227 Mo. 471 | Mo. | 1910
Lead Opinion
This is an action for libel. The defendant is a corporation and the owner and proprietor of the well known metropolitan newspaper, the St. Louis Globe-Democrat, printed in the city of St. Louis. His action is founded on an alleged libelous and defamatory article, which appeared in that paper, and in its issue of February 12,1905.
This suit was instituted in Randolph county at Huntsville, Missouri, the petition alleging, among other things, that copies of the paper containing the article complained of were circulated in that county. The defendant at the return term of the writ of summons, which was served on the defendant in the city of St. Louis pursuant to section 997, Revised Statutes 1899, first filed its application for a change of venue from the Randolph Circuit Court, on the ground that both the judge of that court and the inhabitants of that county were prejudiced against the defendant. A change of venue was duly awarded to the circuit court of Chariton county, sitting at Salisbury. At the next ensuing term after the change of venue, to-wit, at the Septem- - her term, 1905, the defendant filed a plea to the jurisdiction of the court, to-wit, that the issue of the Globe-Democrat containing the article complained of was printed, and first given to the public, in the city of St. Louis, thereby creating a cause of action, if any, in St. Louis city, and that a cause of action did not accrue to the plaintiff in Randolph county because of the subsequent sale and circulation of the paper in the latter county.
The court overruled this plea to the jurisdiction, and thereupon the cause, by stipulation of parties, was
The petition consists of one count based on the alleged libel article which appeared in the Globe-Democrat of February 12, 1905, being the Sunday edition of that paper. This article is set out at length in the defendant’s answer and occupies between seven and eight pages of the abstract. This article was purported to be written by "The Old Politician, ’ ’ who had furnished matter for the columns of that paper for several years, and the evidence established that he was one Donald C. Fitzmaurice. The petition alleged and the testimony established that plaintiff is, and was at all the times therein mentioned, a citizen of this State and a resident of the City of Jefferson, and was at the time of the printing and publishing of the said article the president of the Central Missouri Trust Company, a financial institution in the City of Jefferson. That the defendant is, and was at the time of the publication of said article, a corporation under the laws of this State under the corporate name of the Globe Printing Company with a capital stock of $500,000. That said company had and has its principal business office in the city of St. Louis; that it was and is the owner of a certain newspaper known as the “St. Louis Globe-Democrat,” Republican in politics, and had a wide circulation throughout Missouri and adjoining States and the country at large, and its daily edition amounted to 100,000 copies, and the Sunday edition averaged from 153,000 to 160,000 copies. Plaintiff was the chairman of the Democratic State Central Committee of Missouri during the year 1896, the said committee being a political committee composed of a chairman and thirty-two members, having a secretary and treasurer, the business and purpose of said com
During the said campaign, and at the time of the said general election in 1896, there was in force in this State a statute relating to corrupt practices in elections, which, among other things, provided that every political committee shall appoint and constantly maintain a treasurer, to receive, keep and disburse all sums of money which should be collected or received or disbursed by such committee, or by any of its members for any of the purposes mentioned in section 17 of the said act, for which such committee exists or acts; and, unless such treasurer is first appointed and thereafter maintained it shall be unlawful and a violation of this act for a political committee or any of its members to collect, receive or disburse money for any purpose. It was further*provided: All money collected, received or disbursed by said committee, or any member thereof, for the purposes mentioned in said act should be paid over and passed through the hands of the treas-. urer and be disbursed by him. And it was made unlawful for the committee or any member thereof to disburse or expend money for any of the objects and purposes for which said committee acted until the said money had passed through the hands of the treasurer. It was provided that the treasurer or any person who should at any time act as treasurer, should, whenever he received or disbursed money as such treasurer on account of any of the objects or purposes mentioned in the act, immediately enter and copy in a proper book or books, to be provided and preserved by him, a full, true and detailed statement and amount of each and every' sum of money received and disbursed, and the date when, and the person from whom received, or
The petition alleged that the defendant well knowing the facts aforesaid, wickedly, designedly and maliciously contriving and intending to injure said plaintiff in his good name and credit and to bring him into public scandal, contempt, infamy and disgrace with and among all good and worthy people and with the public generally, and wickedly, designedly and maliciously contriving and intending to charge and make it appear that it was the legal and solemn duty of plaintiff, within thirty days after the general Missouri State election of
OLD POLITICIAN ON PARTY FUNDS.
FIGHT OF THE PEOPLE.
WRECKS THROUGH COVERING UP AND FRAUD IN CAMPAIGN CONTRIBUTIONS.
THE PRESENT INVESTIGATION.
The Thursday Conference, Why it Was Called, and What May Grow Out of It.
Special Correspondence of the Globe-Democrat.
Jefferson City, Mo., February 11.
It was thirty years ago we crossed the Arkansas an’ left the desert behind us. An’ no sooner did we think we’d got rid of the quicksand than we commenced a drivin’ like the devil. We didn’t notice none of the signs along the road. We was cornin’ so fast that we only hit the trail on the high spots. We didn’t know and some of us don’t care where we was a-going to. But the first thing we all knowed we brought up at Independence.
Court was a-goin’ on there an’ Sam Cook was called as a witness. Sam had been our boss wagonmaster along the whole trail this side of the Arkansas. Most o’ the men that brought us through the desert was dead. It was Sam that brought us to Independence. He’d been playing cards every inch o’ the way this side o’ Pawnee ford. An’ when they got him in court he didn’t make no bones about telling o’ the kind o’ oards he’d been a-holdin’.
Bill Phelps had give him $2500, he said, for the Democratic fund in the campaign of 1896, when Sam was chairman of the Democratic Committee. He had talked with some other Democrats about it, an’ whether it’d be a wise thing to put it in as an item in his sworn statement of receipts, to be published after the election.
(Meaning the sworn statement required by law to be made of the receipts and disbursements of the said Democratic State Committee for the campaign of 1896, and that plaintiff had been required by law as a duty devolving upon bim personally to make and file under oath, legally administered to bim, tbe statement referred to.)
*495 I don’t know what Sam thought about it hisself. He didn’t say at Independence. I reckon he must ha’ thought it’d be dangerous to let the party and the people know that a corporation agent had been helpin’ the party along, or he wouldn’t have called the little conference to talk it over.
But never mind what he thought. Bill Stone was in the conference, an’ says he, it would never do to let it get out that Bill Phelps had contributed so much money to help the Democrats o’ Missouri. It’d look, says Bill, like the Democrats an’ the corporations was a-workin’ together. That’s what they was doin’ an’ Bill knowed it, but he didn’t want the people to know it. So Ed Orear was sent round to see Bill Phelps and ask if he’d have any objection to his contribution bein’ credited to Sam Cook. If Bill had any objections, he didn’t say so, an’ his money was put down to the credit of Sam Cook, who was then a-puttin’ up his fences for Secretary of State, an’ might ha’ thought that a big reputation for loosenin’ up wouldn’t hurt Jiim none, an’ it didn’t.
Sam told about how the St. Louis Transit Company had contributed $2500, to the Democratic campaign fund in 1898, when Sam was chairman again. It was Seibert who collected that money from the street railroads, an’ Sam had credited it collections by Seibert in his report, but when they went after Seibert to get him on a subpoena to go into court at Independence, somebody that had been contributin’ to these Democratic funds contributed again, an’ got up enough more money to put an end to the proceedin’s.
FOLLOWING THE TRAIL.
That’s the end of the road to Independence. But the trail runs further than that, an’ followerin’ it up is one of the most interestin’ things I ever undertook. I made a bet when Sam struck the end o’ the trail at Independence that that was the end of him politically. Come along the trail with me now an’ see how that’s come out. It was after the election of Dockery, in 1900, that the depositions at Independence was took. In 1902, after the depositions was made, the Democrats lost about 12,000 votes, but still they had enough to carry the legislature on joint ballot, an’ elect Bill Stone to the Senate, the man who’d told Sam to credit hisself with payin’ Bill Phelps’ .contribution to the fund.
When I met Stone a-comin’ back here from Washington, and sees Sam a-goin’ down the street that’ll keep him from passin’ the State house, I think o’ the time that Jim Frisbie, who used to run a saw-mill in Gasconade county, licked one of his boys and let the other go. Both of ’em had broke in the closet and got nearly all the Sunday dinner that was bein’ saved for company. They hadn’t had it long till the old man found ’em with it. Bob, the oldest one of ’em, seen there wasn’t much time to get anything if it was wasted in talkin’, so he lets Ed, the younger one, do the talkin’, a-tryin’ to square things, while he tackles the grub. The way that Ed squared*496 things was that the old man took'him by the ear and led him to the the wood shed, an’ commenced usin’ his horsewhip for all it was worth. As Ed danced around that shed, as a hoy will at such times, he happened to think of Boh settin’ out there an’ layin’ in a full supply, an’ “It’s Bob done the eatin,’ ” says he, a-tryin’ to rub a red stripe off of his hind quarters. “But it’s you that’s done the lyin’,” says Jim, a-givin’ him enough more stripes to make a flag, “an’ I can’t a-bear lyin’.”
Most everybody’s that way. The only thing that explains the difference made between Cook an’ Stone is that Cook is the man that swore to what wasn’t so.
(Meaning that plaintiff had been- required by law to make the affidavit, statement and account under oath as aforesaid, and that in the performance of said duty said plaintiff had willfully sworn falsely before an.officer authorized to administer oaths to material matters therein.)
The people of Missouri’U never stand for that, my boy, or anything like it. The people of Missouri are all very much alike, an’ every man that knows ’em knows it. There’s been a whole generation since the war, when the whole country thought, an’ a great many Missourians thought, that this here State was only made by God Almighty for armies to fight over, or parties to quarrel over, with so much hatred toward one another that it was almost as bad as war all the time. People’d think the way we’ve carried on that Missouri was divided into two camps, in which the people in one camp was teetotally different from them in the other, natural born enemies by nature as well as by politics.
Tain’t so, son, we’re all alike. The average Missourian stands for honest government. If one party can’t give it to him he will try the other. An’ the big thing that made him try. the other was when the machine tried to gag him, an’ force a lie down his throat after Sam Cook had sworn that he contributed $2500 to a campaign fund that was contributed by another man whose name Sam wanted to conceal.
(Meaning that plaintiff had been required by law to file a statement, under oath, showing the amount of moneys received by the Democratic State Committee in the campaign of 1896, and from whom received, and that plaintiff had willfully, corruptly and falsely in said statement set forth that he contributed to said Demo
That’s when your Missourian gagged, an’ bucked, an’ kicked till he kicked the dashboard out an’ run away with the whole darned outfit. He’d stood Stone. He made a bad face over him but swallowed him, alum and all. That’ll show you that he could stand any thing but Cook.
*498 Now, Cook ain’t the issue as a public officer, mind you. Sam was a good sheriff of Warren county. He made a good Secretary of State, an' administered that office and closed up its accounts without the loss of a dollar to the State. Nothing was ever proved against him but what he proved hisself in that Independence story, but, say, if you don’t think that was enough, ask Sam. Here he comes; once the most popular man in Missouri, away back yonder behind the next lowest man on his ticket, an’ so far back of him that you’ve got to get a spy-glass to see the dust he’s a-raisin’. Say, we wer-e all against him. Republicans, Democrats, an’ all of us. There’s no such thing as party lines when it comes to dealing with that there question. I tell you, Missourians is all alike. Give ’em a question that goes down to the bottom of their common nature an’ they’ll answer it with almost one voice, an’ that voice’ll be an echo of the one that come down from Mount Sinai a’sayin’ “Thou shalt not bear false witness.”
(Meaning and charging that plaintiff had made the alleged false affidavit and committed the alleged perjuries aforesaid, and that by reason thereof he had been defeated by the people of the State'of Missouri in an election in which he was a candidate, and meaning and charging that plaintiff had borne false witness, that is, that plaintiff had sworn falsely, and that his conduct was revolting to the nature and moral ideas of the people of the State of Missouri, and that the people of the State of Missouri had with one voice when plaintiff was a candidate for office denounced him as one who gave false testimony and as a perjurer and an untruthful man.)
Right there’s where party lines goes glimmerin’. I ain’t talkin politics to you now. I’m talkin’ morals and common-sense, an’ I’m a-talkin’ somethin’ that the politicians ought to know without fellin’, since the experience Sam Cook had, an’ about which they all know as much as I do. They ought to know more’n Sam did. Since he went along the road to Independence there’s been sign posts put up to tell where he ought to have stopped, but didn’t. A whole lot of ’em don’t seem to have as much sense as Sandy Bowlin had when he tore off the sign posts an’ took ’em with him so he’d have ’em on hand if he found he was on the wrong road an’ had to take the backtrack. You often have to take a backtrack. I’ve done it myself, an’ I’m an old woodsman, because it was the only way of getting out of the woods. If there’s any place you don’t want to go, the sign*499 posts’ll tell you how to keep away from it, an’ if you can’t recollect ’em you’d better tear ’em off, like Sandy Bowlin did, an’ take ’em with you. It isn’t everybody that knows how to read a sign post, but some do.
GUM-SHOE TRACKS IN THE ROAD.
The people do. But there’s a lot of politicians, or fellows that calls themselves politicians, that don’t. You can hear ’em a-growlin’ around in both parties about this investigatin’ committee that’s wantin’ to break into other people’s business. I reckon they still think even after what’s happened to more’n one chairman of .a State Committee in Missouri since that law was past
(Meaning the aforesaid statute set out at length in the petition.)
That a man can swear to a lie and not be caught.
(Meaning that plaintiff had sworn to a lie and had willfully committed perjury and willfully made a false affidavit concerning a material matter of which he was required by law to make affidavit and that he had been detected and caught in the making of said false oaths and perjuries.)
I wonder if they think Sam Cook’d run a bit better before the people o’ Missouri to-day than he did three months ago. If they do, I can tell ’em their ears is longer than I thought they was. The people of Missouri is a God-fearin’ people, an’ the man who’ll do what Sam done, to serve his party and hisself instead of the Lord, an’ will take the name of the Lord in vain, in swearin’ to an untruth, will never meet their approval. They’d be afraid to elect such a man. They’d be afraid of the vengeance of God failin’ upon them, for their sin and iniquity in the sight o’ the Lord. That’s the kind o’ people they are, Republicans, Democrats, or Populists, That’s the kind they all are. I know ’em.
(Meaning to charge and charging that plaintiff in order to serve his party and disregarding his duty to the Lord had voluntarily made a false oath and had willfully, maliciously and corruptly sworn falsely to a material matter with reference to which he was required by law to make oath, and that he had willfully and corruptly sworn to a material matter which was not true, and that the people of the State of Missouri were
It is then averred with particularity that the said article meant and the defendant intended it to mean, and intended that its readers should understand it to mean, and the readers thereof 'did understand it to mean, that it was the legal duty of the plaintiff to have paid over to him and to have pass through his hands all moneys received for the purposes aforesaid and to disburse all moneys paid out on behalf of said Democratic State Committee, and that it was his legal duty whenever he received or disbursed any money for or on account of any of the objects or purposes aforesaid, to immediately enter and copy in a proper book or books of account, the object and purpose for which said sum was received or disbursed, and was legally bound, within thirty days after said election of November, 1896, to prepare and file in the office of the recorder of deeds of the county in which he resided, a true and detailed account and statement subscribed and sworn to by him before an officer authorized to administer oaths, and particularly that said committee did -receive and there did pass through plaintiff’s hands various large sums of money on behalf of said committee and among others that plaintiff received in the manner and for the purpose aforesaid from one William H. Phelps $2500', and plaintiff in making said statement falsely entered said item so contributed by the said Phelps as having been contributed by him, the plaintiff, and well knowing the fact aforesaid, had willfully, corruptly and falsely, by swearing, by taking oath prescribed by the laws of this State, and the said oath had been legally administered to the effect, purport, intent and
It was alleged that at the time said published statement was made, the defendant knew that all the charges above set out were absolutely untrue, and that the same was published with malice and express intent of defaming and injuring plaintiff, of destroying his good name and reputation and with a wicked design and purpose to bring him into public scandal,' contempt, infamy and disgrace; that defendant well knew that plaintiff had never made an affidavit of the kind charged in said article; that defendant well knew that plaintiff had never made an.affidavit setting forth or purporting to set forth the raising, collection or disbursement of income or expenses of said Democratic State Central Committee of the year 1896, and that defendant’s said article was printed and published and circulated after plaintiff had personally notified the defendant that he had never made an affidavit of the character referred to in said article.
