Opinion
No. 38849.
October 9, 1944. Rehearing Denied, November 6, 1944.
1. VENUE: Disqualified Judge: Transfer to Next Adjoining Court. When the judge of the Circuit Court of Jefferson County disqualified himself it was proper for him to transfer the case to Mississippi County, which was in the next adjoining circuit.
2. LIBEL AND SLANDER: Only Substantial Truth Required. Only the substantial truth of a defamatory article need be proved by the publisher, and not every detail. The headlines were in accord with the body of the article.
3. LIBEL AND SLANDER: Evidence: Admission of Newspaper Article Not Error. Plaintiff is in no position to complain of the admission of a newspaper article to show general knowledge of gambling conditions. And no proper objection was made.
4. LIBEL AND SLANDER: Witnesses: Evidence: Refusal of Testimony Within Court's Discretion. The trial court was within his discretion in refusing to permit the testimony of two of plaintiff's witnesses.
5. LIBEL AND SLANDER: Evidence: Rejection of Campaign Editorial Not Error. It was not error to reject part of a campaign editorial in defendant Bell's newspaper criticizing plaintiff's campaign tactics.
6. LIBEL AND SLANDER: Evidence: Gambling Notoriety Evidence Competent. Evidence as to the widespread existence and general notoriety of gambling while plaintiff was prosecuting attorney was competent.
7. LIBEL AND SLANDER: Evidence: Rejection of Statement Proper. It was proper for the court to reject a written statement obtained when plaintiff compromised a suit against a reporter, which statement did not dispute the testimony of the reporter as a witness.
8. LIBEL AND SLANDER: Evidence: Other Articles Properly Rejected. Articles in other newspapers were properly rejected.
9. LIBEL AND SLANDER: Instruction Not Misleading. Defendant's instruction as to derogatory publications of others was not misleading when read with another instruction.
10. LIBEL AND SLANDER: Trial: Evidence: Reading from Dictionaries Not Error. The record is not sufficient to show any error in reading to the jury from dictionaries which had not been offered in evidence.
11. LIBEL AND SLANDER: Candidate for Office: Qualified Privilege: Interpretation of Article by Jury. An article criticizing a candidate for office is subject to the rule of qualified privilege. The article must be construed as a whole and it was the province of the jury to interpret it. There was evidence to support the finding of the jury for the defendants.
Appeal from Mississippi Circuit Court. — Hon. James C. McDowell, Judge.
AFFIRMED.
Frank Dietrich and R.E. Kleinschmidt for appellant.
(1) The judge unlawfully and wrongfully sent the case to Mississippi County, which was just as inconvenient as Pemiscot. Sec. 1062, R.S. 1939; Irons v. Express Co., 300 S.W. 283; State ex rel. v. Higbee, 43 S.W.2d 825. (2) The court erred in overruling that portion of appellant's motion to strike portions of the second amended separate answers of the defendants, alleging that the article was "true in substance and in effect," and which purported to justify only some and not all of the libelous portions of the article, there being no allegation in the answers that the Republican Committee had repudiated plaintiff because he had raised the gambling issue, as alleged in the libelous article, and there having been no allegation in the answers that there was gambling in Jefferson County except at the two clubs mentioned in the article. But the court permitted evidence of all sorts of hearsay evidence as to other forms and places of gambling. The plea of justification as well as the proof must be as broad as the charge before the evidence is competent or the issue properly submitted to the jury. 37 C.J., p. 45, sec. 379; Nelson v. Musgraves, 10 Mo. 648; Meriwether v. Knapp Co., 120 Mo. App. 354; Reese v. Fife, 279 S.W. 415. (3) It was improper for the court to permit respondents to offer in evidence articles in the St. Louis Star in 1921, seventeen years prior to the libelous articles herein, 37 C.J., p. 