240 Mo. 575 | Mo. | 1912
Libel in the Butler Circuit Court. Suit brought November 3, 1906. Plaintiff was cast on demurrer to his petition in 1908. The alleged libel lies in a circular, an appeal to their fellow Democrats of Butler county by Henry and John Lacks, published by defendant November 8, 1904, and which publication, prefixed by certain head-notes and explanation, was followed by a reference to political conditions in that county — the whole, as set forth in the petition, read..ing:
SAM PHILLIPS ACCUSED.
H. and J. Lacks of Poplar Bluff Appeal to Democrats to Withdraw Support.
Special Dispatch to The Globe-Democrat.
Poplar Bluff, Mo., November 7.
A serious split in the Democratic ranks in Butler county occurred yesterday when the following circular was brought out, signed by Henry and John Lacks, two prominent Democrats with a large following, who are opposing Sam Phillips, the Democratic nominee for Representative from this district.
“Dear Friend: Knowing that you are and always have been a Democrat, with the convictions of right and wrong, and also knowing that you have known us as men of the same convictions, we address you as our personal friend as holding these same views, and also as a straight-forward [sic] Democrat. Our campaign this year has been fought in our State against boodle and boodleism, and we know that you want our county polities fought out on the same line. Now what we want to say to you is this:
“We want you to know that Ed. L. Abington, chairman of the Democratic county committee, and Geo. C. Orchard and others of the same class have gone into a contract, as admitted by them with the knowledge and consent and approval of Sam Phillips, Democratic candidate for Representative, with the lower element of the negroes of Popular Bluff, agreeing with the negroes that they (Abington, Orchard, Stanley, Phillips), will petition the Governor to pardon out of the penitentiary a negro convict who has, before two courts, pleaded that he was guilty of grand -larceny, and who is now serving a term for that crime. The promise was made by Orchard, Abington, Phillips and company to the negroes that Sam Phillips should, in return for this good work, get the negroes’ influence and votes in this election. We got word of this basest of criminal boodleism and set out to find the real facts in the ease, and upon the closest investigation we were horrified to find that the facts bear out the report as to the agreement-' and the persons implicated in it. We learned that the petition for the pardon had already been gotten up and signed and handed to the Governor, when he was here about a week or moré ago, and that the Governor now has the petition, and that he would, act upon it immediately after the election. When the leaders in this disreputable combine found that we had learned of their*582 unlawful and unwholly [sic] agreement they sent word to Henry Lacks by Bert Stanley, saying that Orchard had done all this, and that he did it to get the Republican (black, we suppose) votes. We know that Orchard was implicated already, but we want you to know that there are others implicated as well as Orchard. When we. learned of this corrupt agreement we endeavored to see Sam Phillips and ascertain his connection therewith. He was then out of town, but on returning in tne evening and being told of the disclosure in a bunch of this combine, with some other good men, brazenly admitted that while he was not sure that he had signed the petition, he would do so if necessary, and that he would do all in his power to get the negro pardoned. We have these facts from several reliable sources, and know them to be true. The brother of the negro himself said he had such a promise.
“We sent a message to Prosecuting Attorney Price Stone of Jefferson City asking him to call on the Governor and telephone the names on the petition. This he could not do as he said the petition had not been filed and that the Governor had the same with him in St. Louis, so that we cannot advertise the petition at this time. Now we want to say to you as our friend and what we say is friendship for you as well, and as Democrats that we hope you will not tolerate and submit to this sort of boodleism in Butler county. This negro was a self-admitted criminal, and under the corrupt agreement made by the self-constituted leaders is being sent back to Butler county to prey on the law-abiding public in exchange for a few negro votes for Sam Phillips. Is this Democratic? We say, No. We say it is boodleism and nothing but boodleism. We want to say that we know of no other Democratic candidate that is implicated in this corrupt agreement. We believe there is no other. We are Democrats and are for all other Democratic nominees; but we cannot support Mr. Phillips on account of his part in this corrupt alliance with the low class of the negroes, and we ask you as our friend and as the friend to pure government and honest politics, ¡and as a true and tried Democrat, that you do all you can. as Democrat in the face of the facts to keep our party clear of corrupt officials.
“Yours very truly,
“(Signed) “Henry LAcks,
“John Lacks.”
This city is wrought up to fever heat and the outlook at the present time is for a decisive victory for the entire Republican ticket.