It was then alleged that at the time of the publication of the said article, plaintiff had a large and extensive acquaintance throughout the United States of America, and particularly throughout the State of Missouri, and especially had many personal friends and acquaintances in the county of Randolph in said State, and that he was generally esteemed, until the publica
It was then stated that said defendant had no business office in Randolph county and that the president or other chief officer of that corporation could not be found therein. It was then alleged that plaintiff had suffered great humiliation and shame by reason of said publication; that he has been brought into contempt and disgrace thereby, and has suffered great mental pain and anguish and has been greatly damaged and injured, and that all the acts of the defendant in publishing and procuring the publication of said libelous article were knowingly, intentionally and maliciously done for the purpose of injuring the plaintiff.
He laid his actual damages at $100,000, and asked for $150,000 exemplary and punitive damages.
The summons was served upon the president of defendant company in the city of St. Louis. As already said the defendant prayed for a change of venue from Randolph county and from the judge of the said court on account of the prejudice of both the judge and the inhabitants of said county against the defendant. Thereupon a change of venue was awarded to Chariton county, Missouri. The plea in abatement was filed and overruled at the September term, 1905, and the defendant filed its exceptions. After the change of venue to Keytesville, the defendant filed its answer.
In the first paragraph of the defendant’s answer it pleads the want of jurisdiction of the Chariton Circuit Court. In its second defense, it admits its incorpora
In the third paragraph of its answer, defendant' purports to set forth the occasion and circumstances giving rise to the publication of the article complained of substantially as follows:
“That the Republicans had a majority of members of the General Assembly elected at the general election in this State in November, 1904; that one Thomas K. Niedringhaus, who had been and was at the time chairman of the Republican State Committee, was the choice of the Republican caucus for nominee for United States Senator; that his nomination was opposed by the stubborn opposition of a portion of the Republican members of the General Assembly; that soon after the caucus nomination of said Niedringhaus, the Senate and House of Representatives appointed committees to investigate his action and conduct as chairman of the Republican State Committee, and to inquire into his receipts and expenditures as said chairman in connection with the election of the Republican candidates at the preceding November election. That said committee sometime early in the month of February made reports of their proceedings under their power and appointment, in which certain- alleged irregularities in the*504 management and accounting for and reporting of certain funds by said Niedringhaus were alleged to have been discovered. That said investigation of Niedringhaus was a live public issue, and was a subject of general interest to the public and attended with much public comment and discussion by individuals and the public press of the State. That the opposition to the election of Niedringhaus as Senator became so determined and persistent and his election became so uncertain that it was given out that a representative of the Federal administration at Washington was visiting Jefferson City to bring about harmony in the Republican party and the election of a Republican United States Senator, and that a move was on foot, on or about Thursday preceding the twelfth day of February, 1905, looking to the calling of a new caucus to nominate another candidate instead of Niedringhaus.”
The answer then proceeds to state that in November, 1896 (more than eight years prior to the transactions referred to above) plaintiff was chairman of the Democratic State Committee and Fred G. Zeibig was its treasurer. That one W. H. Phelps had contributed to said State Committee at one time $100, and at another time had given plaintiff for said committee the sum of $2000, and that plaintiff obtained permission from said Phelps that said contribution should, in the treasurer’s report of the campaign receipts and disbursements, be credited to plaintiff; that is, appear as having been contributed by plaintiff instead of by Phelps. That sometime prior to November 27, 1901, one William Cardwell had instituted an action in the circuit court of Jackson county against George Knapp, publisher of the St. Louis Republic, a metropolitan daily newspaper of wide circulation in Missouri and elsewhere, for an alleged libel appearing in said paper and charged to have been written by the plaintiff; that on said November 27th, 1901, plaintiff herein gave his deposition at Independence, Missouri, in said suit last
The answer then set forth said entire article, which purports to have been written at Jefferson City, Missouri, and occupies between seven and eight pages of closely printed matter in small type of appellant’s abstract. Defendant’s answer then alleges and sets up that said article relates solely to the acts and conduct of plaintiff as shown in his testimony in the Cardwell case, and in that of Orear in the same case, and that said article does not attempt in any way to charge the plaintiff with the crime of perjury or any other crime, or in any way to defame him, and that said article is not libelous, and plaintiff has no right to complain of the same.
Defendant, in paragraph á of its answer, sets up that the matters and things contained in the article and complained of by plaintiff related to public issues that were then alive and being discussed and involved the public interests and the regularity and purity of party organizations, and that defendant’s comments in its said publication were within the bounds of legitimate newspaper criticism and were not libelous, and that plaintiff therefore has no right to complain of said article.
Defendant, in paragraph 5, sets up that plaintiff, in his position as chairman of the Democratic State Committee in 1896 and 1898, was a quasi public func
The remainder of defendant’s defenses set up in its answer are merely in mitigation of damages.
Defendant, in paragraph 6, says that it published said article complained of in good faith, believing the comments and criticisms made therein were proper and legitimate inferences from plaintiff’s testimony in the Cardwell case; that said matters had been published and republished in the newspapers of the State, and that defendant did not believe that its article published on February 12, 1905, could or would injure plaintiff or in any manner defame him, and that “this defendant had nothing to gain by assailing the plaintiff personally and had no such wish or desire.”
Defendant, in paragraph 7 of its answer, avers and says that by the publication complained of by plaintiff it did not mean or imply that plaintiff had been in any way guilty of perjury or making a false affidavit, nor was it so understood by any one reading the same, and in this connection defendant sets out at length an article published by it in its newspaper on Sunday, February 26, 1905. Said article last referred to defendant pleads as an- apology or retraction, and thus concludes paragraph 7: “And so defendant pleads said publication in further mitigation of damages, if plaintiff be in any wise damaged, which is denied. ’ ’
The following excerpts from said so-called “apology” or “retraction” will be noted:
“Here not long ago tellin’ you ’uns what it was knocked the old machine out an’ made Sam Cook the most popular man in Missouri run behind his ticket.*508 was the making of a false affidavit to a statement of receipts of campaign funds.
“So far as Sam Cook was concerned, I tried to let him down easy, as my remarks showed.
“Some of Sam’s friends, an’ I hear Sam hisself says I accused him of perjury. Not on your life.”
Defendant then sets up in mitigation of damages that the depositions of plaintiff and of Orear in the Cardwell case set- up in the second defense of the answer, and its publication in the press of the State, had so fixed public opinion in the State adversely to plaintiff that the article sued on did not in any wise injure plaintiff.
Defendant in the last one of its answers, pleads by way of mitigation of damages that the article, in its paper of Sunday, February 12, 1905- (the one sued on), was received from a regular contributor, who for some years had been furnishing political articles for the Sunday edition of defendant’s paper; that said contributor, one Donald C. Fitzmaurice, is a man of experience and of respectable standing in newspaper circles, and that defendant in its former relations with him had found him careful and diligent, and in a series of years had never had any trouble by reason of his communications," and that beyond the receipt of said article, this defendant, or its management, did not in any way encourage, promote, instigate or suggest to said Fitzmaurice any of the matter, criticism, comments, characterizations or epithets appearing in said article,” and that “defendant and its management never in any manner authorized said Fitzmaurice in any manner to libel or defame of injure plaintiff, and that defendant, or its management, did not intend so to do by said publication. ’ ’
Defendant further says that it published, as hereinbefore stated, on the twenty-sixth of February, 1905, the article and matter hereinbefore set out as an explanation, apology and correction' of any alleged con
“And so this defendant pleads these facts herein in this defense set forth in mitigation of any damages, if any, that it may be found plaintiff has sustained in any manner by reason of said publication. And this for ah eighth defense.”
The plaintiff in reply joined issue with defendant on the new matter set up in his answer.
The case was tried at the November term,. 1905, and resulted in a verdict for the plaintiff in the sum of $75,000 punitive damages, and $75,000' actual damages, and judgment was rendered accordingly. Before proceeding to trial, the defendant moved the court to require plaintiff to elect whether he would proceed to trial on the averments that the publicatiou complained of charge plaintiff with having made a false affidavit or on the claim that it charged plaintiff with having falsely taken an oath in preparing and filing a detailed statement under the Corrupt Practice Act. This motion was overruled by the court. On the trial of the plea to the jurisdiction, the plaintiff introduced Mr. W. H. Harrington, who testified he was the circulation manager of the St. Louis Globe-Democrat on February 12, 1905; that the circulation of the paper at that time on Sunday was about 160,000; that he sent copies of the said paper both by mail and by express to the newsdealers in Randolph county; they had a newsdealer in Moberly by the name of H. S. Williams, and that they usually sent him about two hundred copies of the Sunday papers, sometimes more and sometimes less; that the Globe-Democrat circulates in every State in the Union, and there was hardly any country where somebody from St. Louis or somewhere did not take the Globe-Democrat. The papers go to London, Paris and South America. Plaintiff also, in resistance of said plea to the jurisdiction, read in evidence the transcript of the case showing the proceedings had in
On the trial proper, to sustain the issues, the plaintiff introduced the evidence of Mr. Harrington already introduced, and Mr. Thomas M. Hollingshead, the business manager of the defendant, who testified that he did not know “Old Politician,” and did not know who he was; that the circulation of the Globe-Democrat for February 12, 1905, was in the neighborhood of 158,000 to 160,000 copies; that its office building was on Sixth and Pine streets in the city of St. Louis; that defendant’s capital stock was $500,000; that the value of defendant’s property was from $2,000,000 to $2,500,00; that it owned real estate worth from $300,000 to .$400,-000.
Charles M. Harvey testified that he was not positive who “Old Politician” was, he knew that he (Harvey) was not the writer of the said article; that Capt. Ring would know; that Mr. Houser would not know.
Plaintiff then read in evidence the entire article as published by the defendant in its paper February 12, 1905, containing the extracts set forth in plaintiff’s petition, and being the same article set out in full in the defendant’s answer.
Frederick Zeibig testified that he was the treasurer of the Democratic State Committee in 1896; that Samuel Cook was the chairman of the committee; that prior to the election in 1896- he received one hundred dollars directly from W. H. Phelps, was paid by check; that subsequently Mr. Cook gave witness $2000', and also on the same day told him it was from Phelps; that
On cross-examination Mr. Zeibig testified that be lived in St. Louis county and tbe law requires tbe report to be filed there; also required tbe treasurer of the committee to file tbe report; that Cook was chairman of tbe State Committee; was not tbe treasurer in
Samuel B. Cook, the plaintiff, testified that he lived in Jefferson City; had lived there since January, 1901; that he was horn in Virginia and had lived in this State for nearly fifty years, since he was seven years of age; that he has been sheriff of Warren county, Missouri, elected in 1878 and 1880; was secretary of Democratic Committee in the Stone campaign, being a member of the committee; was elected chairman of the State Committee the latter part of 1895 or the early part of 1896; was elected chairman by the State Convention of 1896 and re-elected. in 1898; that witness received money from different sources during the campaign of 1896 and always turned it over to Mr. Zeibig, the treasurer ; that Col. Phelps sent him a check for one hundred dollars; that on the morning after the election the committee owed $2100, or something like that sum; some of the candidates having failed to pay their assessments, the committee was short about that amount; that witness left the committee to see if he could raise some money and when he returned found that in his absence Col. Phelps had left $2000 for the committee; that witness got the check cashed and turned the money over to Mr. Zeibig, the treasurer; that this occurred on Thursday following the election of 1896; that he did not see Zeibig’s report prior to the time it was filed; that he had no conversation with Mr. Zeibig with reference to what it should contain; that witness at that time lived at Mexico, Missouri, and .went to his homé there on Friday following the election; that witness returned to St. Louis about three weeks later; was asked to come up to Governor Stone’s room at the Planter’s Hotel; that he found there Governor Stone, Mr. Orear and Maj. Salmon; that Mr. Orear told witness that Gov. Stone was worked up over the contrihu
On cross-examination plaintiff testified that he is now and has been since January 10, 1905, president of the Missouri Trust Company at Jefferson City, Missouri, and in reference to his deposition in the Card-well, case said it was poorly taken and was poorly reported. “I stated (referring to his deposition in that case) that the treasurer did make the report, and I remember that part of it. Q. That you were with him when he made the report? A. Yes, sir. I do not know whether the answer was just that way, but it was explained there just as I explained it here; that I was in that room the day he was consulting in regard to making his report; I was not there in the sense of helping him make it, but I was there. ’ ’
Defendant on its part introduced in evidence the House and Senate resolution of the Forty-third General Assembly of Missouri calling for the investigation of the report of Thomas K. Niedringhaus, treasurer of the Republican State Committee for the year 1904 on campaign contribution and expenses, in support of its defense that said article and its criticism and comments were proper to illustrate the effect and results of certain actions by political committees, among others the Niedringhaus Committee, and to arouse the public to understand the meaning of such actions.
Defendant next introduced in evidence the record of the proceedings of the circuit court of Jackson county in the case of William O. Cardwell against George Knapp & Company, for an alleged libel of said Cardwell, appearing in the St. Louis Republic, the said libel having been alleged to have been written by the plaintiff, and the deposition of the plaintiff taken in that cause on the 27th of November, 1901, in which the
Defendant next introduced in evidence the report of Frederick G. Zeibig, as treasurer of the Democratic State Committee in the campaign of 1896, signed and sworn to by Frederick G. Zeibig, treasurer, and certified to by the Recorder of Deeds of St. Louis county, wherein, on November 5, 1896, the plaintiff was credited with having contributed $2100 to said campaign expenses. Defendant also introduced in evidence the report of James E. Hereford as treasurer of the Democratic State Central Committee of campaign receipts and expenditures for 1898, filed in St. Louis county and certified by the Recorder of Deeds. Defendant next introduced in evidence a certified copy of the total vote cast for the various State officers at the general State election held in November, 1900, showing plaintiff’s plurality for the office of Secretary of State to have been 38,875, and his majority over all 21,616. Defendant also offered in evidence a certified copy of the tabulated returns of the election of 1904, whereby it appeared that John E. Swanger, the Republican candidate for Secretary of State, received a plurality of 23,980 over plaintiff, Samuel B. Cook, for the office of Secretary of State.
Defendant then offered and read in evidence the testimony of Edward T. Orear wherein he testified that in 1896 he was an intimate friend of Governor Lon. Stephens and was regarded as the personal representative of Governor Stephens in that campaign; that shortly after the election said Orear was notified by the plaintiff, Mr. Cook, to come to St. Louis in regard to the closing up of the work of the committee; that upon his arrival he met the plaintiff, Mr. Cook, and was informed by him that the bills of the campaign had been paid, but that in closing up the work they were
Defendant also read the depositions of the plaintiff and Edward T. Orear given in the Cardwell case. Defendant also read in evidence the deposition of John EL Carroll, who testified that in 1898 he gave S. B. Cook, as chairman of the Democratic State Committee, $1000; that this was his personal contribution; that he gave it to help the Democratic State ticket; that the Globe-Democrat was a Republican party newspaper and the plaintiff, at that time, was not Secretary of State, or holding any public office.