73, sec. 470; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436, 158 S.W. 54; Warren v. Pulitzer Pub. Co., 78 S.W.2d l.c. 412. (4) As plaintiff's general reputation for honesty, morality and good citizenship is in issue in every slander or libel case, it was error for the court to refuse to permit Lloyd Murphy, a member of the State Patrol, 30 years of age, to testify as to appellant's good reputation on November 7, 1938. Yager v. Bruce, 116 Mo. App. 473; Williamson v. Eckhoff, 170 S.W. 322; 37 C.J., p. 60, sec. 422; Sec. 1895, R.S. 1939. (5) A plaintiff in a libel case is entitled to offer in evidence other articles in same newspaper or written by same defendant, relating to the same subject matter, and therefore the court should have permitted appellant to offer in evidence the editorial in The Potosi Journal, published by the respondent Bell, on November 3, 1938, pertaining to the same subject matter as in the libelous article. Julian v. Kansas City Star, 209 Mo. 35; 37 C.J., p. 71, sec. 462, note 77. (6) It was the rankest sort of hearsay evidence, and incompetent, which the court permitted from respondents' witnesses as to gambling houses in DeSoto and other parts of Jefferson County. 37 C.J., p. 45, sec. 379; Anthony v. Stephens, 1 Mo. 254; Nelson v. Musgraves, 10 Mo. 648; Meriwether v. Knapp Co., 120 Mo. App. 354; Arnold v. Jewett, 125 Mo. 241; Rose v. Tholborn, 153 Mo. App. 408; Yager v. Bruce, 116 Mo. App. 473; Wright v. Kansas City, 187 Mo. 678; Reese v. Fife, 279 S.W. 415. (7) And even if the article had merely charged open and notorious gambling in Jefferson County, without alleging appellant's guilty knowledge and consent thereof, evidence of such gambling, even without violating hearsay rule, would not have been competent, because it is not sufficient answer to a charge of libel to show that the publication only accuses the plaintiff of having done that which he may legally do. Seested v. Printing Co., 31 S.W.2d 1045. (8) None of the evidence objected to herein on ground of hearsay came within any of the exceptions to the hearsay rule. 22 C.J. 199, sec. 166; Lynch v. Railroad Co., 61 S.W.2d 918. (9) It is hornbook law that a witness, especially on cross-examination, may be impeached by showing that he has made some previous contradictory statements, either oral or written, as to any material fact testified to by him, and therefore it violated the fundamental principles of law for the court to prohibit appellant from showing, on cross-examination of respondents' witness Fitzgerald, the reporter who wrote the original libelous article for the St. Louis Globe-Democrat, that he had stated previously a number of times, both orally and in writing, that the original article as well as the reprints thereof were false and that appellant had been damaged thereby. 70 C.J., p. 800, sec. 1005, p. 1053, sec. 1240. (10) There were two main libelous charges contained in the articles herein involved, first that the appellant "permitted" two certain gambling houses to operate "unmolested," meaning that he did absolutely nothing to stop them, the other being that the Republican Committee of Jefferson County had warned him to stay away from the gambling issue and had repudiated him because he did not do so; therefore, any evidence which did not tend to prove one or both of those charges was improperly admitted. Sotham v. Telegram Co., 239 Mo. 606; Rail v. Newspaper Assn., 192 S.W. 129; Cook v. Globe Printing Co., 227 Mo. 471; Reese v. Fife, 279 S.W. 415. (11) A plaintiff in a libel case is entitled to offer in evidence other articles in same newspaper, or written by the same defendant, relating to the same general subject matter. Julian v. Kansas City Star, 209 Mo. 35; 37 C.J., p. 71, Sec. 461, note 77; Edwards v. Nulsen, 152 S.W.2d 28, 347 Mo. 1077. (12) In libel or slander cases any evidence of facts or circumstances which reasonably tend to show actual malice is admissible. 