The substantive averments of the petition are that defendant publishes a paper called the St. Louis Globe-Democrat, of large circulation in Butler and surround
“And plaintiff alleges that defendant well knowing such fact and intending wickedly and maliciously to injure plaintiff in his good name, fame and credit, and to bring him into public hatred, scorn, ridicule, contempt, infamy and disgrace, and to deprive him of the benefits of public confidence, and to cause it to be believed by his neghbors and among good and worthy citizens of the State of Missouri, that plaintiff had been guilty of corrupt, dishonest and dishonorable and criminal conduct in and about the soliciting, procuring and obtaining votes for and upon behalf of one Sam Phillips, who was the regularly and 'lawfully nominated candidate for the office of Representative in the Lower House of the General Assembly of the State of Missouri, to be voted for as such at a regular and legal State and county election to be held in the county of Butler and State of Missouri on the 8th day of November, 1904, and in order to cause it to be believed by said hereinbefore mentioned persons that the plaintiff had been guilty of criminal conduct and practices, and of boodleism and bribery in order to induce qualified voters at such election to vote for said Sam Phillips as and for said office, and in order to cause it to be believed by said persons hereinbefore mentioned and-the public generally that the plaintiff had been guilty of a violation of the criminal practice act and laws of the State of Missouri then in force pertaining to elections, and had been guilty of the crime of bribery, by directly or indirectly giving, offering, promising to procure or endeavoring to pro*584 cure a valuable consideration (and an award) [sic] to or for legally qualified voters at said election so to be held as aforesaid, in order to induce said voters to vote for the said Sam Phillips for said office of Representative or member of the General Assembly of the State of Missouri, and intending to vex, oppress, impoverish and wholly ruin the plaintiff, did, oh the 8th day of November, 1904, in the newspaper known as St. Louis Globe-Democrat, publish of and concerning the plaintiff a certain false, wicked, malicious, defamatory and libelous article, which said article was thereafter by the defendant wickedly published and circulated, to-wit: to the number of more than one hundred thousand copies throughout the county of Butler in said State and throughout the entire State of Missouri, and throughout the United States generally as follows, to-wit:” (Here follows the publication hereinbefore set forth).
The further allegations are that the statements made in the circular were well known by defendant to be absolutely false and untrue; that they were published with the malicious and express purpose of defaming and injuring plaintiff; that the Globe-Democrat is generally considered of great influence and power and is reasonably worth more than $1,000,000; and that by reason of the premises plaintiff has been brought into public hatred, scorn, ridicule, contempt, infamy and disgrace, has been deprived of public confidence, has suffered humiliation, pain and anguish of mind, and in his reputation — wherefore he has been damaged in the sum of $100,000 actual and $100,000 punitive damages.
(Nota bene: The words “and an award,” appearing in parenthesis, whatever they may mean, were inserted by leave of court by way of amendment, after demurrer filed.)
Eliminating expansive and argumentative matter from the demurrer, its gist is a general challenge' to
As said, the court sustained it, and plaintiff, refusing to plead over, stood on his petition, suffered judgment and comes up by appeal.
We are of opinion the demurrer was badly ruled. It is a trite doctrine that a demurrer concedes the truth of all facts, not absurd or impossible, well pleaded. It does not concede the truth of mere illustrations, conclusions, comments or argumentative allegations made by the pleader.
We must assume then, on demurrer, that the facts stated in Lacks ’ circular relating to Orchard are false, for plaintiff makes that averment in his petition. What are those facts as given tang and flavor by the descriptive epithets used by the writers of the circular? Briefly that Orchard with other named “self-constituted leaders” of the Democratic party, went “into a contract” with “low” negroes of Poplar Bluff to get, or at least try to get, by way of petition, a pardon for a self-confessed negro thief then in the penitentiary. In return for that “good work” the agreement ran that said negroes were to vote and give their influence to the Democratic nominee for the Legislature at the election shortly approaching. The circular, in effect, goes on to charge that such contract was entered into with and “promise” made to the negroes, and that a petition for a pardon had actually been signed and sent to the Governor. In other words, the agreement had been performed on the part of Orchard' et al., whereby the thing had reached a stage where there was nothing left but for the Governor to act upon the petition which he would do after the election, and for the negroes to perform on their part. The circular says the agreement was made with the approval of the Democratic candidate- for the Legislature, who, when charged with consenting thereto, had admitted in a “bunch of the combine” that he would
It will be observed that Orchard was not a candidate for any office in the gift of the people, and that the main object of the circular was to defeat Mr. Phillips at the polls. Orchard cannot take advantage of the libel, if any, on Phillips. [Diener v. Chronicle Pub. Co., 230 Mo. l. c. 625 et seq.] He can only complain of a libel on himself. But a blow may be so aimed at one man as to intentionally hit another. One may kill two birds with one stone in libel and the circular shows that is what was likely to happen in this case. The question, then, whether the blow was wrongfully aimed is up to be reckoned with.