The defendant then offered the deposition of William EL Phelps, who testified that he was a farmer, a lawyer and assistant general solicitor of the Missouri Pacific Railway Company, and had his office in the Missouri Pacific Building in St. Louis. That on October 7,1896, he contributed by check to F. G. Zeibig one hundred dollars and took his receipt for that sum as treasurer of the Democratic State Committee; that on November 6, 1896, about the third day after the elec
Henry King testified that he was the editor of the Globe-Democrat and had been for about eight years; that he knew the plaintiff; that he remembered that plaintiff, H. W. Salmon and F. G. Zeibig called at the office of the-witness after the campaign of 1896; that witness had made a statement in the Globe-Democrat that a certain contribution made to the Democratic campaign fund credited to Mr. Cook had been given by somebody else; that Mr. Cook called to see witness about that statement and explained to him the facts in the matter; said that he had done so with the assent of the person who had given the money; that he did not think the question of affidavit was mentioned; that Mr. Cook wanted it understood that he had not credited himself with somebody else’s money; did not think he ever had any other conversation with Mr. Cook; that so far as witness knew the defendant never received any information from Mr. Cook that he had not made an affidavit as chairman of the Democratic State Committee in regard to the raising of campaign money; that witness knew Donald C. Fitzmaurice; had known him for fifteen years, that he bears, so far as
“Strange reports, and well-verified reports at that, multiply concerning the disappearance of contributions to the Democratic campaign fund in this State. Col W. H. Phelps says he holds a receipt for $2100, given by him to the Democratic campaign fund of Missouri two years ago. No report of the receipt or expenditure of this money has ever been made by the Democratic State Committee. The law requires a sworn statement of such receipts to be filed. Why has it not been done in this case? And what became of Col. Phelps’s $2100? Chairman and others concerned would do well to furnish an explanation. This is no vague rumor, but a perfectly definite statement'from the contributor himself, and the receipt is in his hands. He has a right to know how the money is spent, and so has every citizen of Missouri. A secret and select Democratic fund seems to be well established in this State, in defiance of the statute and in total disregard of the right of the contributors to know that their money is not privately misapplied. The police force in this city, which is under Democratic control, is heavily and regularly assessed for the campaign fund, but no intelligible showing is ever made of where the money goes to. They are compelled to pay monthly, and that is all they know about it. To growl is dangerous, and to resist it is to lose a job. To this day no one apparently knows how Judge Bland’s $1000 was expended after it found its way into the hands of Chairman Cook during the season of Populist withdrawals, which is just before the election. Col. Phelps’ $2100 cannot be called an unconsidered trifle. It is gone and left no sign. Governor Stephens*519 fortified himself against any-personal occurrence of this kind last fall. He made no campaign contributions. Nor was he much to blame, considering his facilities for inside observation. His course, however, has not stopped the remarkable leak in the case of others less favored.”
Witness continuing testified that it is possible that the editorial was the occasion of Mr. Cook’s visit, but that their conversation was in regard to Phelps’s contribution ; that witness did not write the foregoing editorial, but had it written and was responsible for it. The examination of the witness at this point proceeded as follows:
“Q. You know, as a matter of fact, as editor of the Globe-Democrat, that the treasurer makes those reports under the laws and not the chairman? A. Yes, sir.
“Q. You say that' you published in the Globe-Democrat an abstract or the substance of the testimony given in the Cardwell case in the depositions at Independence? A. Yes, sir.
“Q. Don’t you recollect that in the course of his testimony in that case Mr. Cook stated that the treasurer of the committee made the report, the sworn report, and the chairman did not? A. Yes, sir, I remember that.”
Witness further testified: Donald C. Eitzmaurice lives in St. Louis; that he furnished his letters to the Globe-Democrat under the nom de phme of “Old Politician;” had been doing'so for three years; that they generally appeared in the Sunday edition of the Globe-Democrat-, that he, Fitzmaurice, was a contributor to the paper and was paid for the work he contributed; that he, Fitzmaurice, in politics was a Democrat.
Defendant also offered Donald Fitzmaurice as a witness. He testified that he was the author of the article which is the subject of the suit for libel in this case, under the alias of “Old Politician.” He gave as his motive for writing the article that Mr. T. K. Niedringhaus, who was chairman and acting
Defendant next read inh evidence an article headed “Old Politician on Nature’s Laws,” and which was published in the Globe-Democrat February 26, 1905. This article is set forth at length in defendant’s answer, and was treated in the defendant’s instruction number six as an “apology” to plaintiff.
Henry F. Woodward in rebuttal for the plaintiff testified that he was connected with the Democratic State Committee 1896; that he was present at the head
The court instructed the jury, and the instructions will be noticed in the course of the opinion.
I. The overruling,of the plea to the jurisdiction of the circuit court of Chariton county presents the first alleged error in the case. In the consideration of this point, it should be borne in mind that this action was brought in Randolph county, and the writ served in the city of St. Louis, where the defendant had its chief place of business, and where its president was. The evidence established beyond all question that the paper containing the libelous matter was sold and circulated in Randolph county on the day of its issue. The defendant appeared to the writ in Randolph county and prayed for and obtained a change of venue from said county to Chariton county without having raised any objection to the jurisdiction of that court in any manner whatever. In Julian v. Kansas City Star Company, 209 Mo. 35, it was ruled by this court that section 997, Revised Statutes 1899, authorized a person libeled by a corporate defendant to commence his action in any county where said publication is made or in which the newspaper containing the libelous article is circulated. It was also held in that case that when the defendant filed its application for a change of venue, it entered its general appearance in the cause, and even though the process might not have been sufficient to give jurisdiction over the person up to that point in the case by making the application for the change of venue it waived the jurisdiction of the circuit court in which the action was brought over its person, and could not afterwards avail itself of its objection to the jurisdiction of the court over its person. [Feedler v. Schroeder, 59 Mo. 364; Baisley v. Baisley, 113 Mo.
In the Julian case a plea to the jurisdiction was . filed before the defendant took a change of venue, but in this case the defendant appeared to the action without reservation and filed its application for a change of venue,_ which was granted to it to another county and the jurisdictional objection was not made until the case reached the Chariton Circuit Court. Under the previous rulings of this court, we think there can be no doubt that the circuit court of Randolph county obtained jurisdiction over the defendant and the circuit court of Chariton county derived jurisdiction by the change of venue thereto. The Act of 1909, Laws 1909, page 347, passed after this judgment had been rendered and while the appeal was pending in this court, does not affect the case.
Defendant urges that section 997, Revised Statutes 1899, which provides that “suits against corporations shall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business, ’ ’ is void and unconstitutional because in conflict with the Fourteenth Amendment to the Constitution of the United States, in that it denies to the defendant corporation the equal protection of the law. That the circuit court of Randolph county and Chariton county have jurisdiction under the laws of this State, of actions of libel, there can be no doubt whatever; that is to say, they have jurisdiction of the subject matter of this action. Equally well settled is the law that where a court has jurisdiction of a class of cases, any defendant, whether a natural or an artificial person, may confer jurisdiction over his or its person by entering his or its general appearance in a cause of that class, and that when this is done he or it cannot thereafter raise the insufficiency of the service of the process by
II. In logical sequence, we find the next alleged error was the overruling of defendant’s motion to elect. This contention is bottomed upon the construction placed on the petition by defendant’s counsel that the plaintiff had improperly joined in one count two separate and distinct libels, to-wit, one charging that of perjury, and the other charging him with making a false, voluntary affidavit. Obviously, we think this point is not well taken.
In Hughes v. Rees, 4 Meeson and Welsby 204, Lord Abingeb said: “Ton may put into one count all words spoken or written at one time; but I am not aware that •you may put into one count matters published at different times.”
The rule is that a single tort gives rise to one cause of action only and cannot be split up into separate suits and the damages resulting therefrom must be assessed in the same suit. [Bank v. Tracey, 141 Mo. 252.] The action here was based upon one publication only and the injury flowed from this one act. Thus the case presented is not unlike one in which different acts of negligence may be set forth in one count and all constitute one cause of action unless they are inconsistent and self-destructive. In the publication
Nothing said in the case of Flowers v. Smith, 214 Mo. 98, is in conflict with this conclusion. In that case there were various newspaper publications made on different dates' and in different issues of the paper and were united in one count and were clearly distinct and separate causes of action, as was held by this court.
We think there was no merit in the claim of misjoinder, but by answering over and thereby tendering the issue of libel or no libel, the defendant, under the long established rule of this State, waived its motion to elect. [Hof v. Transit Co., 213 Mo. l. c. 465; White v. Railroad, 202 Mo. 539; Paddock v. Somes, 102 Mo. 235.]
III. These questions of jurisdiction having been disposed of, wé are brought to those contentions of the defendant which go to the very merits of the case.
At the close of the plaintiff’s evidence and again after all the evidence on both sides had been introduced, the defendant requested an instruction in the nature of a demurrer to the evidence, which the. court overruled, and this is now assigned as a vital error in the case.
By statute in this State “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 or friends.” [Sec. 2259, R. S. 1899.]
That this publication was clearly libelous, we are all agreed, whether we look to our statute defining a libel or to the common law. “To print and publish of another that he has sworn falsely, or is a perjured scoundrel, is libelous without a colloquium, averring that a judicial proceeding was or had been pending in which legal perjury had been committed, because any publication about a person which tends to excite a sense or feeling of ridicule, contempt, infamy or disgrace is libelous, and if the innuendo gives the language used in the publication a more enlarged signification than the facts in the case justify, it may be rejected as surplusage. See 1 Chitty, 384-385, and authorities there cited, where it is said: ‘But where the new matter stated in an innuendo is not necessary to support the action, it may be rejected as surplus-age.’ ” [Haws v. Stanford, 4 Sneed (Tenn.) l. c. 526 and 527.] The term perjury is expressly used in the publication, thus: “Bill didn’t pretend that he can prove anything like it was proved in Sam’s case, but he says so and so; says this and that, an’ this and that, says so and so, and winds up by denouncin’ in thunder tones every man who would commit a perjury by making a false oath in such case, an’ demandin’ a law that ’ll send them all to the penitentiary. I guess every Democrat in Missouri ’ill get that speech — all hut 8am Coolc.” This plainly insinuates and implies that the
“The effect and tendency of the language used, not its form, are the criterion by which to determine the actionable quality of the words. It is immaterial that the words used concerning the plaintiff are indefinite and uncertain in their meaning if on the whole they are defamatory and were so intended and understood, for, as has been justly remarked, calumny may be as effectually conveyed in artful allusions to collateral matter and oblique insinuations as by the most explicit assertions; and it is well settled that in actions of libel and slander it is permissible to aver and prove that words which have a covert meaning were intended to defame and were understood in a defamatory sense by those who heard or read them. Although the words do not contain a direct affirmative charge that a crime has been committed', yet if they are calculated to induce the hearers to suspect that the person spoken of has committed a crime, they are actionable, and it would seem that the same rule applies not only to imputations of crime but also to imputations of other acts or circumstances to charge which directly is actionable.” [18 Am. and Eng. Ency. Law (2 Ed.), pp. 969, 970, and cases therein cited.]
Under the Constitution of this State, it was the province of the jury, under the instructions of the court, to construe the publication and to draw the inference therefrom that the defendant imputed to plaintiff the crime of perjury. The plain language of the publication, we think, warranted such a finding, irrespective of the innuendoes, which were disregarded by the court in its instruction to the jury. Among other charges in the publication were these: “Most everybody’s that way. . The only thing that explains the difference made between Cook an’ Stoné is that Cook is
In Brown v. Publishers, 213 Mo. 655, Division No. Two of this court had occasion to consider this proposition and adopted the view announced in 18 Amer. & Eng. Ency. of Law, 989, that: “To render words actionable it is not necessary that they should describe the offense with that precision with which.it is necessary to set forth an offense in an indictment, and it
The plaintiff was not hound to establish that the article charged him technically with the crime of perjury. To sustain the substance of his petition it was only necessary that the jury should find that the said publication was maliciously published and had a tendency to provoke him to wrath, or to expose him to public hatred, contempt or ridicule, or to deprive him of the benefit of public confidence and social intercourse, and so the circuit court correctly instructed the jury. Plaintiff did not request the court, by any instruction, to limit or define the issues to perjury, or a false voluntary affidavit, but submitted to the jury the publication as a whole and the jury under the instructions- of the court, as was their constitutional right, responded by finding that the article was libelous, as it clearly was.
But at the request of defendant, the court went further, and in the 14th instruction asked by the defendant advised the jury that the plaintiff complained of the portions of said article set out in instruction number one, because he said they charged him with being guilty: 1, of voluntarily making a false affidavit; 2, of falsely, by swearing, taking an oath prescribed by the law of this State; and 3, by so doing plaintiff had then and there been guilty of the abominable crime, of perjury, and the jury were therefore instructed that unless it appeared from the facts and circumstances proven in evidence that the portions of the publication complained of did in fact charge that plaintiff had been and was guilty of the abominable crime of perjury, or of making a voluntary false affidavit, plaintiff could
Recurring now to the proofs, it was established beyond peradventure that not only did plaintiff not make a false affidavit but that he made no affidavit whatever to the receipts and expenditures of the funds by the Democratic State Committee, either in 1896 or in 1898; that the affidavits required by the Corrupt Practices Act were made by the treasurers of said committees for those years, and for this reason the demurrers to the evidence were properly overruled. But notwithstanding the testimony showed that plaintiff did not make any affidavit as charged, it is insisted by defendant that the plaintiff’s own admissions' on the stand and in his deposition at Independence demonstrated that he knowingly participated in concealing the contribution of Col. Phelps to the campaign expenses in 1896, and therefore was legally guilty of making a voluntary affidavit or perjury as the court might construe the publication; in a word, the contention is that defendant was justified in making and publishing said charges. By section 636, Revised Statutes 1899, it is provided that in actions for libel and slander “the defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances admissible in evidence to reduce the amount of damages.” In this case the defendant denied the allegations of the petition charging that said
In the third paragraph of its answer, defendant sets forth at length the testimony of plaintiff given in the deposition given by plaintiff in the Cardwell suit against the Republic, and avers that the publication of which plaintiff complains in this suit as libelous,
“11. The jury are instructed that it is the privilege of the defendant, as of every other citizen, to' comment in its paper upon all public matters that affect the public welfare and are at the time agitating the
“12. In passing upon the question whether the publication offered in evidence is privileged the jury should take into consideration all the facts and circumstances as they existed at the date of the publication as shown in the evidence and therefrom, together with the article itself, determine whether the same is a proper and legitimate comment upon the action of plaintiff as chairman of the committee and upon the policy and action of the committee; and the jury are instructed that in commenting upon the action of Niedringhaus and the Republican committee in relation to the campaign funds, the defendant in its newspaper bad a right to illustrate the effect and result of said action by commenting upon and calling to mind the actions and conduct of the plaintiff and the Democratic State Committee-in 1896, and to characterize such con
The petition alleged said publication was false and malicious, and whether it was so was a question for the jury under said instructions, which were as favorable as defendant could have required. The circuit court could not have properly taken the case from the jury on this defense. [Tiepke v. Times Co., 20 R. I. 200.] Officers and persons occupying public positions are subject to just criticism, but the constitutional liberty of speech and of the press simply guarantees the right to freely utter and publish whatever the citizen may desire and to be protected in so doing, provided always such publications are not blasphemous, obscene and scandalous in their character so that they may become an offense against the public, and by their malice and falsehood injuriously affect the character, reputation or pecuniary interests of individuals. The constitutional protection shields no one from responsibility for abuse of this right. To hold that it did would be a cruel libel upon the Bill of Rights itself. The defendant tendered this issue of privilege and the court heard its .evidence and gave full and liberal instructions in its behalf, and the jury found that issue against it. It did
IY. There is still another view pressed by the defendant to which we must respond in deference to counsel for the defendant, and that is their insistence that even if the publication is reasonably susceptible of a libelous meaning, yet it was accompanied with such a specification of facts as to demonstrate there was in fact no such crime committed, hence plaintiff had no cause of action. More specifically it is argued that readers of the article would gather merely-that it referred to corporation contributions to political committees for campaign purposes and that in violation of the Corrupt Practices Act the sworn reports of the political committee fraudulently concealed the source of these contributions; that the plaintiff, as chairman of the Democratic State Committee, had received $2100 from a corporation representative as a campaign contribution, and sought to conceal the name of the donor, and that the sworn report required of the committee was incorrect, in that it reported the contribution as coming from plaintiff instead of the real donor, and this sworn-false report was a violation of the Corrupt Practices Act. That no other transactions in so far as plaintiff was concerned was referred to or meant to be referred to.