37 C.J., p. 77, sec. 479, note 1; Julian v. Kansas City Star, 209 Mo. 75; Cook v. Globe Printing Co., 227 Mo. 471. (13) Instruction A-1, given on behalf of respondents, was erroneous, not only because it contained the words "in substance" without informing the jury what was meant thereby, but also because it submitted to the jury the defense of justification without any evidence on which to base it, and also because it permitted the jury to consider the absence of malice on the part of respondents as a complete defense. "true in substance", or "substantially true" in an instruction. Atteberry v. Powell, 29 Mo. 429; Christal v. Craig, 80 Mo. 367; Parsons v. Henry, 164 S.W. 241; Yager v. Bruce, 116 Mo. App. 473; Sotham v. Telegram Co., 239 Mo. 606; Rail v. Newspaper Assn., 192 S.W. 129; Jones v. Murray, 167 Mo. 25; Reese v. Fife (Mo. Sup.), 279 S.W. 415, l.c. 426, 427; Morris v. Sailer, 154 Mo. App. 305, l.c. 311; Priest v. Insurance Co. (Mo. App.), 9 S.W.2d 543; Burrows v. Pulitzer Pub. Co. (Mo. App.), 255 S.W. 925. (14) Instruction A-1, given on behalf of respondents was erroneous, not only because it contained the words "in substance" without informing the jury what was meant thereby, but also because it submitted to the jury the defense of justification without any evidence on which to base it, and also because it permitted the jury to consider the absence of malice on the part of respondents as a complete defense. Even if appellant had collected damages from any other person or newspaper, such fact would not have been competent evidence in this case, and the instruction was necessarily erroneous and prejudicial. 37 C.J., p. 93, sec. 522; Arnold v. Sayings Co., 76 Mo. 520 Mo. App. 159; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436, 158 S.W. 54. (15) The headlines of a libelous article are as much libelous, if not more so, than any other portion thereof, and if one changes the headlines or adds anything to a previous article, it is not merely a republication or reprint thereof, but is such reprint with additional matter thrown in. Brown v. Globe Printing Co., 213 Mo. 611. (16) If the headlines of an article are false and libelous, plaintiff is entitled to damages, even though the body of the article is privileged or true. Brown v. Globe Printing Co., 213 Mo. 611. (17) Since the plea of justification must always be as broad as the charge, it was error for the court to submit to the jury any plea of justification in this case, because there was no evidence whatsoever as to several statements in the article. 37 C.J., p. 45, sec. 379; Nelson v. Musgraves, 10 Mo. 648; Meriwether v. Knapp Co., 120 Mo. App. 354; Reese v. Fife, 279 S.W. 415. (18) It is reversible error in any case to permit counsel to argue to the jury matters not in evidence, and this court has severely condemned the reading of a law book, in a libel case, but the reading from a dictionary or an almanac not in evidence is without precedent in Missouri. Heller v. Pulitzer Co., 153 Mo. 205; State ex rel. v. Patton, 77 S.W.2d 857; Wells v. Wells, 144 Mo. 198; Jones v. Murray, 167 Mo. 25.
William G. Marbury and Sam Richeson for respondents.
(1) The court erred in sustaining appellant's motion to strike part of respondents' second amended answer, wherein it was alleged that this same appellant had prosecuted to a final determination a cause of action against the St. Louis Globe-Democrat Publishing Company for the publication of the same alleged libelous article, wherein the jury determined the article was not libelous, which was a complete bar to this action. Art. II, Sec. 14, Mo. Constitution. (2) The alleged libelous article was not libelous per se, because it did not directly impute the commission of a crime by appellant. Cook v. Publishing Co., 241 Mo. 326; State v. Boyd, 196 Mo. 52; State v. Cox, 298 S.W. 837; Stowes v. Western Bently Merc. Co., 140 S.W.2d 714; Tincher v. Natl. Life Accident Ins. Co., 146 S.W.2d 665; Davis v. Mo. Publishing Assn., 19 S.W.2d 650. (3) The plaintiff did not make a case for the jury and the demurrer at close of the whole case should have been sustained, because the article as a