Johnson v. St. Louis Dispatch Co. , 1876 Mo. App. LEXIS 219 ( 1876 )

Bake well , J.,

delivered the opinion of the court.

This is an action for libel. The petition states that defendant is a corporation engaged in printing and publishing a newspaper called the St. Louis Dispatch, in pursuance of its corporate powers, and that whilst so engaged, on August 5, 1874, whilst plaintiff was an attorney at law, practicing his profession in Jefferson City and elsewhere in Missouri, defendant, maliciously intending to deprive plaintiff of his good name as a citizen and in his profession, and to injure his business, did print and publish in the St. Louis Dispatch the following false, scandalous, and malicious defamatory words concerning plaintiff:

“ Then there was IT. B. Johnson ” (meaning plaintiff), “ who disgraced the office now filled by IT. Clay Ewing. He ” (meaning plaintiff) “ was once accused of stealing a stud-horse in Lafayette county, Mo. He ” (meaning plaint-riff) “ sued the party of accusers, and, at the trial, where four Federal office-holders made a part of the jury, a verdict was brought in for the defendants ; thus virtually .saying that he (meaning plaintiff ) “ did steal the horse.”

Innuendo. That this was meant to charge plaintiff with the crime of grand larceny.

The petition says that all the allegations concerning plaintiff in said publication are false, and were published in a regular issue of defendant’s newspaper, by the direction and knowledge of its managers, in due course of defendant’s business.

Damages were laid at $50,000.

To this petition defendant demurred, on the ground that the petition does not set forth facts to constitute a cause of action. The Circuit Court, at special term, sustained the demurrer, and, plaintiff declining to plead further, judgment ■was entered for defendant. On appeal to general term this judgment was reversed. Defendant filed. a motion .for a rehearing, which being overruled., the cause is brought to this court by appeal. . ,

It is claimed by appellant that the Circuit Court at special term properly sustained the demurrer, first, because the words set out constitute no libel per se; and, second, because a corporation cannot be guilty of libel.

1. It is argued by appellant that, to make the words libelous per se, they must plainly charge a criminal offense, and that these words do not charge, plaintiff with grand •larceny, but say that he was accused by others of grand larceny, which is a different matter.

But these words set out in the petition, in their plain signification, say that the publishers of the. alleged libel think plaintiff a horse thief, and it has been held actionable to say of a man: “I think, he is a horse thief.” Dickey v. Andros, 32 Vt. 55. So, asking — as to a forgery — whether the witness did not think it was in Gr.’s handwriting, and asserting, “Ihave shown it.to persons who said it was in Gr.’s handwriting,” was held to show intent to impress a •belief of Gr.’s guilt of forgery. . Gorham v. Ives, 2 Wend. 534. , “ I am told that Muma was the man that killed the peddler, and I believe it” were.the words. Defendant •pleaded that he had been told -so. Held . insufficient. Muma v. Hauner, 1,724 Com. D. B. 293.

The rule that, in actions of. this nature, words must be taken mitiori sensu is now entirely abandoned. The words must be taken in the plain, obvious sense in which they •strike the common understanding, of the every-day hearer. Now, here it is said of plaintiff that he disgraced an honorable office, and immediately after, as a reason apparently for •this serious imputation upon his character, it is alleged that he was -accused of stealing a horse ; that those who charged him with it were by a jury acquitted of-wrong in. making •the charge ; and that this was virtually saying that defend•ant stole the hojse. Instead of. sending-the antidote with. the poison — as in the case of one who says, “ he is a thief, for he owes money which he-won’t-pay,” thus'making it -clear that no felony -is imputed — the- additional words are .rather a barb to the shaft to make it stick in the wound.

. As a rule, a court, on a demurrer to a petition in an faction for libel, will not give a mild construction to the words, but will see if there be anything in the language which, by reasonable intendment,-is actionable. Moover v. Pigott, 4 I. R. C. L. 54. And ambiguous, figurative, and •even ironical- language will be understood according to the fsense it naturally conveys to-the ordinary understanding. One-half -of the English language, as has been truly said, is interpreted • by the context. It has been held-actionable to -say, “You are no thief"and -also to, say of a-man,. “I know what Snell is, and I know-what I-am ; I never'committed the crime against nature.” Snell v. Webling, 2 Lev. 150. - - - -- -

* We arc of opinion that-the-words used-in this publication were equivalent to saying,- “ We believe that H. B. Johnson stole1 a-horse,” and-that these words are'actionable-and libelous per se. The reasons- , given for the belief -by no means ex-plain away the. accusation. In Hall v. Adkins, 59 Mo. 144, the words were -held not actionable because, though "the words spoken charged felony, yet they were accompanied with other words explaining the- real character of the alleged offense, and showing that no felony had been committed. - And this is what-is meant by sending the antidote with the poison. But .to say that-. I believe a man to be a thief is to -say that he is a- thief;. for, -when I say that he is a thief, I only express my .belief of that fact, and am never taken as expressing more than my moral certainty — not my absolute, certainty — -of the truth of the accusation. To say that I believe that a man is a - thief; .that he disgraces an honorable station; that .lie has been accused of larceny, and his accusers acquitted- of all wrong in making .the charge ; and that this acquittal was a virtual conviction of the-accused, is to say more than simply to say he is a thief.

If I speak the truth in saying that the charge of felony was made, the accusers sued, and discharged, this may be in mitigation of damages ; and, if a publisher of a newspaper,, I may perhaps be able to show good reason for making the publication; but the fact remains that I have stigmatized another as a thief, and I am clearly liable to, an action for-the words.

2. We are of opinion that a corporation may be held, liable in damages for libel. If the contrary were the law, there would be almost perfect immunity for the newspaper press — most of the large newspapers of the -world being the-property of corporations. But there can be no question whatever, in the present state of the law, that a printing and publishing corporation is liable to an action of damages-for libel. Corporations are liable for the tortious acts of their agents, when done within the scope of their employment ; and, like natural persons, may be punished by exemplary damages. Gillett v. Missouri R. R. Co., 55 Mo. 315;, Malecek v. Tower Grove R. R. Co., 57 Mo, 17. It was formerly held that a corporation, having no soul, could not-do a moral act, and therefore could not be liable in tort; but that doctrine is entirely obsolete ; and if the case of Childs v. Bank of Missouri, 17 Mo. 213, decides that a corporation cannot be punished in damages, it has been overruled. We do not think, however, that any such point was necessarily involved in that case. The court held there that a. banking corporation cannot be held liable for a malicious, prosecution; but the prosecution of criminals is not clearly within the scope of the powers of a bank. Publishing news is clearly within the scope of the powers of an incorporated publishing company; and, if it abused its power by publishing injurious falsehood as news, it is liable in a civil action precisely as a private individual.

We think, .therefore, that the Circuit Court at special term erred in sustaining the demurrer, and that plaintiff’s petition contains facts sufficient to constitute a cause of action.

The judgment of Circuit Court at general term, reversing the judgment of the Circuit Court at special term and remanding the cause, is affirmed.

All the judges concur.