YI. Again the defendant assigns as error the refusal of instruction number five in these words: “The jury are instructed that all the testimony of Captain King and of the plaintiff relating to a conversation said to have occurred on or about the 6th of December, 1899, is hereby withdrawn from the consideration of
In the first place, the testimony of the plaintiff tending to show that King saw the Zeibig report and that it was not signed by the plaintiff, but by Zeibig and by him alone, was admitted without any objection on the part of the defendant; but for a much better reason a distinct part of the libelous charge was the imputation that the plaintiff had made the affidavit of receipts and expenditures by the Democratic State Committee in 1896 as required by section 7193, Eevised Statutes 1899, and this evidence tended to show that prior to the publication complained of herein the defendant, through Captain King, its general editorial manager, had actual knowledge that said affidavit was not made by the plaintiff, but by Zeibig, and if Captain King had such knowledge it was pertinent for the consideration of the jurors on the question of malice and punitive damages. The plaintiff especially testified that Captain King saw the report and saw that Zeibig had sworn to it, on the 5th of January, 1899, long before the publication complained of in this case was made in the Globe-Democrat. We think that this evidence was clearly competent and the court committed no error in refusing the instruction excluding it from the jury.
As to the alleged errors above considered and discussed we are all practically agreed that there was no reversible error committed in the circuit court.
VII. We are finally brought to the last contention of the defendant that the verdict is so excessive that it was clearly the result of passion or prejudice or both. The jury returned a verdict assessing plaintiff’s damages at $75,000 actual, and $75,000 punitive, damages.
Questions of grave import arise in the consideration of this ground for new trial. Thus it has been urged that, under section 14 of our Bill qf Eights, which provides, “In all suits and prosecutions for libel, the
Section 14 of article 2 of the Constitution of Missouri, as was pointed out in State v. Armstrong, 106 Mo. l. c. 418, 421, had its origin in what is known as Fox’s Libel Act, enacted by the British Parliament in 1792 (32 Geo. Ill), and is but a rescript of that act. Prior to the enactment of the Fox Act it was the rule in England for the judge to direct the jury to find the defendant guilty on proof of the publication, and the other necessary averments, but that act provided that on the trial of an indictment or information for libel the jury might give a general verdict of guilty or not guilty upon the whole matter put in issue before them. It was upon this act the English judges in libel cases directed the jury that whether a publication was a libel was a question of law and fact intrusted to the jury alone. That this power had been given to the jury for the purpose of protecting the inviolable blessings of a free and independent press. And so in the construction of this provision of our Constitution, it was ruled in Arnold v. Jewett, 125 Mo. 241, that the jury’s right to judge of the law, as well as the fact, was confined to the sole question of whether the publication was in fact libelous. That on all other questions, the jury are as much bound by all the other instructions of the court in a libel suit as in any other case. In Sullivan v. Commission Company, 152 Mo. 268, it was ruled that the question of privilege was a question of law for the court, but that malice was a question of fact for the jury, if there was any evidence whatever of malice. In Heller v. Pulitzer Publishing Company, 153 Mo. 213, this court quoted from the opinion of Lord Blackburn in Bank v. Henty, L. R. 7 App. Cas. l. c. 775: “It certainly had always been my impression that
Proceeding then to the consideration of the contention of the defendant that the verdict in this case is so excessive and unreasonable that it should be set aside, it is to be remarked, first, that we are all of the opinion that there was no error in the instructions of the court or in any of its rulings in the admission or-rejection of the testimony or upon its construction of the pleadings in the ease; that the publication, which is a basis of the action, was libelous, we think there can be no doubt whatever, so that the sole question remaining is whether the verdict is so excessive as to indicate that it is the result of prejudice or passion. In our opinion the verdict is excessive and is unusually large,
In Belt v. Lawes, 12 L. R. Q. B. D. 356, in an action for libel, the jury found a verdict for the plaintiff and assessed his damages at 5,000 pounds, and the defendant applied for a new trial on the ground that the verdict was excessive and the majority of the Queen’s Bench Division refused a new trial on the plaintiff’s consent to the damages being reduced to five hundred pounds, and defendant appealed. In the Court of Appeals, Brett, the Master of the Rolls, said: ‘ ‘ The first point in the case is a pure point of law, namely, whether the judgment of the majority of the Divisional Court can in law stand as it is, if the verdict cannot otherwise be impeached, it being founded on the consent of the plaintiff alone that the amount of the damages should be reduced from 5,000 pounds to 500 pounds. In my opinion such judgment can stand. Where the complaint is only that the damages are excessive, and the verdict cannot be otherwise impeached, and it is a case where the plaintiff is entitled to substantial damages, the court has power to refuse a new trial without the consent of the defendant, on the plaintiff’s consenting to the amount of the damages being reduced to such an amount as, if it had been given by the jury, the court would not have considered excessive. It has been argued that this cannot be the right rule, because it is said that if the damages are excessive the court must come to the conclusion that the verdict is wrong, and the inevitable result of that must be a new trial. But the court is asked to exercise its discretionary power, and to say that the jury have given larger damages than they ought to have given. The court does not give damages, but it only says that if a jury had given a sum which was a part of what they have given, the court would not have been dissatisfied, but more than that, as the power of the court is discretionary, it seems to me it is competent to the court to exercise such power
In Baxter v. City of Cedar Rapids, 103 Iowa l. c. 607, it was insisted'that the circuit court had erred in not granting a new trial because the damages were excessive and showed passion and prejudice, and it was said that the action of the court which caused the plain
In Adcock v. Oregon R. R. Co., 45 Oregon 173, the action was for personal injuries, the verdict was for $1650, and a new trial was sought on the ground of the verdict being excessive. The court was of the opinion that the verdict was excessive and should not have been for a larger sum than $825, but upon a remittitur by plaintiff of one-half of the verdict, the motion was overruled. On appeal it was insisted that the court had no power to overrule defendant’s motion for new trial on condition that plaintiff remit one-half of the damages assessed by the verdict. The court said: “The power of the court to require the entry of a remittitur in an action to recover damages for a tort, as a condition to overruling a motion for a new trial, has sometimes been denied, but according to the weight of authority the
In Chicago City Ry. Co. v. Gremmill, 209 Ill. 638, the action was for personal injuries and resulted in a verdict for $12,500; the trial court required the plaintiff to remit $6500, and then overruled the motion. It was assigned as error, that the court erred in entering a judgment on the verdict for $6000', the amount re-remaining after the remittitur was entered. The court said, in the case of Chicago Street Ry. Co. v. Wrixon, 150 Ill. 532, after an exhaustive examination of the authorities in this State: “We are committed to the practice of allowing remittitiors in actions ex delicto, both in the trial and appellate courts, to such sums as shall to the court seem not excessive, and affirming as to the balance of the judgment.” And the practice therein referred to is now too well established to be questioned. [Railroad v. Musa, 180 Ill. 130; Railroad v. Lewandowski, 190 Ill. 301.]
The decisions of this court as to the power of this court'to require a remittitur in actions for unliquidated damages are not uniform. In Grurley v. Railroad, 104 Mo. l. c. 233-4, it was held by Divisional opinion that when it did not appear to be the result of passion or prejudice the verdict was wholly within the province of the jury, and when this court set aside any part of
That the verdict is an unusually large one, must, we think, he conceded, hut in considering whether it evinces prejudice or passion on the part of the jury the nature of the libel, the character and position of the plaintiff, the character and wealth of the newspaper and the extent of its circulation, the motive and malice of the publication, the mental anguish and suffering naturally and necessarily caused by it, together with
It is not necessary to reproduce the remainder of the charges made in the publication, as they are fully set forth in the petition. There is no pretence that these charges were true. The evidence not only showed that the plaintiff had never made the affidavit, nor was guilty of the false swearing attributed to him, but it went further and tended to establish that when a previous charge imputing to him embezzlement of this $2100 contribution had been made by this same defendant, he had, with two friends, gone to the office of the defendant and then and there stated to the editor-incMef that the charge was false, and explained to him fully in regard to the manner of crediting this contribution to himself, and at the time showed to the editor that the treasurer of the committee alone had made affidavit to the accounts of the committee, including this item, and retraction had been made by the newspaper, so that when this libelous article was printed the defendant had full knowledge and notice of its falsity, and yet permitted it to be printed and published and sent broadcast all over the United States and into foreign countries in an edition which amounted to at least 160,000 copies. Indeed, the evidence went further and established that Fitzmaurice, the author of this article, knew that the plaintiff had not made said affidavit before he wrote the article. It is also to he remembered in this connection that this article was published in 1905, and the basis of the said charge was a transaction eight or ten years old, alleged to have transpired in 1896. As already said, no attempt whatever was made to justify this publication by alleging and proving its truth.
Perjury and false swearing are justly regarded as
When we come to consider the mitigating circumstances pleaded by the defendant, we find another article published in defendant’s newspaper, which it pleads as an apology or retraction, but when we come to examine this article it is lacking in all the essentials of a manly and honest withdrawal of the infamous charge. In our opinion, instead of being a fair retraction, it was but an indirect repetition of the charge, because among other things, it says: “So far as Sam Cook was concerned, I tried to let him down easy, as my remarks showed.” Thus insinuating at least that the real facts were more unfavorable to the plaintiff than had been set forth in the article sued on. In Hotchkiss v. Oliphant, 2 Hill (N. Y.) 510, Chief Justice Nelson said: “If the defendant had become satisfied that the charges which he had unwittingly copied were unfounded, common honesty and a decent respect for the rights of the injured party called for an unqualified withdrawal. Hesitation, lurking insinuation, an attempted perversion of the plain import of the language used in the libelous article, or the substitution of one calumny for another only aggravate the original offense and show a consciousness, of the wrong done with
When then it is considered that this libel was printed and published, not in an obscure newspaper of small circulation, but was published in a great metropolitan journal, whose circulation that day amounted to 160,000 copies of its paper, and that, according to its own business manager, was circulated in every State in the United States and in foreign countries, it must be evident, we think, that the measure of damages is not to be estimated as one of ordinary importance only, but that the power for evil and injury to the plaintiff could hardly be estimated. So that while the verdict is a large one and out of the ordinary, so also is the libel a large one. While the verdict is, in our opinion, too large, yet, we cannot say that we believe that it is the result of either passion or prejudice, and therefore we are of the opinion that it is a case in which a remittitur may properly be required of the plaintiff, and if he accedes to it that the judgment should be affirmed for the amount of the verdict less the remittitur. Accordingly it is ordered that if the plaintiff shall remit fifty thousand dollars of the amount assessed for actual damages, and shall also remit fifty thousand dollars from the amount of punitive damages assessed in the verdict, within twenty days, the judgment will be affirmed for twenty-five thousand dollars for actual damages and twenty-five thousand dollars for punitive damages, aggregating fifty thousand dollars. ' Otherwise, the judgment will be reversed and the cause remanded for a new trial.
Concurrence Opinion
While concurring in the majority opinion filed herein, I wish to do so substantially in the language of the opiniop, written and filed by me in Division One of this court.
I will not undertake to make a full statement of all of the libelous charges published of and concerning the plaintiff, but sufficient only upon which to predicate the following observations.
The libelous article sued on is headed:
“OLD POLITICIAN ON PARTY FUNDS.’
“fight of the people.
“ Wrecks Through Covering Up And Fraud In Campaign Contributions.
“The Present Investigation.
“The Thursday Conference. Why It Was Called.
And What May Grow Out Of It.”
This article in so far as relates to plaintiff, after stating he was the chairman of the Democratic State Central Committee in the years 1896 and 1898, and referring to the collection of big campaign funds from interested corporations, amounting in some instances to as much as $5000 or $6000, and turning them into the committee, and publishing them as coming from no one or from some one who never gave a cent, and that he had converted to his own use, or had failed to account for $2500 paid to him by Col. Phelps for campaign purposes, then states that the investigation of Niedringhaus was said to be to try to rub it in on the people; that the Republicans were trying to elect a man Senator who did the same thing Mr. Cook had done, and it was intended to not let the people forget it if it could be helped; that the people were “dead
The article in speaking of the Cardwell case and Mr. Cook’s testimony given therein, at Independence, Missouri, said of him, He is “the man who swore to what wasn’t so,” and that, “Thou shalt not bear false witness.” . . . “Now, Cook ain’t the issue as a public officer, mind you. Sam was a good sheriff of Warren county. He made a good Secretary of State, and administered that office and closed up its accounts without the loss of a dollar to the State. Nothin’ was ever proved against him but what he proved himself in the Independence story; but say, if you don’t think that was enough, ask Sam. Here he comes, once the most popular man in Missouri, away back yonder behind the next lowest man on his ticket, and so far back of him that you’ve got to get a spyglass to see the dust
It proceeds: “After Sam Cook had swore that he contributed $2500 to a campaign fund that was contributed by another man whose name Sam wanted to conceal. ’ ’ Then by way of comment on the foregoing, the article continues: “A man who’ll do what Sam Cook done to serve his party or hisself instead of the Lord, an’ will take the name of the Lord in vain, in swearin’ to an untruth, will never meet their [the people’s] approval.”
After likening Mr. Cook and Senator Stone unto two boys who had stolen a pie, where one was flogged for lying, while the other ate the pie, it proceeds: “But Bill knows that Sam got a good deal of the pie before he was caught in the lie and licked.....Bill knows that Sam got licked as soon as he got caught lying, and that he’ll keep on getting licked as often as he shows up on the ticket.”
Said article contained several other charges of similar character to those before set forth, and in one of them Mr. Cook is accused of “perjury.”
Later, the same author of the foregoing article, wrote another of and concerning Mr. Cook, and it was published in columns of the same paper, the defendant in this case, and among other things it said: “I’ve got myself into trouble with the people I’ve always liked and always got along well with, although.we’ve pulled different ways in politics the last seven or eight years. Here not long ago, telling you’ns that what it was that knocked the old machine out and made Sam Cook, the most popular man in Missouri, run behind
“Say, that thing got me in the worst cross fire I was ever in, and I’ve been under the real thing. Some of Niedringhaus’s friends have jumped on me all spraddled out ’cause they say it was done against him, and friends of Sam Cook have jumped onto me all spraddled out ’cause they say it’s doing Sam a injustice to say he’s like Neidringhaus, for he didn’t swear to it under oath as a true statement of the receipts and expenditures. The official statement under oath was made by the treasurer of the committee they say.