whole and as properly interpreted was not defamatory of the plaintiff, and because the uncontradicted testimony showed the truth of the article if it could be said to be defamatory, in that it appeared by the uncontradicted evidence that public gambling existed and was generally known to so exist throughout Jefferson County during the years 1921 and 1922, with no real or substantial interference by plaintiff while Prosecuting Attorney. The gist of the charge was not defamatory and was established in the evidence. Sullivan v. Morton, 337 Mo. l.c. 1094; Diener v. Pub. Co., 230 Mo. 613; Diener v. Pub. Co., 232 Mo. 416; Branch v. Knapp Co., 222 Mo. 580; Wilson v. Bond Investment Co., 46 S.W.2d 922; Hanson v. Bristow, 123 P. 725; Phillips v. Indemnity Co., 28 F.2d 701; Primm v. Ins. Co., 90 N.W. 348. (4) In determining whether an article is or is not libelous, the article must be considered as a whole and the true meaning discerned from its four corners. Particular words and phrases may be singled out and wrenched from the context in order to force a libelous meaning. Diener v. Publishing Co., 230 Mo. l.c. 625; Diener v. Publishing Co., 232 Mo. l.c. 428-429; Hagener v. Publishing Co., 158 S.W. 54, l.c. 61; Clark v. McBaine, 252 S.W. 428; Aldridge v. Zorn, 287 S.W. 650; Davis v. Publishing Assn., 19 S.W.2d 650; Warren v. Publishing Co., 78 S.W.2d 404. (5) The article being in relation to the conduct of a public official again running for office, and being based on substantial truth, was privileged. State v. Cox, 298 S.W. l.c. 841; Diener v. Pub. Co., 232 Mo. 416; Walsh v. Pub. Co., 250 Mo. 142; Epps v. Duckett, 284 Mo. 132. (6) The regular judge, being a brother to one of the defendants, disqualified himself and ordered a change of venue to Mississippi County in a next adjoining circuit, in accordance with the statutes. Secs. 1059, 1062, R.S. 1939. (7) The defendants need not prove every word and phrase to an exact nicety, but prove only that the article interpreted from its four corners is substantially true. McClung v. Pub. Co., 214 S.W. 193; State v. Cox, 298 S.W. 837; Davis v. Mo. Pub. Assn., 19 S.W.2d 650. (8) The jury found the hand bill article in substance was true. Therefore, the question of malice is not an issue at this time. McCloskey v. Pulitzer Pub. Co., 53 S.W. 1087. (9) Evidence as to the general knowledge among people in a community as to the existence of gambling or other practices is admissible to impute knowledge to a law enforcement officer. Conover v. Berndine, 69 Mo. 125; Dickerson v. Chrisman, 28 Mo. 139; State v. Wymore, 345 Mo. 177; Stephenson v. Kilpatrick, 166 Mo. 262; Ashbrook v. Date, 27 Mo. App. 649; Gordon v. Ritenour, 87 Mo. 54. (10) Further, appellant's cross-examination brought out the same evidence. Therefore, appellant cannot complain. Banking House v. Rood, 132 Mo. 263. (11) Respondents' Instruction A-1, when read with other instructions, properly declares the law. Rail v. Natl. Newspaper Assn., 192 S.W. 129; Holmes v. Royal Fraternal Union, 220 Mo. l.c. 580, 298 S.W. 837; McClung v. Publishing Co., 214 S.W. 193. (12) Respondents' Instruction B-2, when read with other instructions, properly declares the law. Arnold v. Sayings Co., 76 Mo. App. 159. (13) Respondents' Instruction G-2 properly declares the law. Taylor v. Moseley, 186 S.W. 634; Atero v. Ewing, 162 La. 453. (14) Appellant's complaint raised in regard to appellant's refused instructions 5 and 8 fails because the instructions attempt to single out certain designated portions of the alleged libelous article which must be interpreted from its four corners. Diener v. Publishing Co., 230 Mo. l.c. 625; Diener v. Publishing Co., 232 Mo. l.c. 428; Hagener v. Publishing Co., 158 S.W. 54; Clark v. McBaine, 252 S.W. 428; Aldridge v. Zorn, 287 S.W. 650; Davis v. Publishing Assn., 19 S.W.2d 650; Warren v. Publishing Co., 78 S.W.2d 404. (15) Reading the dictionaries to the jury was harmless error, if any, and within the discretion of the trial judge. Robison v. Floesch Construction Co., 242 S.W. 421.