A man’s good reputation is within the protection of the law. It would be a sad commentary on the law if it did not sedulously protect a citizen’s right to a good reputation from wrongful attacks precisely as it sedulously protects his other property rights from like attacks. His life, his limb, his. real estate and moveables, are in the keeping of the" same laws that shield his reputation. Now, a dispassionate and intelligent reading of the circular, as reprinted by defendant, tells the story, among others, that its writers' wanted the world to know that Orchard had been guilty of moral turpitude, of conduct forfeiting his right to a reputation as a good citizen and good man in matters of lively concern to the public. If he did in fact, or substantially or through others, what the circular says he did then every word of condemnation was well bestowed, all the licks of the Lacks were well laid on, and they and defendant did excellent and prime public service in publishing the facts and comments to the world in connection with the election to be held that day* All of which is saying no more than if the facts stated by the circular are true, then the comment was timely, however sharp. But if Orchard is falsely accused, what then? His petition says the circular was false. That means he took no part in the negro dicker and made no such promise. That is the view, as said, we are to take on demurrer to his petition, and, in that view of it, was the circular not well calculated to wrongfully take from him his good fame and reputation? -
To dangle a pardon for a thief before the eyes of the low companions and friends of the thief as an inducement for their votes at a public election, as one would hold out an ear of corn to an ox or ass to halter
There are many technicalities and niceties in the law of libel and slander involving the offices of inducements, innuendoes, colloquiums and nice shading in the definition of terms. The subject-matter is tender, society is not organized on an ideal basis, men are not perfect and the law doing the best it can seeks practical and attainable results, keeping in mind not only the rights of the individual man but the good of society at large. He would he a bold judge who would say that some of the learning is not incomprehensible or that there is not much discord in the cases. It seems settled that each ease, should stand on its own facts, since the language used is rarely the same. Such is the rule in the kindred matter of interpreting wills.
Libel is as difficult of definition as fraud or negligence. There are many pointed ones in the books, but all of them are necessarily couched in general language. In Missouri the lawmaker has given us one, good enough for óur purpose, viz.:
“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, or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.” [R. S. 1909, sec. 4818.]
Any published writing that fills' the bill of that
It is aptly charged in the petition that the alleged libelous article is one of that character. We think on. its face it meets that statutory definition on demurrer; for, if false, does it not plainly indulge in aspersion, calumny, defamation? Are its arrows, on that theory, not winged and tipped with biting epithets and is its studied terminology not that of denunciation and detraction? Among good people, keenly alert to a clean election of good officials and a decent and manly performance of the most solemn duties of good citizenship in casting their ballots for the general weal, the natural and certain tendency of a false circular like that in hand is alleged to be, would be to expose Orchard to public hatred, contempt and ridicule, or to deprive him of the benefits of public confidence and social intercourse, for moral turpitude is brought home to him by the charges. Even in polities to do evil that supposed good may come of it; and the end justifies the means, are not acceptable precepts among right thinking people.
The law is that defamatory words published of one, if false, are actionable — keeping steadily in mind the definitions of “libel” and “defamation” heretofore given. [McGinnis v. Knapp & Co., 109 Mo. 131; Farley v. Publishing Co., 113 Mo. App. 216; Julian v. Star, 209 Mo. l. c. 89 et seq.] Wherefore we have no call at this time to pass on the question whether the circular also charges a crime under the Corrupt Practice acts relating to elections; for the demurrer, as we have shown, does not break on that question as decisive ; and it will be time enough to pass on it when the .case, if ever, reaches an appellate court on the evidence and instructions and such question be well lodged ;in the case for decision.
Jt is also argued for respondent that on the very Tace of the circular the thing cured itself, that the antidote went with the poison, if any- — that is that self-
We pause to remark, by way or moralizing, that the antidote (or other palliative) theory must be well looked to when called into use; for,' if I wrongfully wound a man it stands me smartly in hand to see to it that I put oil, not salt and pepper, in the wound. [Morse v. Printing Co., 124 Ia. l. c. 717.]
But this view of the matter is but a phase of' the proposition just discussed and' ruled against respondent. We hold that the entire libelous sting in the circular does not lurk coiled up in the words “boodle,” “boodleism” and “bribery,” that is, in the charge of a commission of a crime, qua crime, but lies as well in the whole article, which, if untrue, covers the statutory elements constituting a libel as hereinbefore determined. And the pleading with the innuendoes seems broad enough to take in that view of it. [See authorities cited by appellant.]
Respondent’s learned attorneys cite us to many cases relating to slander which they contend sustain their position. [Pollard v. Lyon, 91 U. S. 225, a leading case and others from our own court on the same line.] But they inadvertently fall, we think, Into the error of putting libel on the.same foot with slander. The learning on the matter teaches us that many things are libelous per se, when put in writing and published that are not slanderous per se, or at all, when spoken by word of mouth. The kernel of the matter in these
The suit was belated, yet it comes within the limitation period by five days, and the damages asked, $200,000, are so inflamed as to be impossible. Such prayer is but the child’s cry for the moon. It cannot be said, however, that there is no fad or fashion in these latter days in that direction in libel suits. But none of these matters are before us on demurrer.
The judgment is reversed and the cause remanded with the option to defendant to further plead.