‘ ‘ An now I’m a-goin ’ to have my say. I don’t give a cuss for either Niedringhaus or Sam Cook politically, but I like ’em both personally, and respect ’em both as gentlemen in all the dealin’s I’ve had with ’em. What I said wan’t done to hurt or harm either one of ’em, but a-showin’ of the kind of thing that appeals most powerful to the people of Missouri when you put it before ’em in a right way. So far as Sam Cook was concerned I tried to let him down easy, as my remarks show. I took pains to say that his official record was a straight one, and I recollect say in’: ‘All that’s ever been proved against him he proved himself in his deposition at Independence.’
“Some of Sam’s friends and I hear Sam himself says I accused him of perjury. Not on your life, I don’t see how they make a charge of perjury out of that language, where it says that Sam couldn’t a-been
“The official oath was made by the treasurer of the committee, a man for whom the figgers had been prepared, and who swore to a lie without knowing it, which makes it the same as not swearin’ to a lie at all, they say.
“I don’t know what to say about Niedringhaus, except that he says he swore to it and don’t deny it, but it wasn’t no lie. "When put on his oath at Independence, Sam Cook didn’t lié a little bit, but told the truth that done him up. What he’s a kickin’ about now is in bein’ put in the same class with Niedringhaus in regard to official statements under oath made by chairman of State Committees.”
By resolving these charges to their final analysis, they clearly accuse plaintiff of the following crimes:
First: Of embezzling the $2500 contributed by Col. Phelps.
Second: Of bribing legislators, by saying he sold legislation to corporations in advance in consideration of the large contributions made by them to the committee.
Third: Of perjury, in so many words.
Fourth: Of false swearing, in making an affidavit to a statement showing he had contributed the $2500 while in fact Phelps had contributed it.
There is no pretense that any of those four charges are true, yet three of them charge plaintiff with the commission of as many felonies which, if true, would subject him to imprisonment in the penitentiary, while
These libelous charges were published in the Sunday edition of defendant’s paper, which had about one hundred and seventy-five thousand circulation, thereby carrying these inexcusable calumnies to the homes and firesides of probably that number of people, and there read probably by twice that number of people, and thereby falsely and maliciously whispered into their ears, that plaintiff was a three-fold felon, and that if he had his just deserts he would be behind the bars, wearing the stripes of a convict, and was unworthy to associate with decent and respectable people. It was written long ago that, “ Slander is the vilest whelp of sin,” and if there was any way to multiply the superlative degree, it might with great propriety be applied to libel, for the reason that a libeler as a rule speaks, as it were, in forked tongues to tens and hundreds of thousands of people in immutable language-, where the slanderer speaks to only one in transient and fleeting words.
So, who can correctly estimate and definitely fix the amount of damages sustained' by a person thus libeled? And who is it that can truthfully say that the libelous charges made in the case at bar have not greatly injured and damaged the plaintiff in his business, as well as socially and politically, to say nothing of the mental suffering and humiliation heaped upon him?
But few I dare say in this State can do so, who read the papers and who keep themselves posted upon ordinary public matters. And it is a physical impossibility for plaintiff to correct those great wrongs done unto him, and the only remedy afforded him was to submit his grievances to a jury of his peers as commanded by the organic laws of the State, and ask them to compensate him for the injuries thus sustained, and for
Without any pretense of justification or excuse for its wrongs, defendant comes to this court and complains of the action of the jury in awarding so large a verdict against it, and asks mercy at our hands.
The enormity and irreparable character of the injury and wrong done plaintiff may best be illustrated by a story I once heard or read, which was substantially as follows: A penitent went to her priest and asked the forgiveness of her sins. Among others which were burdening her heart and tormenting her soul, was a slanderous charge she had falsely and maliciously made and put in circulation regarding one of her neighbor women. After repeating it to the priest, he hesitated, but finally said to her, “You have committed a very grievous sin, ’ ’ and requested her to go away and return on the morrow, and he would then see what he could do for her. On the morrow she returned, and he met her at the church yard gate with a goose in his hands, and he commanded her to pluck the feathers therefrom and cast them to the winds. She obeyed, and, after doing so, she again prayed his forgiveness, but instead of doing so, he said to her, “First go out into the highways and hedges and gather up all the feathers you •plucked from the goose and cast to the winds, and bring them to me and replace them upon the goose, and when you have done so I will intercede for the remission of your sins.” Upon hearing those words fall from his lips her heart was filled with sadness, and she said to him that it would be impossible for her to find or gather together all of the feathers, for the wind had scattered them to the four quarters of the earth, and that she could not replace them although found by'her. He then said to her, “My sister, so is it with your slanderous words, you plucked them from an evil heart and put them in circulation, and the wings
The same is true of the case at bar. The defendant cannot recall the hundreds of thousands of libelous words and articles it maliciously scattered throughout the State of Missouri, the United States and through foreign countries regarding the plaintiff; nor can it remove the blot it thereby painted upon the good name and reputation of the plaintiff. All it can do is to pay him in dollars and cents for the damages he has sustained in consequence thereof.
Counsel for defendant do not seem to realize the enormity of the wrong done by their client or the magnitude of the damages inflicted thereby upon plaintiff. Without profit, but with malice, it put in operation the powerful machinery by which its venomous words were sounded and echoed around the world, withering, blighting and blackening his good name and fame— the most valuable, yet the most vulnerable armor of man, when assailed by the public press. No man or woman is capable of withstanding its dreadful fire and onslaughts.
He who, perhaps, drank deeper and more copiously from the fountains of human nature, and who therefore better understood the weakness of man, in writing upon this subject, poured forth in immortal lines the value of a good name as compared to money. He said:
Good name in man or woman, dear my lord,
Is tbe immediate jewel of their souls.
Who steals my purse steals trash; ’tis something — nothing;
’Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name,
Robs me of that which not enriches him
And makes me poor indeed.
Eealizing the truthfulness of the idea there expressed, and in order to protect their good name and
That constitutional provision is section 14 of the Bill of Rights, and reads: “That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”
By reading that provision it will be seen the extreme jealousy with which the people protected and guard the liberty of the press, and by the same act it will be observed that they reserved to themselves the right to determine and punish the press for any abuse of that liberty. The two are handmaids and must stand side by side, and neither must be violated. This extraordinary remedy was reserved to the people in express terms as a counterbalance for the extraordinary liberty granted to the press; this doubtless was for the purpose of preventing tribunals from assuming any power concerning a subject which was expressly reserved to the people.
No intelligent citizen will deny but what the press is one of the four great institutions of the country designed and laboring for the uplift and betterment of the human family. The family circle, the church, the public school and the public press do more good in instructing the mind and in purifying the heart and conscience of man than all other institutions and instrumentalities combined, and any unnecessary assault made upon any one of them is inexcusable. But notwithstanding the great good they are doing, and the jealousy with which they are protected, yet none of
The Constitution even protects the press while publishing false and defamatory matter, and there is no remedy therefor except that stated in the same constitutionaí provision which guarantees to it that liberty. The same reasons which induced the people to grant that liberty and protection to the press, caused them to reserve to themselves the right to remedy the abuse of that liberty, and should cause the courts to hesitate about interfering with the verdict of juries in this class of cases.
It makes the jury in all such cases, under the direction of the court, the judges of the law and the triers of the facts; and in the case at bar, all members of the court agree that the trial court correctly directed the jury as to the law of the case, and that the article published is libelous; and under those facts and circumstances the jury should be granted a wide range in estimating and fixing the damages.
Clearly there is no reason why the verdict in this case should be set aside, even though it be conceded that it is excessive. The rule is, and the practice of this court has been, where a case has been well tried, and the only meritorious objection which can be used against the judgment is the excessiveness of the verdict, to reduce the verdict to a sum which in the judgment of the court would be reasonable and just. [Waldhier v. Railroad, 87 Mo. 37; Smith v. Railroad, 92 Mo. 374; Burdict v. Railroad, 123 Mo. 240-254; Loyd v. Railroad, 53 Mo. 514; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. l. c. 444; Nicholds v. Crystal Glass Co., 126 Mo. 55; Rodney v. Railroad, 127 Mo. 676; Devoy v. Transit Co., 192 Mo. l. c. 226; Markey v. Railroad, 185 Mo. l. c. 365; Stolze v. Transit Co., 188 Mo. 581; Reynolds v. Transit Co., 189 Mo. 408; Hollenbeck v. Railroad, 141 Mo. 97; Chitty v.
But in a case where tire facts are disputed and contested, and the evidence introduced tends to support both, sides thereof, a verdict returned therein which is so excessively large as to be out of all reason so as to raise a presumption that it was the result of prejudice or passion, hatred or ill-will, then, clearly, it would be the imperative duty of the court in an ordinary action at law,' to set the verdict aside and- grant a new trial, for the reason that the verdict in such a case would also raise a presumption that the prejudice or passion, hatred or ill-will of the jury manifested in the size of the verdict also induced and controlled them in finding the facts to be as indicated by the verdict. In all such cases a remittitur would not reach or cure the error, for the reason that if said prejudice and ill-will had not existed, the jury might not have found the issues as they did; or in its absence, they might have found the issues for the other party.
In such a case the entire verdict would be infected with prejudice and be erroneous, and- should be set aside; but upon the other hand, if the entire case, as here, was well tried and no error committed except in fixing the amount of the damages too high, then the entire error can be reached and completely cured by causing the plaintiff to remit a sum sufficiently large to reduce the verdict to what would be reasonable and just compensation for the injuries sustained. [Creve Coeur Ice Co. v. Tamm, supra; Koeltz v. Bleckman, 46 Mo. 320; Doty v. Steinberg, 25 Mo. App. 328; Sheedy v. Union Brick Works, 25 Mo. App. 527; Chitty v. Railroad, 148 Mo. 64.]
This rule as applied to ordinary cases is not only just and reasonable, but is supported by the great weight of authority; and if it is applicable to trials in libel suits, and we can see no reason why it should not be, then clearly the judgment in the case at bar-should not be set aside for excessiveness, for the reason that the article complained of is clearly libelous upon its face, according to all the authorities. So holds the-opinion of my learned associate who wrote the minority opinion. And since the case was well tried in so far-as defendant was concerned, as we all .agree, there is no reason left for the court to set aside the verdict or to grant a new trial.
I am, therefore, of the opinion even if the verdict in the case at bar is excessive, then the error complained of in that regard may be cured by the court
For the reasons before stated, I concur in the majority opinion filed herein by my learned associate, but think the judgment should be for a larger sum.
Dissenting Opinion
DISSENTING OPINION.
Coming to Banc from Division One on the dissent of two judges, this case on reargument was reassigned to my learned brother Gantt whose opinion has become that of a majority. In the divisional opinion it was held there were no reversible errors in rulings on testimony, instructions, the motion to elect or on jurisdiction. It was held, too, that the article complained of was libelous per se and need borrow no aid from the many innuendoes pleaded. On these phases of the case the majority opinion agrees with that in division, except in one particular presently pointed out. .
In the divisional opinion it was ruled that the verdict was só enormous and out of proportion to all other verdicts in all other libel cases in every other civilized country and so out of proportion to the injury done plaintiff and took so little heed of the matters of mitigation established in the case that it bore on its face the unerring stamp of passion, prejudice, favor and a wild caprice abhorrent to a refined and exalted sense of justice between man and man; therefore, it could not stand at all. In the majority opinion in Banc the excessiveness of the verdict is conceded to the amount of two-thirds, vis., $100,000'; but my learned brethren are of the opinion that $100,000 of excess in .-a verdict does not indicate such lack of fair-mindedness an the jury as impeaches it for passion and prejudice. Being so minded, they put the alternative to the plaintiff to surrender two-thirds of his verdict or take a reversal and a new trial. To that result, namely, the sustaining of the verdict for any amount, I cannot agree
Before formulating the grounds of this dissent two observations may be pardoned me as a foreword, vis. r
(a) In the first place, this plaintiff resided at Jefferson City in the county of Cole. The defendant was domiciled in the city of St. Louis. He left his home in Cole and brought his suit in Randolph on the theory that a cause of action arose to him in that county because a few of defendant’s newspapers circulated there. In the Julian case, 209 Mo. 35, it was resolved by a majority of my brethren that such a course was within the statutory right of a person libeled by a corporate defendant. But the tremendous leverage put in the hands of a plaintiff libeled of allowing him to select any one county of the 114 in this State, where-a given defendant, peradventure, may be hated, by the mass of the people because of promulgating views locally deemed unsound on political questions, where jurors’ minds necessarily take color from local bent and bias was considered by the majority opinion in the-Julian case, by the minority opinion and in the Meriwether case, 211 Mo. 199. In the minority opinion such palpable and singular advantage was used, arguendo-, against the construction put by the majority upon section 997, Revised Statutes 1899. But in the majority opinion it was said by our brother Valliant : “We appreciate the force of.the argument of defendant’s counsel wherein it is pointed out that under certain conditions an unfair advantage may be obtained by allowing the plaintiff to select the county in which he may bring his suit, but that argument should be addressed to the legislative department of the State government. The courts must take the law as they find it, whatever they may think of it. ’ ’ Fortunately, I think, for wholesomeness and evenhanded justice in our State, such arguments were addressed “to the legislative department of the State government,” and resulted in an act
Surely it may not be assumed that a man leaves behind his good sense when he sits on the bench. He may not be blind to what everyone else must needs see. In State ex rel. v. Public Schools, 134 Mo. 296, this court was dealing with the administration of the school funds of the city of St. Louis and the right of taxpayers, parents and school children of that city to be freed from the evil clutch of partisan caucuses. In ruling that the hands of a band of politicians should be lifted from the administration of school funds and the management of the schools of that city, our brother Gantt used language in point here, vis.: ‘ ‘ The stream cannot rise higher than its source, and we are dealing with facts and men as they exist and we are not justified in treating this matter from an Arcadian or Utopian standpoint.” Attending to that bit of philosophy, does not a question spring spontaneously, vis., may not the lump of leaven in it leaven the whole mass of meal in this case? For instance: Would it not be
In getting at the heart of the matter, viz., whether this verdict is the product of prejudice or bias, favor or passion, we should consider what the Legislature considered and what (I submit) every just man must consider, viz., the imiuinent danger of that very thing happening. I concede that under possible happy auspices and by great good luck the thing might not happen, but is it not “Arcadian” and “Utopian” to suppose it was likely not to happen? When the leopard changes his spots and the Ethiopian his skin then (and not till then) will it be permitted for any court to assume that a litigant is not putting his very best foot foremost in choosing his counsel or place of trial when he has the liberty of so large a choice in selecting the most promising spot to haul his enemy, the defendant, over the coals for punishment — for the hotter the coals and the more there are, the better his ends are sub-served. For mark (to use the quoted language) “we are dealing with facts and men as they exist. ’ ’ Fore
(b) The Julian case went to the Supreme Court of the United States. The principal opinion by Valliant, J., left a Federal question in that case. There was a majority concurring opinion dislodging that Federal question, so that that august tribunal declined jurisdiction and we may never know what its wisdom, would say on the merits of questions most learnedly discussed by my brothers Valliant and Graves in the Julian case. For myself, I may be permitted a sigh of regret, for the sake of Jurisprudence, that those questions were not set at rest on their very merits by the highest court of the land, before the Legislature once for all wisely swept them aside by its new libel law.
I. I dissent from the majority opinion in so far as it holds, according to my reading, that instruction 13 asked by defendant and modified by the court was error in favor of defendant. I do not think it error at all.