In a suit for libel a verdict for each defendant was returned and from the judgments rendered thereon plaintiff has appealed.
At the general election on November 8, 1938, appellant was the Republican candidate and Edward T. Eversole was the Democratic candidate for judge of the circuit court for the Twenty-first Judicial Circuit. Eversole was then prosecuting attorney of Jefferson county and appellant had previously held that office during the years 1921 and 1922. During the campaign, in speeches and paid articles in newspapers and handbills, appellant charged Eversole with being remiss in his duties as prosecuting attorney in the suppression of gambling which appellant claimed was generally known to be prevalent in Jefferson county. On November 7, 1938, defendant John Eversole, a brother of Edward T. Eversole, caused to be printed at the newspaper office owned and operated by the other defendant, Bell, handbills copying an article which had been that day published in a St. Louis newspaper, and distributed the handbills to some of the voters of Washington county, one of the counties composing the Twenty-first Judicial Circuit. This article, upon which appellant's suit against Bell and John Eversole is based, is as follows:
"KLEINSCHMIDT ADMITS HE LETS GAMBLERS OPERATE "Henry Weber, Chairman of the Republican Committee, Says They Have Repudiated Candidate; Eversole to Win by 3800. From St. Louis Globe-Democrat."Robert E. Kleinschmidt, Hillsboro attorney, president of the Bank of Hillsboro, [89] and Republican candidate for Circuit Judge of the Twenty-first Judicial District, who raised the gambling issue in his campaign against Edward Eversole, Prosecuting Attorney of Jefferson County and Democratic candidate for the judgeship, told a Globe-Democrat reporter yesterday he permitted the Lemay Club and the Saratoga Club, gambling casinos, to operate in Jefferson County when he was Prosecuting Attorney from 1920 to 1922.
"Although he permitted the Lemay Club, which was operated by `No Coat' George and Tony Foley, to operate unmolested, along with the Saratoga Club, Kleinschmidt said he attempted to obtain evidence to close them, but that his term of Prosecuting Attorney expired before he was able to present the information to the Jefferson County grand jury.
"Accuses Opponent.
"Kleinschmidt in speeches has charged that the elaborate Biltmore Club, on Gravois road, just outside St. Louis County, has been unmolested during Prosecuting Attorney Eversole's administration. Kleinschmidt also has charged Eversole with failing to co-operate with Gov. Lloyd C. Stark in his campaign to oust slot machines in the county.
"The Twenty-first Judicial District is composed of Jefferson, Iron, Washington, Wayne and Reynolds County.
"Henry Weber, chairman of the Republican County Committee, said the committee had repudiated Kleinschmidt. Weber also said the committee had warned Kleinschmidt to stay away from the gambling issue.
"Hot Campaign.
"Kleinschmidt's gambling charges against Eversole has made the campaign the hottest Jefferson County has experienced in years. While losing Republican support, Kleinschmidt, according to a survey made in Jefferson County, has cut into Eversole's Democratic strength. The county probably will have a Democratic majority of 1600, but Eversole probably will run about 400 behind his ticket.
"Kleinschmidt's raising of the gambling issue has failed to arouse church people. Father E.A. Rogers of DeSoto declared as far as he knew conditions in Jefferson County were about the same as they have been in the last 12 years in which he has lived in the county. Gambling, he said, always has been prevalent in the county, and `that gambling is too prevalent throughout the county.'
"Political forecasters predict Eversole will carry Jefferson County by 1200 and the five counties of the district by 3800 votes. — St. Louis Globe-Democrat, Monday, November 7, 1938."
Appellant filed suit in the circuit court of Washington county. Edward T. Eversole having become the judge of that court disqualified himself and called in the judge of another circuit. On appellant's objection that he had not agreed to the calling in of another judge, the cause was transferred to Pemiscot county. On appellant's motion the cause was remanded to Washington county. Later it was transferred to Mississippi county where it was tried. Appellant opposed the transfer of the case to Mississippi county and applied to the Supreme Court for a writ of prohibition, which was denied.
