters of public interest. Cook v. Pulitzer Pub. Co., 241 Mo. 356; United States v. Smith, 173 Fed. 240. (7) Copies of the official records of the conference, duly certified to by the clerk of the conference, who was the official custodian, are admissible in evidence without extrinsic evidence of their authenticity or identity. Fuller v. Robinson, 230 Mo. 22; Radford v. Horton, 207 Mo. App. 609; Zimmerman v. Masonic Aid Assn., 75 Fed. 236; Moore v. Green, 113 Mo. 98; Wilcokson v. Dair, 139 Mo. 660; Nason v. First B.C. Church, 66 Mo. 100; Pettijohn v. Pettijohn, 1 Houghton, 332. (8) Evidence to show the attitude of certain persons toward plaintiff after the date of the publication complained of is not admissible without a showing that such persons had read the article complained of, especially when the information contained in the article had already been freely circulated in the community. An inference cannot be based upon an inference. Kersting v. White, 107 Mo. App. 282; 1 Jones on Evidence, sec. 104; Swearingen v. Ry. Co., 221 Mo. 660; Hayme v. Packing Co., 126 Mo. App. 88; Bigton v. Street Ry. Co., 48 Mo. App. 367; Yarnell v. Ry. Co., 113 Mo. 580. (9) Plaintiff's Instruction No. 2, giving the statutory definition of libel, was erroneous because: (a) It omitted the element of falsity. Orchard v. Globe Ptg. Co., 240 Mo. 589; Julian v. Kansas City Star, 209 Mo. 71; McCloskey v. Pulitzer Pub. Co., 152 Mo. 346; Dobbins v. Railroad, 138 S.W. 682. (b) It failed to tell the jury that the instruction was advisory, they being the judge of the law under the Constitution. Patterson v. Evans, 254 Mo. 293; Roth v. Natl. Newspaper Assn., 192 S.W. 132. (10) Plaintiff's Instruction 5, telling the jury that they might infer that the article was malicious, was erroneous and confusing because it omitted to tell them that if the article was privileged, then malice was not presumed and the plaintiff had the burden of proving malice. Enloe v. Car & F. Co., 240 Mo. 443; Quinn v. Van Raalte, 276 Mo. 100; State ex rel. v. Cox, 298 S.W. 837; Cook v. Pulitzer Pub. Co., supra; Tilles v. Pulitzer Pub. Co., supra; Finley v. Steele, 159 Mo. 304. (11) Defendant's Instruction E should have been given because it explained to the jury the effect of the second Hazel Lamb affidavit and her letter to Bishop Hughes, as far as the question of defendant's malice and good faith were concerned, and limited the effect of the evidence. Hughes on Instructions, secs. 109, 110; Baggers v. Baggers, 127 Mo. 305; Lewis v. Humphreys, 64 Mo. App. 466; Yeager v. Bruce, 116 Mo. App. 473.

Earl M. Pirkey, Knight & Lupton and Gus S. Brown for respondent.

(1) A newspaper has no more rights than an individual would have in publishing the same matter under the same circumstances. Johnson v. St. Louis Dispatch Co., 65 Mo. 542; Morse v. Times-Republican Printing Co., 124 Iowa, 707; Foster v. Scripp, 39 Mich. 376; Am. Pub. Co. v. Gamble, 115 Tenn. 663; Scheckell v. Jackson, 10 Cush. 25; Kimball v. Post Pub. Co., 19 L.R.A. (N.S.) 865, 199 Mass. 248. Before a publication can be qualifiedly privileged it must appear that the person making the publication was under a duty to make it, and under a duty to publish it to the person to whom it was published. Such duty is not shown by the mere fact that the person to whom, by whom, and concerning whom, a defamatory publication is made, all sustain common membership in the same church organization. Ballew v. Thompson, 259 S.W. 857; Shurtleff v. Parker, 130 Mass. 297; Haynes v. Robertson, 175 S.W. 293; York v. Johnson, 116 Mass. 484; Ritchie v. Widdemer, 35 Atl. 827; Lovejoy v. Whitcomb, 55 N.E. 323; Carpenter v. Willey, 26 Atl. 490; Hassett v. Carroll, 81 Atl. 1019; Holt v. Parsons, 23 Tex. 19; Coles v. Thompson, 27 S.W. 47; Hocks v. Sprangers, 87 N.W. 1101; Hellstern v. Katzer, 79 N.W. 430; Gilpin v. Fowler, 96 R. & R.C.C. 885; Highmore v. Harrington, 111 R. & R.C.C. 583. The law designates with particularity to whom communications must be made to be qualifiedly privileged. Usher v. Severance, 20 Me. 15; Morse v. Times-Republican Printing Co., 124 Iowa, 707. (a) A communication is not necessarily privileged merely because the occasion on which it is published is privileged. Sullivan v. Strahorn, Hutton, Evans Comm. Co., 53 S.W. 914; Natl. Cash Reg. Co. v. Salling, 173 Fed. 26; Hines v. Shumaker, 52 So. 707; Schwartz Bros. v. Even. News Co., 87 Atl. 707; Fitchette v. Sumter Hardwood Co., 142 S.E. 834. A mere nonjudicial and ex parte affidavit, libelous in its nature, has always been held to be unprivileged. King v. Townsend, 12 Law Rep. 126; Maloney v. Bartley, 170 Reprint 1158; Hosmer v. Loveland, 19 Barb. 116; Nix v. Caldwell, 81 Ky. 298; Meeker v. Post Print. & Pub. Co., 55 Colo. 357; Townshend on Slander & Libel (4 Ed.), 748; Odgers on Libel and Slander (6 Ed.), 202; Ritschy v. Garrels, 195 Mo. App. 674. A report of matters of a distinctly private nature is not privileged. 17 R.C.L. 349; Kimball v. Post Publishing Co., 199 Mass. 251; Bidwell v. Rademacher, 38 N.E. 881. A report of a grand jury meeting is not privileged. McCabe v. Cauldwell, 18 Abb. Pr. 378; Bennett v. Stockwell, 197 Mich. 54; Sweet v. Post Pub. Co., 215 Mass. 454. It is the duty of everyone, whether individual or corporation, to forbear to publish false, defamatory words of another. Goldborough v. Orem & Johnson, 103 Md. 680; New York Evening Post v. Chaloner, 265 Fed. 210; Byam v. Collins, 19 N.E. 78; Joannes v. Bennett, 87 Mass. 172; Coxhead v. Richards, 69 R. & R.C.C. 548. It is no defense for having published a libel that one was authorized by a third party (or organization) to do so. Weston v. Barnicoat, 175 Mass. 457. A report of a trial published a long time after the trial ends, if libelous, is not privileged. Brown v. Globe Printing Co., 213 Mo. 649. Headlines, if not "a fair index of a true report," are not privileged. Brown v. Globe Printing Co., 213 Mo. 641; Brown v. Knapp & Co., 213 Mo. 689; Dorr v. United States, 195 U.S. 138; Hays v. Press Co., 127 Pa. 642. Such a report is not privileged if it contains defamatory matter from any source other that the trial. Brown v. Globe Printing Co., 213 Mo. 645; Brown v. Knapp & Co., 213 Mo. 687. (b) If a communication is made on qualifiedly privileged occasion, with malice, the defense of qualified privilege is lost. Morse v. Times-Rep. Printing Co., 100 N.W. 872; White v. Nicholls, 3...