The petition charged directly that the publication pertained to the Corrupt Practices Act. The provisions of the act are set forth in that pleading. It is alleged that defendant wickedly, designedly and maliciously contriving and intending to injure plaintiff in his good name and credit and to bring him into public scandal, contempt, infamy and disgrace with the public generally and among all good and worthy people, and to make it appear that it was the duty of plaintiff to swear to and file a true and detailed account and statement of the receipts and expenditures of the Democratic State Committee, with the names of the persons from
“3'. The court instructs the jury that the statute of this State defines a libel to be the malicious defamation of a person made public by any writing, printing, sign, representation or effigy, tending to provoke him to wrath, or to expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, and if therefore you believe and find from the evidence that the article admitted to have been published by the defendant corporation and complained of by plaintiff in this action was maliciously published and had a tendency to provoke him to wrath or to expose him to public hatred, contempt or ridicule or to deprive him of the benefits of public confidence and social intercourse, then the article in question is libelous and defamatory under the laws of this State.”
By its instruction number four (given) defendant defines perjury. It followed that by asking number thirteen, reading:
“13. The jury are instructed that the plaintiff complains of the portion of said article set out in in*571 struction number one, because he says they charge him with being guilty:
“ (1) Of voluntarily making a false affidavit; and
“ (2) Of falsely by swearing, taking an oath prescribed by the law of this State; and that
“(3) By so doing plaintiff hadi then and'there and thereby been guilty of the abominable crime of perjury.
“The jury are therefore instructed that unless it appears from all the facts and circumstances proven in evidence that the portions of the publications complained of do in fact charge, that plaintiff had been and was guilty of the abominable crime of perjury, then the plaintiff cannot recover in any event. ’ ’
It will be seen therefrom that defendant undertook to limit the alleged libel to the charge of perjury. The court refused the instruction and interpolated in the third paragraph, between the phrase “abominable crime of perjury” and the phrase “then the plaintiff cannot recover in any event,” the phrase “or of making a voluntary false affidavit.” Complaint is made of this amendment, but it is not sound. If the alleged libelous article was so cleverly written that it was fairly susceptible of one meaning or the other, then defendant cannot complain that the court- put both propositions to the jury. In this case that course was warranted. It was defendant’s right (under the particularity of the pleadings) to limit the character of the libel which would meet the statutory definition. The court so instructed, and we perceive no error. When read together, as they must be, the instructions mean no more than that if the jury believed that defendant by making false charges of perjury or of making a false voluntary affidavit against plaintiff, thereby used words having no tendency to provoke him to wrath or to expose him to public hatred, contempt or ridicule or deprive him of the benefits of public confidence or social intercourse,
The statute defines libel, hence plaintiff was entitled to define libel in statutory words (McCloskey v. Pulitzer, 152 Mo. 339; Julian case, supra), although it was once doubted whether that was so (McGinnis v. Geo. Knapp and Co., 109 Mo. l. c. 138 et seq.). So the common law defines negligence, vis., the lack of care according to circumstance, and a plaintiff in a libel suit has no more right to allege the libel to consist of a false and malicious charge of perjury or of making a false and voluntary affidavit, and then turn round and recover because the alleged libelous screed merely had a tendency to provoke him to wrath or to deprive him of the benefits of public confidence or social intercourse or expose him to public hatred or contempt, than has a plaintiff the right in a negligence suit to particularize the elements of the alleged negligence, and then recover on a form of negligence not alleged.
II. We come now to the very bone of contention— damages. Whether $25,000 smart money and $25,000 compensation are too much depends on matter of mitigation. Were there such environment and facts as, considering the personnel of the parties to this suit, dulled the edge of the libel, tended to ease or palliate the charge and thereby commanded a corresponding diminution in the quantum of damages'? I think so. Attending to this view of the case, a bird’s-eye view of the record facts will assist to a just conclusion.
Defendant is a domestic corporation domiciled in the city of St. Louis, having a capital stock of _$500,000 and real and personal property, including the good will of a large business and an Associated Press franchise, making its business and plant worth around $2,-000,000. It has long owned and published in St. Louis a newspaper known as the Globe-Democrat, Republican in politics, of wide circulation and influence, circulating
Plaintiff in years gone was a newspaper man and had been sheriff of Warren county, making a good record. In 1896 and subsequent years he had been a member of the Democratic State Committee, acting as its secretary, and during the campaigns of 1896 and 1898 was the chairman of that committee, bearing the honor of leading and commanding with marked vigor and success his party forces in the elections of those years. Subsequently he had been an efficient Secretary of State, but was defeated as a candidate for that office in the fall of 1904. In February, 1905, he resided at Jefferson City and was connected with a financial institution, known as the Central Missouri Trust Company, as its president — holding no political place or office, but engrossed in private affairs.
While things were in this fix, on the twelfth of February, 1905, in the Sunday edition of the Globe-Democrat, defendant published an article purporting to be written by a correspondent using the pen name of “The Old Politician,” and who, under that title, had been furnishing matter for the Globe-Democrat. “The Old Politician” was Donald C. Fitzmaurice. The record shows him to be a Democrat and the “Old Politician” articles were written in collaboration with two other Democrats whose identity remains to this day undisclosed, no attempt being made to establish it. Fitzmaurice was an experienced newspaper writer of good repute, residing in St. Louis, and before bringing his pen to the Globe-Democrat, had written political correspondence for the St. Louis Republic and other reputable newspapers.
It seems at that time there were two legislative investigations under way — one in the House, the other
The record shows (and it is a matter of history of which we may take judicial cognizance) that the public mind for a long time had been sharply engrossed with the question of the control, partial control or attempted control of political parties by special interests —e. g., corporations, liquor interests and others mentionable. Doubtless the fear that those who had axes, to grind were only easting b'read on political Waters by laying heavy obligations on political committees by large contributions for campaign purposes, which contributions were sometimes disguised and concealed, and the grounded fear of defiling the honor and integrity of the ballot by the use of money, caused the passing of an act properly known as the Corrupt Practices Act — an act to accomplish publicity and sunlight in the political use of money. Public attention was called to lobbying and the danger, through lobbying, that the people’s will would be thwarted by corrupt means or out of gratitude for large and secret contributions to-committee expenses.
But before we speak farther of this article we must go back a little; for the history and record of this case cover several years, and it would be toying with the-facts not to deal with the whole scope of the case in putting a financial estimate on plaintiff’s damages.. Plaintiff was not without the furor scribendi. It must not be overlooked that under this record he deliberately “threw the first stone” and thereby began the war of words culminating in the article complained of. That he who lives in a glass house should never throw stones is taught at the mother’s knee and is a doctrine of use-in libel suits. On November 3, 1901, this plaintiff published a signed article in the St. Louis Republic. It seems that Cardwell and Lyons, one or both, had been writing articles for the Globe-Democrat. Of the
What may have led up to that publication this record does not disclose. We may assume that public discussion on at least some of the topics suggested was at full tide. At once Cardwell sued the publishers of the Republic for libel in the' Jackson Circuit Court. Presently in that case depositions were taken at Independence, Missouri, and Mr. Cook and others testified. The record discloses that the testimony given by plaintiff and the other witnesses was scattered broadcast through the press and was a present and continuing topic of public discussion. In oné of its defenses in the case at bar, defendant pleaded extracts from this testimony and its general dissemination and public discussion by way of mitigation. These extracts so pleaded were admitted by the reply as correct. The following appear among’ them (from Mr. Cook, plaintiff):
“Q. In the campaign of 1896, Mr. Cook, did you receive any money for the Democratic campaign fund from any corporation in this State? A. In 1896?
“ Q. 1896, yes, sir? A. I think I did, yes, sir.
‘ ‘ Q. How much? A. I think Colonel Phelps made a personal subscription of one hundred dollars, and I raised some money around over the State; we had very little help, as I remember it, from any corporate interest. Afterwards, at the close of the campaign, I think he raised for the committee about two thousand dollars.
“Q. Colonel Phelps did? A. Yes, sir.
“Q. Did you put that in your report which was filed with the recorder of deeds ? A. It was put in — the treasurer makes the report, not the chairman.
*‘ Q. Were you with him when he made his report¶ A. Yes, sir.
*578 “Q. Didn’t yon, Mr. Cook, keep a book in which yon kept track of these contributions? A. Yes, sir. It is not absolutely accurate, but I kept it as near as I could.
“Q. As near to it as you could? A. I had absolute confidence in the treasurer.
“Q. This money went into the treasury of the committee? A. Yes, sir.
“Q. How did you report it¶ A. It was reported in my name.
“Q. That it came from you instead of Colonel Phelps? A. Yes, sir.....
“Q. Now, in the campaign of 1898 did you collect any money from corporations of the State for the campaign fund? A. In 1898?
“Q. In 1898; yes, sir? A. I did not. Colonel Carroll gave me a thousand) dollars for the campaign fund of 1898 — I believe is the only man representing a corporation that contributed anything.
“Q. Did he tell you where he got the thousand dollars? A. He did not. I understood it was his own contribution.
‘ ‘ Q. You understood it was his own contribution— did you get six thousand dollars that came from the St. Louis Transit Company? A. I didn’t know of any money that came from the St. Louis Transit Company.
“Q. At any time during that campaign did Mr. J. M. Seibert bring six thousand dollars to the headquarters, which he stated to you that he had gotten from the Transit Company or from the attorney for the Transit Company? A. Mr. Seibert collected some money for the committee. I don’t know that it came from the Transit Company.
“Q. Did he tell you that it came from the Transit Company? A. No, sir; he did not.
‘ ‘ Q. Did he tell you whom he got it from ? A. He told me that Mr. Priest raised the money for him.
“Q. Who is Mr. Priest? A. Sam Priest.
“Q. Yes. A. He is a lawyer of St. Louis.
*579 “Q. Dues lie represent the St. Louis Transit Company? A. I think he does; yes, sir.
‘ ‘ Q. How much currency did he bring in from that source? A. I don’t recall now.
“Q. Was it six thousand dollars? A. I don’t know; possibly it might have been.
“Q. Yon don’t swear that it was not six thousand dollars ? A. No; my understanding was that Mr. Seibert had raised this fund for the use of the party. It never went into the hands of the committee.
“Q. Did he turn any part of it over to yon? A. Part of it; yes, sir.
“Q. How much did he turn over to yon? A. I couldn’t tell without looking over the treasurer’s books,
“Q. Of course you spent it for the committee ? A, I turned it into the treasury of the committee.
“Q. And it was afterwards paid out on vouchers and so forth from you? A. Yes, sir.
“Q. Did Mr. Carroll subsequently raise another five thousand for the committee?. A. I couldn’t say; Mr. Seibert paid it out for the benefit of the committee, also.
“Q. How much did Colonel Carroll raise in this instance? A. I don’t know.
“Q. Was it five thousand dollars? A. Might have been.
“Q. It was some thousands of dollars? A. I don’t think it was five thousand dollars. I know he paid me a thousand dollars.
“Q. Who did? A. Colonel Carroll; and I paid it into the committee in my own name — to the treasurer of the committee.
“ Q. Now, this money that was subsequently collected by Colonel Carroll and given to Mr. Seibert, do you know the amount of that? A. No, sir; I don’t know how much it was.
“Q. Well, was it a thousand dollars? A. Why, I think it was three or four thousand dollars.
*580 “Q. Three or four thousand dollars? A. Tes, sir.
“Q. And what part of that do you say, or did you say — or did Mr. Seibert give any part of that to you as chairman of the committee? A. He turned over — I don’t remember how much; I could tell by looking at the treasurer’s report. Whatever he turned over to me I turned into the treasury, and it is reported as contributed by me; and the balance of the money that Mr. Seibert received was disbursed by himself in the close counties of the State.....
“Q. Do you know that it came from the Transit Company? A. I do not.
“Q. Evidently it came from some corporation? A. My understanding was that Judge Priest had raised the money for the conduct of the campaign.
“Q. Prom what? A. I never asked him. I suppose it was from the corporation interests, probably, that he was representing.”
On cross-examination, plaintiff further testified •as follows:
“Q. Do you know from what source Colonel Phelps raised the $2000? A. I do not.
“Q. That you regarded as his personal contribution at that time? A. No; that was the $2000'in 1896 —Colonel Phelps brought the check there to headquarters, and at the close of the campaign of 1896, a few days after it was over, it was entered upon my books to his credit, later, when we went to make up the statement for publication — l mean the sworn statement of the treasurer, the personal representative of Gov. Stephens insisted—
“Mr. "Walsh: Who was it, just mention it.
“A. (Continuing): The contribution ought not to go in Colonel Phelps’ name, and it was at their request I went over and saw Colonel Phelps and told him the objection to it, and he wrote out an order to the treasurer to credit that in my name; that is how it came*581 it was reported in my name instead of Colonel Phelps’s ón the sworn statement of the treasurer. I don’t .know how he raised it, anything about it.
“Q. That was done at the request of one of Gov. Stephens’s personal representatives? A. One of Governor Stephens’s personal representatives at that meeting. Col. Phelps knows all about that.” . . .
On his re-direct examination plaintiff further testified as follows:
“Q. Who was the personal representative of Mr, Stephens that came and asked you to let the money of Mr. Phelps appear in your name ? A. I am willing to' state that if it is necessary.
“Q. It is necessary, I think; and I will ask you?' A. Mr. E. T. Orear.” . . .
And afterwards appeared E. T. Orear as a witness on behalf of the plaintiff, and being duly sworn, on his examination in chief, testified as follows:
“ Q. Your name is Edward T. Orear. A. Yes, sir.
“Q. Where do you live? A. At Jefferson City,
“Q. Just state what you know with respect to the-contribution of $2000, whose name it should be put in, and who was present at the time the agreement was-made, if you know? A. Shortly after the campaign, shortly after the election, Mr. Cook invited me to come to St. Louis, either by letter or telegram, I have forgotten now which; and up to that time I did not know that Colonel Phelps had contributed anything excepting: $100. Mr. Cook wanted to confer with myself and some others in regard to closing up the work of the campaign.. I met Mr. Cook and Gov. Stone, and I forget whether Mr. Seibert was present or not during the first part, of the .interview — he was during the day, but I am not clear whether he was there first or not. But Mr. Cook first informed me that the bills of the campaign had all ■ been paid, and that in closing up the work they were*582 about $2000' short, and that Colonel Phelps had contributed that money and that he had discharged the indebtedness.
“Q. That who had? A. That is, Mr. Cook had paid all the bills, and that they were then ready to make their report. My recollection is that Gov. Stone first suggested that the contribution of $2000 by Mr. Phelps ought not to appear as having come from him.
“Q. From whom? A. From Mr. Phelps; because of the fact that he was the attorney of a corporation. The matter was discussed there between ns for a short while, and I suggested that I could see no impropriety to its .being credited to some one else provided Colonel Phelps made no objection to it; and it was then that Mr. Cook went up to see Mr. Phelps.
“Q. Cook himself? A. Yes, sir; Mr. Cook; I think he probably went to see him twice — probably did not get to see him the first trip; but anyway, during the day he went to see him twice, and I don’t think there was anything said in the conversation first, as to whom the contribution should be credited to; but finally I was informed that night that Mr. Phelps had given Mr. Cook an order—
“Q. (Interrupting): You were informed by whom? A. Well, I think Mr. Zeibig, or Mr. Cook; I don’t know which.
“Q. Who is Zeibig? A. Mr. Zeibig was the treasurer of the committee — that Mr. Phelps had given Mr. Cook an order on Mr. Zeibig to credit the deposit in Mr. Cook’s name.
“Q. When were you in this conference which you say took place between Mr. Cook and ex-Gov. Stone and yourself; were you there as a representative of Gov. Stephens?' A. Well, I had been associated with Mr. Stephens, and I suppose I had been looked upon as his representative in the campaign to a degree. . . .”
On his cross-examination said Orear testified as follows:
*583 “Q. And you say you first learned of this contribution after the election? A. Yes, sir.
“Q. And when the accounts were being made up? A. Yes, sir.