The amended answers upon which the case was tried admitted the reprinting and distribution of the article and pleaded privilege and justification, in that the article was true in substance.
Appellant testified in his own behalf. He said the reporter talked to him about gambling conditions during his term of office; that he knew about gambling at the Saratoga club; that he tried to get evidence, had the place raided in August, 1922, and prosecuted some of the frequenters; he talked with the reporter about the Saratoga club; he thinks the Lemay club was started later. His testimony indicates he was not certain about the name or whether there was one club or two. He said the word "permit" was not used in his talk with the reporter; denied that the Republican committee had repudiated him and testified to a decrease in his law practice after the publication of the article. He also told of prosecutions conducted by him for different crimes.
Appellant offered evidence that his reputation, generally and as an efficient prosecutor, was good, and that the publication had damaged him by causing a decrease in his law practice.
Respondents offered evidence tending to prove the existence of gambling at a place called the Lemay club and at many other places in Jefferson county while appellant was prosecuting attorney. Some of the witnesses testified to participating in or witnessing such gambling; many others testified that gambling was widespread and [90] generally known by the public. Respondents offered as a witness the reporter who wrote the article complained of. In substance, he said: that he talked with appellant about the gambling issue he had raised and the charges he had made against his opponent; also about the existence of gambling in Jefferson county during appellant's term as prosecuting attorney; that appellant told him that he knew that one gambling club, the Saratoga, was operating during 1921 and 1922; that in the last part of 1922 he got evidence against it, but his term of office expired before he could present the evidence to a jury; that they talked about the Saratoga club, but really meant the Lemay club, the Saratoga club not being started until after appellant's term of office; that the word "permit" was not used in the conversation, but witness used the word in writing the article in the sense that appellant knew of the gambling during 1921 and 1922, but didn't get evidence until the last part of 1922, too late to use it during his term. He also said that Henry Weber, Chairman of the Republican committee, told him the committee had repudiated appellant and warned him to stay away from the gambling issue. On cross-examination by appellant this witness said that certain portions of the article were untrue, that it was not published in the St. Louis newspaper exactly as he wrote it and that he had so stated after it was published.
Appellant's brief contains assignments of error numbered from one to twenty-seven, substantially reiterated in the same number of "points and authorities." They are mainly of a general nature, unnecessarily verbose, and many of them contain no reference to the page of the record showing the alleged errors complained of. This has imposed an undue burden on the court to search out and ascertain just what appellant contends.
Appellant first complains that the court erred in sending the case to Mississippi county, his argument being that the place of trial was inconvenient to the parties. He cites Section 1062, Revised Statutes Missouri 1939 [Mo. R.S.A. 1062] and the cases of Irons v. American Express Co., 318 Mo. 318, 300 S.W. 283, and State ex rel. v. Higbee, 328 Mo. 1066, 43 S.W.2d 825. Section 1062 requires the cause to be sent "to some county in the same, adjoining or next adjoining circuit, convenient to the parties," etc. Mississippi county is in the Twenty-eighth judicial circuit which is in the next adjoining circuit to the Twenty-first. Since the judge disqualified himself he could not have sent the case to another county in his own circuit and there is nothing in the record to show an abuse of discretion in sending it to Mississippi county. Irons v. American Express Co., supra, is squarely in point and squarely against the contention of appellant. The other case cited does not decide the question.
Appellant complains that the court erred in refusing to strike from the answers the allegation that the article was true "in substance and effect," and to the same language in respondents' instructions. He also complains of the giving of instructions F-1 and G-1 for respondents on the ground that they assume that the article complained of was an exact re-publication of the article previously published in the Globe-Democrat and that this is untrue because the headlines are different. He also contends that respondents' evidence was insufficient to sustain the plea of justification and that the court erred in refusing appellant's instruction 5 and modifying his instruction 8. These last two instructions would have told the jury, in substance, that respondents, to prove their plea of justification, must prove that the article was an exact reprint of the Globe-Democrat article, even as to headlines; that it was not a question of gambling while appellant was prosecuting attorney, but whether appellant told the reporter that he permitted the Lemay and Saratoga clubs to operate unmolested, and that the Republican committee had repudiated him and warned him to stay away from the gambling issue.