“Q. For publication,! believe. A. Yes, sir.
“Q. It is the accounts that are required to be made up under the law that you refer to, I believe? A. Yes, sir.
“Q. And there were present, you think, yourself, Mr. Cook and Mr. Zeibig and Mr. W. J. Stone? A. I ana not very clear in my recollection whether Mr. Zeibig was present at the first part of the interview or not, but he was there during the day.
‘ ‘ Q. And it was you that made the suggestion that if Mr.,,Phelps would consent you saw no reason why the $2000 might not be shown in the name of Mr. Cook —as coming from him? A. Yes, sir; I don’t remember the exact words, but that is about the substance of it.
“Q. And in fact, it was on your suggestion that Mr. Cook went up to see Mr. Phelps — or rather upon the suggestion— A. Well, that led to it; I don’t remember just who said he had better go, or anything; but I remember I stated that Mr. Cook having received the contribution, it would be better for him to see Mr. Phelps. . . .
“Q. Well, you kneiv all this had reference to so entering it? A. Yes, sir; I didn’t see the order given by Mr. Phelps to Mr. Cook, but I ivas informed, that he did give him a written order.
“'Q. Yes, sir; and it was agreed there that that should be done? A. Well, that is just exactly what happened there, Mr. Lehman; I have related it.
“Q. Yes, I would infer that it was agreed from that; now, Mr. Orear, did you have any idea that there was any impropriety in the receipt of the money from Mr. Phelps for the campaign funds? A. Well, I decline to answer.” . . .
Let the scene now shift to the winter of 1904-5'. As already said, Mr. Cook had just before been a candidate for Secretary of State. The general public knew of his testimony in the Cardwell case by newspaper and oratorical discussion in that campaign. He had been defeated with his entire ticket except governor. The Legislature was Republican on joint ballot. Mr. Niedringhaus was the Republican caucus nominee for Senator. A holt had been organized and a deadlock followed. He was charged with concealing a large contribution made by the breying interests of this State to the Republican committee of which he was head and treasurer. Two legislative investigations were pending in which the facts were disclosed showing the report required by law from that committee did not disclose the source of that large contribution, but credited it to Mr. Niedringhaus. It was publicly asserted that a “mysterious stranger,’’charged with a mission to break the deadlock and elect a Republican Senator, was on the ground from Washington. Be that as it may, on the twelfth of February, 190®, as said, the article of “The Old Politician” was published. The caption or head-notes in heavy type somewhat shadows forth the purpose of it and ran as follows:
“OLD POLITICIAN ON PARTY FUNDS.
“Fight of the People — Wrecks Through Covering Up and Fraud in Campaign Contributions — The present Investigation — The Thursday Conference, Why It Was Called and What May G-row Out of It.”
But in leading up to his object, Fitzmauriee used the conduct of Mr. Cook as chairman of the Democratic State Committee and his defeat at the polls the preceding November to drive home and clinch his moralizing and political advice. He assumed that Cook had defeated himself by his admissions on the stand in the Cardwell case and had injured his party thereby. Under the allegory of a trip across the American desert on the Old Santa Fe trail to Independence, Missouri, he pictured Mr. Cook as bringing his party in the Card-well case to the same town; the article spoke of him as “the man who swore to what wasn’t so.” It applied to him the injunction, “thou shalt not bear false witness,” leading up to it in this way:
“That’s when your Missourian gagged, an’ bucked, an’ kicked, till he knocked the dashboard out an’ run away with the whole darned outfit. He’d stood Stone. He made a bad face over him, but swallowed him, alum an’ all. That’ll show you that he could stand anything but Cook.
“Now, Cook ain’t the issue as a public officer, mind you. Sam was a good sheriff of Warren county. He made a good Secetary of State, an’ administered that office an’ closed up its accounts without the loss of a dollar to the State. Nothin’ was ever proved against him but what he proved himself in that Independence story, but say, if you don’t think that was enough, ask Sam. Here he comes, once the most popular man in Missouri, away back yonder behind the next lowest man on hist- ticket, an’ so far back of him that you’ve got to get a spyglass to see the dust he’s a-raisin’. Say, we were all against him. Republicans, Democrats an’ all of us. There’s no such thing as party lines when
It uses the expression, “After Sam Cook had swore that he contributed $2500 to a campaign fund that was contributed by another man whose name Sam wanted to conceal.” It says, “A man who’ll do what Sam Cook done, to serve his party or hisself instead of serving the Lord, an’ will take the name of the Lord in vain in swearin’ to an untruth will never meet their [the people’s] approval.” After telling a story of two boys who stole .pie and how one got licked for lying while the other ate the pie, it states, “But Bill knows that Sam got a good deal of thé pie before he got caught in the lie and licked .... and I guess Bill knows that Sam got licked as soon as he got caught lying, and that he’ll keep on gettin’ licked as often as he shows up on the ticket.” Other statements of the same kind are made, in one the word “perjury” is used.
In explaining how these charges came to be made in that form, Fitzmaurice claims that although he knew at the time of the Cardwell depositions that Mr. Cook was chairman and not treasurer of the committee, and although he knew the law required the treasurer and not the chairman to make the affidavit, yet he got momentarily confused by the fact that Mr. Niedringhaus had acted in both capacities for the Republican committee and for the moment treated Mr. Cook as filling both places on the Democratic committee.
On February 26,1905, Fitzmaurice returned to the matter of his prior article, in the Globe-Democrat. After dealing with the Republican senatorial situation at some length and pointing out that legislative pay would be cut down to a dollar a day at about that time in the spring called “groundhog’s day,” and that if a Senator
On the tenth of May following plaintiff sued for $100,000 actual, and $150,000 exemplary, damages, $250,-' 000 in all. The verdict came in for $150,000 — eleven jurors signing. That verdict was made up of a blending of actual and punitive damages, half and half. It is a coincidence of only possible value to Jurisprudence that while the jury cut away $100,000 from plaintiff’s original estimate, my learned brethren have now cut away $100,000 from the jury’s estimate — both reductions proceeding by equal leaps and bounds, turn about being fair play as the saying goes. Bearing in mind now that defendant pleaded the testimony of Mr. Cook and Mr. Orear taken in the Cardwell depositions and the broad dissemination of that testimony and a State-wide discussion in the press and on the “stump,” continuing down during the campaign of 1904 as a live public question, by way of mitigation of damages, and bearing in mind that plaintiff went to trial solemnly admitting in his reply to defendant’s answer that he and Orear gave that testimony in the Cardwell deposition, we come to the trial itself. At that trial Mr. Cook took the stand in his own behalf. The principal opinion sets out his testimony in extenso. We need only call attention to the fact that having admitted, for the purposes of the trial, that his former testimony was correct, he testified at the trial that it was poorly taken and poorly reported. Nevertheless, in substance, he admitted getting $2000 from Col. Phelps and giving Col. Phelps credit in his own book for that sum, Ziebig’s books giving a like credit at the start; that, a meeting was called shortly after the campaign was closed of parties interested in the accounts of the committee; that Mr. Cook attended that meeting and went to St. Louis for the very purpose of at
The deposition of Col. John H. Carroll was read. He testified that when he gave $1000 to Mr. Cook he told him, Cook, “I don’t want this matter advertised.”
The deposition of Col. William H. Phelps was also read. He testified that he gave Mr. Cook $2000 in person and got Zeibig’s receipt for that sum; that Mr. Cook came to his office and personally solicited the contribution, stating that Grov. Stephens had been drawn upon.for that sum but had declined to pay because he had contributed all the law would permit for campaign purposes; that subsequently Mr. Cook came to him and told him that the leaders of the party, because of wit
The deposition of Mr. Seibert was also read. He testified that he got money from Priest and Carroll in currency and from the brewers and gave it to Mr. Cook. (Note — This is the money Mr. Cook caused to be credited to his own name in the treasurer’s report of 1898.)
So that it is fair to say that the testimony at the trial substantially agrees with that given by Mr. Cook in the Cardwell depositions.
With the record in this fix defendant’s learned counsel argue that, whether the charge is that of perjury (i. e., a felony, R. S. 1899, sec. 2033) or that of making a false voluntary affidavit (i. e., a misdemeanor, R. S. 1899, sec. 2036) a dilemma is sprung on plaintiff, impaling him on either horn. That is, in either event the charge is true, hence a demurrer lay and it was error to overrule it. This argument runs on the accepted doctrine that all who intentionally participate in or procure the commission of a misdemeanor are principals in the eye of the law, and every one who participates as an accessory before the fact in the commission of such a felony as perjury, is himself (broadly speaking by including the idea of subornation) guilty of perjury. [State v. Wagster, 75 Mo. 107; State v. Fredericks, 85 Mo. 145; State v. Orrick, 106 Mo. l. c. 119 et seq.; State v. Edgen, 181 Mo. l. c. 590; R. S. 1899, sec. 2364] The postulate assumed by counsel is sound as an abstract proposition in morals and law. In violations of law the hidden hand is as guilty as the open,
True, in the case at bar, plaintiff alleged the publication was false, and defendant, with many specific denials, denied generally the allegations not admitted; but “no principle is better established than that the truth of slanderous words cannot be given in evidence under the general issue either as a defense or in mitigation of damages.” And the plea of justification must with precision directly and distinctly allege the truth-of the defamatory matter charged. We need not dis-cuss the question whether a plaintiff should be non-suited if, in making his case in court, he unequivocally admitted the truth of the charge as made, for that question is not in this case.
We take it as a sound proposition to be granted by all men as of course that if defendant, instead of charging Mr. Cook with actually swearing to a lie, had contented itself with publishing excerpts from his testimony given in the Cardwell case (and which testimony had become an established historical fact universally blazoned abroad in a matter affecting the public interests and involving the duties of officials or quasi-officials in their relations to the public) and had commented thereon to the effect that while Mr. Cook made no affidavit yet he intentionally and effectually made the path straight and plain for the treasurer to make a misleading and false one, that he had industriously caused the documentary data to be prepared and furnished whereby the public would be deceived and the good purposes of the law adroitly circumvented and struck down to the ground, it would have been guilty of no libel, although it had further charged that what Mr. Cook did was precisely as bad as what the treasurer did or Mr. Niedringhaus was charged with doing. Nor would it have been libel if the newspaper had drawn a political moral by pointing out that defeat was bound to follow the exposure of such violations of a good law, although persons guilty, in that behalf were merely actuated by mistaken sentiments of party pride and fealty as contradistinguished from the general public weal.
The premises considered, the sum of the matter is
But this court has never yet ruled that it will allow to stand for any amount a verdict that is the evil product of passion, prejudice or favor. With all due deference the majority opinion plows around that proposition by holding that the verdict was not so enormous as to indicate the presence of those abhorrent influences. In Chitty v. Railroad, 148 Mo. 64, after a most exhaustive and learned review of the authorities upon the question we held by way of conclusion as follows (p. 82): “If this was a case where the judgment of the circuit court was otherwise errorless a remittitur would be proper under the old rule, but under the law as it is now interpreted,
Speaking of “prejudice and passion,” they may be traced in no other way except through, their visible result in swollen and inflamed verdicts. Sometimes misconduct can be shown and a verdict arrested because of it. Sometimes the cause of the prejudice and inflammation may be traced to improper and bitter invective of counsel or a misstatement of facts. But courts would be powerless indeed if they could not reason from effect back to cause or if they had no way of discovering passion and prejudice except in palpable misconduct of some one or more jurors in the trial or of misconduct of counsel. In this case no such misconduct appears. Indeed eloquent counsel for respond
Let us examine the records of the appellate courts of Missouri in libel and slander suits. Those cases include libels and slanders by and of the high and the low, by and of the rich and the poor, the strong and the weak, women and men. Therein damages were assessed for libels and slanders running the whole gamut of possible defamation. The schedule is instructive and fully sustains our estimate of this verdict.
Estes v. Antrobus, 1 Mo. 197. Slander. “Thief.” Judgment for plaintiff; no amount given. Affirmed.
Anthony v. Stephens, 1 Mo. 254. Slander. “Murderer.” Judgment for plaintiff for one cent. Reversed and remanded on plaintiff’s appeal.
Watson v. Musick, 2 Mo. 29. Slander. “Plogstealer,” etc. Judgment for defendant. Reversed.
Cooper v. Marlow, 3 Mo. 188. Slander. “Forgery.” Judgment for plaintiff; no amount given. Reversed and remanded.
Adams v. Hannon, 3 Mo. 222. Slander (Plaintiff a woman.) “I [meaning defendant Hannon] stroked her [meaning plaintiff].” Judgment for plaintiff; no amount given. Reversed and remanded.
Williams v. Harrison, 3 Mo. 411. Slander. “You stole two of my hogs.” Judgment for plaintiff; no amount given. Reversed and remanded.
Dyer v. Morris, 4 Mo. 214. Slander. “She has gone down the river with two whores to a goose-horn.” Female plaintiff. Judgment for plaintiff; no amount given. Reversed and remanded.
Barnard v. Boulware, 5 Mo. 454. Slander. Words not given. Plaintiff nonsuited. Affirmed.
Hibler v. Servoss, 6 Mo. 24. Slander. “He had sworn a lie.” Judgment for defendant. Affirmed.
Moberly v. Preston, 8 Mo. 462. Slander. “She had a child” (fornication). Female plaintiff. Judgment for plaintiff for $1300. Affirmed.
Palmer v. Hunter, 8 Mo. 512. Slander. “Perjury.” Judgment for plaintiff for $946. Affirmed.
Harris v. Woody, 9 Mo. 112. Slander. “Swearing alie.” Judgment for defendant. Affirmed.
Edgar v. McCutchen, 9 Mo. 759. Slander. “Carnal knowledge of a mare;” using unprintable word. Judgment for plaintiff; no amount given. Affirmed.
Sutton v. Smith, 13 Mo. 120. Slander. “Mrs. Sutton stole my corn.” Judgment for defendant. Affirmed as to finding; reversed as to costs.
Fallenstein v. Booth, 13 Mo. 127. Slander. “Stole my note. ’ ’ Judgment for plaintiff for $1000. Affirmed.
Self v. Gardner, 15 Mo. 180. Slander. “Stealing a dollar.” Judgment for plaintiff for $250. Affirmed.
Stieber v. Wensel, 19 Mo. 513. Slander. “Ye are whores.” Female plaintiff. Judgment for plaintiff; no amount given. Affirmed.
Perselly v. Bacon, 20 Mo. 330. Slander. “Swore a lie before grand jury. ’ ’ Demurrer sustained. Reversed and remanded.
Dowd v. Winters, 20 Mo. 361. Slander. “False swearing.” Plaintiff nonsuited. Reversed and remanded.
Pasley v. Kemp, 22 Mo. 409. Slander. “A rogue;” and “stealing,” etc. Verdict for plaintiff for $750. Plaintiff remitted $250. Judgment for $500. Affirmed.
Hudson v. Garner, 22 Mo. 123. Slander. “Whore. ’ ’ “Whorish mother,” — adultery with a negro. Female plaintiff. Judgment for plaintiff for $3000. Affirmed.
Street v. Bushnell, 21 Mo. 328. Slander. ‘‘Theft. ’ ’ Plaintiff nonsuited. Affirmed.
Johnson v. Dicten, 25 Mo. 580. Slander. “Stealing corn.” Judgment for plaintiff; no amount given. Reversed and remanded.
Birch v. Benton, 26 Mo. 153. "Slander. “Whipping wife; ” “ D — d sheep-tilling dog. ’ ’ Judgment for plaintiff ; no amount given. Reversed and remanded.
Speater v. McKenzie, 26 Mo. 255. Slander. “Whipped his mother.” Demurrer to petition sustained. Affirmed.