All the contentions mentioned in the preceding paragraph are based upon the erroneous idea that respondents were compelled to prove the truth of the article in every detail, inoffensive as well as offensive portions. Such is not the law. [McClung v. Pub. Co., 279 Mo. 370, 214 S.W. 193; State ex rel. v. Cox, 318 Mo. 112, 298 S.W. 837; Davis v. Mo. Pub. Assn., 323 Mo. 695, 19 S.W.2d 650.] Of course, false and libelous headlines to an otherwise inoffensive publication may furnish the basis for an action for libel, but there is nothing in the headlines of the article in evidence here which is not contained in the body of the article.
[91] Complaint is made of the introduction in evidence by respondents of an article published by a St. Louis paper while appellant was prosecuting attorney. It was admitted for the purpose of showing general knowledge of gambling conditions. Appellant is in no position to complain, for, in his petition, and for the purpose of showing general knowledge of gambling during his opponent's term as prosecutor, he alleged the publication of a similar article in another St. Louis paper. In his testimony appellant said his charges against his opponent were based upon a newspaper article. Besides, when the article was offered by respondents, appellant did not object on the ground of hearsay, but that it was not defensive. Appellant then said: "I don't deny anything in there."
Appellant complains of the court's refusal to permit a witness, who was only ten years old when appellant was prosecuting attorney, to testify to appellant's reputation as a prosecutor, and to the court's refusal to permit a lay witness, who had not qualified, to testify as to appellant's loss of law practice. The ruling was within the court's discretion in each instance. Several other witnesses, including one of the defendants, testified that appellant's general reputation was good at the time of the trial.
Other assignments refer to the court's refusal to admit in evidence a portion of an editorial published in respondent Bell's newspaper on November 3, 1938. A portion of the editorial had been torn off. The part which appellant offered is in the record. It refers to the campaign, praises appellant's opponent and denounces the character of campaign being made against him and calls upon appellant to make the fight on his own record. We cannot see how it is relevant to any issue in the case. [McClung v. Pub. Co., 279 Mo. 370, 214 S.W. 193, l.c. 202.]
Other assignments relate to evidence offered by respondents to show the existence and extent of gambling during appellant's tenure as prosecuting attorney. Some of this evidence was as to general knowledge of the public as to gambling conditions and some of it as to specific instances. Appellant objected to this on the ground that it was not shown that he had knowledge of gambling and that some of the evidence related to gambling elsewhere than at the Saratoga and Lemay clubs. Appellant also objected to, as hearsay, certain conversations between others when appellant was not present. We think appellant misconstrues the article published by repsondents. The sting of that article, read as a whole, is the charge that widespread gambling existed during appellant's tenure in office and that he did nothing about it, at least until near the end of his term. The issue was not confined to gambling at the Saratoga and Lemay clubs. Appellant's position is, that no matter how widespread and notorious the evidence showed gambling to be, respondents could not justify without proving that gambling was conducted at both of two certain clubs named "Saratoga" and "Lemay," respectively, and that appellant had actual knowledge of such gambling. His contention answers itself; under the issues in this case, proof of specific instances and of general knowledge of gambling was properly admissible and it was for the jury to say whether the proof was sufficient to impute knowledge of gambling to appellant. As to the conversations complained of, they tended to prove the widespread existence and general notoriety of gambling and some of this evidence was brought out by appellant's counsel on cross-examination. Many cases could be cited against appellant's contention. The following are sufficient: State ex inf. v. Wymore, 345 Mo. 169, 132 S.W.2d 979; Stephenson v. Kilpatrick, 166 Mo. 262, 65 S.W. 773; Kleinschmidt v. Johnson et al., 183 S.W.2d 82, decided contemporaneously herewith.
As to assignment number 10 the court's ruling was in defendant's favor.
Other assignments relate to the testimony of the reporter who wrote the article which was copied by respondents from the St. Louis newspaper. On cross-examination by appellant this witness said that certain portions of the article were untrue; that it was not published exactly as he wrote it and that he had so stated after it was published. Then appellant offered a written statement made by the witness in compromising a suit against him by appellant growing out of the publication of the same article. This statement said the article was untrue and contained other matters which were mere conclusions. We do not think the court erred in excluding the statement. Part of it was clearly inadmissible [92] and none of it tended to contradict anything to which the witness had testified. He had already testified that the article was not entirely true and that he had so stated.
Assignment 19 relates to the refusal of the court to permit appellant to introduce in evidence articles published in other newspapers a few days before and the day after the election in 1938. Only one of these is shown in the record. It is critical of appellant's opponent, but does not refer in any way to appellant's official record and is not relevant to any issue in the case on trial.
Assignment 21 objects to instruction B-2 given for respondents which, among other things, told the jury you "cannot allow any damages sustained by plaintiff on account of any derogatory reports or publications put in circulation or published by any one other than defendants."
We do not think this instruction tended to mislead the jury, especially as the court gave another instruction which, in part, stated: "The law does not permit a person to libel another merely because some one else may have done so. Therefore, it is no defense in this case, if you find that the article as published by the defendants was false and libelous, as to any portion thereof, that the St. Louis Globe-Democrat may have published the same or a similar article some time previously."
Appellant's last assignment complains that the court erred in permitting counsel for respondent to read from two dictionaries in discussing the definition of the word "permit," the dictionaries not having been offered in evidence. No part of the argument appears in the record and we are not informed as to what was read nor as to the context of the argument. No claim is made that the dictionaries were not standard works or that they were incorrectly quoted. We do not approve the reading of extraneous matter to a jury, even in a libel case where the jury is the judge of both the law and the facts, but on the record here we cannot convict the trial court of error.
We have examined the cases cited by the parties, but deem it unnecessary to review them in detail. The principles of law applicable to the facts of this case are not difficult to determine. Appellant was a candidate for circuit judge and had previously been prosecuting attorney. By becoming a candidate he offered his character and fitness for office to the public view. Any discussion of his qualifications, especially his previous record in office, was qualifiedly privileged in the absence of false statement and malice. [State ex rel. v. Cox, 318 Mo. 112, 298 S.W. 837.] Appellant cannot dispute the correctness of this principle of law for the same is substantially stated in instruction number 4 given to the jury at his request.
The article complained of must be construed as a whole and given the plain natural meaning which would ordinarily be accepted by the average person for whom it was intended. [Diener v. Pub. Co., 230 Mo. 613, 132 S.W. 1143; Aldridge v. Zorn (Mo. App.), 287 S.W. 650; State ex rel. v. Cox, 318 Mo. 112, 298 S.W. 837; Davis v. Pub. Co., 323 Mo. 695, 19 S.W.2d 650; Warren v. Pub. Co., 336 Mo. 184, 78 S.W.2d 404.]
It was the province of the jury to interpret the article. [Warren v. Pub. Co., supra.] We think they could well have construed it to simply charge appellant with neglecting to suppress widespread gambling during his term of office. Certainly the article should not be given the strained construction contended for by appellant. His position seems to be that respondents were required to prove that gambling was carried on at the two named clubs and that he admitted that he permitted such gambling; also that the Republican committee repudiated his candidacy. He seems to construe the term "permit" to mean an express consent and not consent to be inferred from his inaction. But whatever reasonable construction is placed on the article there was evidence which, if believed by the jury as it apparently was, authorized the verdict for respondents. There was evidence that a gambling club known either as the Saratoga or the Lemay was in operation and gambling was conducted in many other places during appellant's tenure in office. There was evidence that appellant told the reporter that he knew of gambling during 1921 and failed to get evidence until late in 1922. Also, if important, the reporter testified that the chairman of the Republican committee told him the committee had repudiated appellant and warned him [93] against the gambling issue. Some of this evidence was contradicted, but the decision was for the jury.
We find no error and the judgment is affirmed. All concur.