Weaver v. Hendrick, 30 Mo. 502. Slander. “Larceny.” Judgment for plaintiff for $3000. Affirmed.
Coghill v. Chandler, 33 Mo. 115. Slander. “Larceny.” Judgment for plaintiff; no amount given. Affirmed.
Curry v. Collins, 37 Mo. 324. Slander. “He is a bushwhacker.” Demurrer to petition sustained. Affirmed.
Pennington v. Meeks, 46 Mo. 217. Slander. “Stole my hog.” Judgment for plaintiff; no amount given. Affirmed.
Atwinger v. Fellner, 46 Mo. 276. Slander. Words not given. Judgment for plaintiff; no amount given. Affirmed.
Bundy v. Hart, 46 Mo. 460. Slander. “Burning a barn.” Judgment for plaintiff; no amount given. Reversed and remanded.
Buckley v. Knapp, 48 Mo. 152. Libel. “Lack of chastity.” Female, plaintiff. Judgment for plaintiff for $5000. Affirmed.
Barbee v. Hereford, 48 Mo. 323. Slander. “Perjury.” “Swore to a d — n lie.” Judgment for plaintiff ; no amount given. Affirmed.
Price v. Whitely, 50 Mo. 439. Libel. “An imp of the devil; ” “ Cowardly snail. ’ ’ Judgment for plain tiff; no amount given. Affirmed.
Elfrank v. Seiler, 54 Mo. 134. Slander. Words in Dutch, charging Elfranks (woman plaintiff) as follows: “Elfrank! that mean people; whoring folks!” Non-suit. Reversed and remanded.
Polston v. See, 54 Mo. 291. Slander. ‘ ‘ Stealing. ’ ’ Judgment for plaintiff for $500. Affirmed.
Clements v. Maloney, 55 Mo. 352. Slander. “Forgery.” Judgment for plaintiff for $200. Affirmed.
Rammell v. Otis, 60 Mo. 365. Slander. ‘ ‘Larceny, ’ ’ and “keeping false books.” Judgment for plaintiff; no amount given. Eeversed and remanded.
Johnson v. St. Louis Dispatch Co., 65 Mo. 539. Libel. ‘ ‘ Grand Larceny. ’ ’ Judgment for plaintiff; no amount given. Affirmed.
Boogher v. Knapp, 76 Mo. 457. Libel. ‘ ‘ Convicted and sentence to prison.” Judgment for plaintiff; no amount given. Affirmed.
Coe v. Griggs, 76 Mo. 619. Slander. “Stealing;” “D — d thieving scoundrel.” Judgment for defendant. Affirmed.
Landis v. Campbell, 79 Mo. 433. Libel. “Excommunication;” “False and malicious statements.” Judgment for plaintiff; no amount given. Eeversed.
Christal v. Craig, 80 Mo. 367. Slander. “Perjury, larceny, adultery.” Female plaintiff. Judgment for plaintiff for $500. Eeversed and remanded.
Legg v. Dunleavy, 80 Mo. 558. Libel. ‘ ‘ Dishonesty in business.” Judgment for defendant. Affirmed.
Lewis v. McDaniel, 82 Mo. 577. Slander. “Biggest thief on this creek;” “hog stealing.” Judgment for plaintiff for one cent. Affirmed.
Trimble v. Foster, 87 Mo. 49. Slander. “Thief . . . a d — n thief.” Judgment for defendant. Eeversed.
Noeninger v. Vogt, 88 Mo. 589. Slander. “Defrauder, incendiary and murderer.” Judgment for defendant on demurrer. Reversed and remanded.
Caruth v. Richeson, 96 Mo. 186. Libel. “Corruption in office.” Judgment for defendant. Affirmed.
Boogher v. Knapp, 97 Mo. 122. Libel. ‘ ‘ Convicted of conspiracy and libel.” Judgment for defendant. Affirmed.
Hyde v. McCabe, 100 Mo. 412. Libel. “False swearing.” Judgment for defendant on demurrer. Reversed and remanded.
Powell v. Crawford, 107 Mo. 595. Slander. “Larceny. ’ ’ Plaintiff nonsuited. Affirmed.
McGinnis v. Geo. Knapp & Co., 109 Mo. 131. Libel. ‘ ‘ Bribery. ’ ’ Demurrer to petition sustained. Reversed and remanded.
Mitchell v. Bradstreet Co., 116 Mo. 226. Libel. “Assigned” — said of a commercial firm. Judgment for plaintiff for $5500. Affirmed.
Callahan v. Ingram, 122 Mo. 355. Slander. ‘ ‘ Downright thief.” Judgment for plaintiff for $5500. Reversed and remanded on instructions.
Fulkerson v. Murdock, 123 Mo. 292. Slander. Words not disclosed. Judgment for plaintiff for $1350. Affirmed.
Arnold v. Jewett, 125 Mo. 241. Libel. “Falsely representing defendants.” Judgment for defendant. Affirmed.
St. James Military Academy v. Gaiser, 125 Mo. 517. Libel. “Teachers dancing,” etc. Defendant’s objection to the introduction of testimony sustained. Plaintiff nonsuited. Reversed and remanded.
Nicholson v. Rogers, 129 Mo. 136. Slander. “Keeping a whorehouse. ’ ’ Judgment for plaintiff; no amount given. Reversed and remanded on instructions.
Hancock v. Blackwell, 139 Mo. 440. Slander. “Larceny from a dwelling;’ “adventuress and destined to become noted crook.” Female plaintiff. Judgment for plaintiff for $3500. Reversed and remanded on improper evidence.
McCloskey v. Pulitzer Pub. Co., 152 Mo. 339. Libel. “Mistreatment of wife,” etc. Judgment for defendant. Reversed and remanded on instructions.
Taylor v. Pullen, 152 Mo. 434. Slander. Words not given. Judgment for plaintiff for $801. Affirmed.
Heller v. Pulitzer Pub. Co., 153 Mo. 205. Libel. “Embezzler;” “Shipped out.” Court instructed jury to find for plaintiff. Judgment for plaintiff; no amount given. Reversed and remanded.
Bray v. Callihan, 155 Mo. 43. Slander. “A villainous reptile” — “not fit to be in a decent community. He is not fit to go with deeent girls,” etc. Objection to introduction of evidence sustained; nonsuit. Reversed and remanded.
St. L. Clo. Co. v. Hail D. G. Co., 156 Mo. 393. Libel. “Fake advertisement.” Judgment for defendant. Affirmed.
Finley v. Steele, 159 Mo. 299. Libel. “Tyrannical, abusive and indecent.” Young lady school teacher, plaintiff. Judgment for defendant on mandatory instruction. Affirmed.
Stark v. Geo. Knapp & Co., 160 Mo. 529. Libel. “Lobbyist — corruption, etc.” Judgment for defendant. Affirmed.
Jones v. Brownlee, 161 Mo. 258. Libel. “Adultery.” Female plaintiff. Judgment for defendant. Affirmed.
McCloskey v. Pulitzer Pub. Co., 163 Mo. 22. Libel. Same as 152 Mo. 339, supra. Judgment for plaintiff for $6558. Motion for new trial sustained because of excessive verdict. Affirmed.
Wagner v. Scott, 164 Mo. 289. Libel. “Charges affecting plaintiff’s professional and personal standing.” Nonsuit on mandatory instruction. Reversed and remanded.
Weltmer v. Bishop, 171 Mo. 110. Libel. “Misc.able charlatans,” etc. Judgment for plaintiff for $750. Reversed.
Minter v. Bradstreet Co., 174 Mo. 444. . Libel. “Attack on credit and responsibility.” Judgment for plaintiff for $30,000. New trial granted, because excessive, etc. Judgment for plaintiff for $27,000 on second trial. Affirmed.
Carpenter v. Hamilton, 185 Mo. 603. Slander. “Stealing paint.” Judgment for plaintiff' for $800. Affirmed.
Ukman v. Daily Record Co., 189 Mo. 378. Libel. “Transfer of stock of cigars for $1.” Plaintiff non-suited. Affirmed.
Julian v. Kansas City Star, 209 Mo. 35. Libel. “Did well in a legislative way,” etc. Affirmed for $15,000 damages.
Meriwether v. Knapp & Co., 211 Mo. 199. Libel. “Hypocrite, tricks, falsehood, political associate of boodlers,” etc. Judgment for $10,000. Reversed and remanded.
Brown v. Globe Printing Co., 213 Mo. 611. Libel. “Perjury,” etc. Judgment for $12,000. Affirmed.
Brown v. Knapp & Co., 213 Mo. 655. Libel. “Perjury,” etc. Judgment for $10,000. Affirmed.
Flowers v. Smith, 214 Mo. 98. Libel. Many charges reflecting on official integrity. Judgment for $6000. Reversed and remanded.
Branch v. Knapp & Co., 222 Mo. 580. Libel. “Bribery,” etc. Judgment for $10,000. ' Reversed.
Meriwether v. Knapp & Co., 224 Mo. 617, same as 211 Mo. 199. Libel. Judgment for plaintiff for $6000. Affirmed.
Barber v. St. L. Dis. Co., 3 Mo. App. 377. Libel. “Adultery.” Female plaintiff. Verdict for plaintiff for $3500. Remittitur for $1000. Judgment for plaintiff for $2500. Reversed and remanded for instructions.
Blackwell v. Smith, 8 Mo. App. 43. Slander. “Thief,” etc. Judgment for defendant. Affirmed.
See: Memorandum cases in 8 Mo. App., pp. 561, 591.
Salvatelli v. Ghio, 9 Mo. App. 155. Libel. Attaching blame to Priest in stealing, etc. Judgment for defendant. Affirmed.
Hawkins v. Globe Printing Co., 10 Mo. App. 174. Libel. “Adultery.” Female plaintiff. Judgment for plaintiff for $1000. Affirmed.
Meyrose v. Adams, 12 Mo. App. 329. Libel of title. Judgment for defendant. Reversed and remanded.
Hillebrand v. Dreinhoefer, 13 Mo. App. 586. (Appendix; Mem. Case, no amount given.) Affirmed. See also: Appendix, 14 Mo. App. 601.
Hermann v. Bradstreet Co., 19 Mo. App. 227. Libel. “In the hands of the sheriff.” Judgment for plaintiff for $600. Reversed and remanded on pleadings.
Lanius v. Druggist Pub. Co., 20 Mo. App. 12. Libel. Charging plaintiff with traveling through country and representing defendant, etc. Judgment for plaintiff for $2000. Affirmed.
Mix v. McCoy, 22 Mo. App. 488. .Slander. “Larceny of hogs.” Judgment for plaintiff for $500'. Affirmed.
Wood v. Hilbish, 23 Mo. App. 389. Slander. “Stealing.” Judgment for plaintiff; no amount given. Reversed and remanded.
McMurry v. Martin, 26 Mo. App. 437. Libel. (See letter on pp. 441-2 for grossly indecent and scandalous charges made.) Judgment for plaintiff; no amount given. Reversed and remanded on instructions.
Lally v. Cantwell, 30 Mo. App. 524. Slander. “False statements, causing a discharge from profitable employment.” Demurrer to petition sustained. Reversed and remanded.
Elder v. Oliver, 30 Mo. App. 575. Slander. “Larceny.” Judgment for plaintiff for $75. Affirmed.
Boyce v. Aubuchon, 34 Mo. App. 315. Slander. “Burglary and larceny.” Judgment for plaintiff; no amount given. Reversed and remanded.
Morgan v. Rice, 35 Mo. App. 591. Slander. “Thief.” Judgment for plaintiff for $500'. Affirmed.
Houston v. Woolley, 37 Mo. App. 15. Libel (Attachment for). “Larceny,” and other crimes. Special judgment of $500 against property. Special judgment made general and affirmed.
Baldwin v. Walser, 41 Mo. App. 243. Libel. “Notice of dissolution of partnership.” Demurrer to petition sustained. Affirmed.
Wagner v. Printing Co., 45 Mo. App. 6. Libel. “Embezzlement.” Judgment for plaintiff for $2000. Affirmed.
Baldwin v. Fries, 46 Mo. App. 288. Slander. “Thief.” Judgment for plaintiff; no amount given. Affirmed.
Nelson v. Wallace, 48 Mo. App. 193. Slander. Husband and wife, plaintiffs. Charging wife with “Fornication, while single.” Judgment for plaintiff for $1800. Reversed and remanded on instruction.
Manget v. O’Neill, 51 Mo. App. 35. Libel. “Fakir,” “Confidence man,” etc. Judgment for plaintiff for $600. Affirmed.
Unterberger v. Scharff, 51 Mo. App. 102. Slander. “Thief.” Verdict for plaintiff for $1500. Renuttitur, $750. Judgment for $750. Reversed and remanded on instructions.
Fulkerson v. Murdock, 53 Mo. App. 151. Slander. “Stealing.” Judgment for plaintiff for $1350'. Reversed and remanded on account of error in admission of evidence. Certified to the Supreme Court. Judgment of the circuit court affirmed in Supreme Court. (123 Mo. 292.)
Walker v. Hoeffner, 54 Mo. App. 554. Slander. Same as 51 Mo. App. 46. Judgment for plaintiff for $500 ($250 on each count). Affirmed as to first count. Remittitur ordered for $250.
Bridgman v. Armer, 57, Mo. App. 528. Slander. “Thief.” Judgment for plaintiff for $400. Reversed and remanded on account of refused instructions.
Liske v. Stevenson, 58 Mo. App. 220. Slander. “Stealing.” Demurrer to evidence sustained. Non-suit. Reversed, and remanded on plaintiff’s appeal.
Spurlock v. Lombard Inv. Co., 59 Mo. App. 225. Libel. Advertising a “Trustee’s Sale.” Judgment for plaintiff for $700. Reversed.
Crecelius v. Bierman, 59 Mo. App. 513. Slander. ‘ ‘ Forgery. ’ ’ Judgment for plaintiff for $500. Reversed and remanded.
Schmidt v. Bauer, 60 Mo. App. 212. Slander. “Defamation” .of female plaintiff. Judgment for plaintiff for $1500. Reversed and remanded.
Lewis v. Humphries, 64 Mo. App. 466. Slander. ‘ ‘ Larceny. ’ ’ Judgment for plaintiff; no amount given. Reversed and remanded.
Crecelius v. Bierman, 68 Mo. App. 34. Slander. ‘ ‘ Forgery. ’ ’ (Supra, 59 Mo. App. 521.) Judgment for plaintiff; no amount given. Affirmed.
Ferguson v. Chronicle Pub. Co., 72 Mo. App. 462. Libel. “Gambling,” “Craps.” Judgment for plaintiff for $300. Affirmed.
Linville v. Rhoades, 73 Mo. App. 217. Slander of title. Judgment for plaintiff; no amount given. Affirmed.
McAtee v. Valandingham, 75 Mo. App. 45. Slander. Female plaintiff charged with borrowing and keeping an obscene book for months. Judgment for plaintiff for $500. Reversed and remanded on instruction.
Arnold v. Sayings Co., 76 Mo. App. 159. Libel. “Larceny.” Judgment for plaintiff for $1500'. Affirmed.
Michael v. Matheis, 77 Mo. App. 556. Slander. Female plaintiff. “Common whore.” Judgment for plaintiff for $325. Affirmed.
Baldwin v. Boulware, 79 Mo. App. 5. Slander. “Arson.” Judgment for plaintiff; no amount given. Affirmed.
Alderson v. Auerswald, 80 Mo. App. 370. Slander. “Perjury.” Judgment for plaintiff for $200. Reversed.
Hall v. Jennings, 87 Mo. App. 627. Slander. “Stealing.” Judgment for plaintiff for $2000. Affirmed.
Hess v. Gansz, 90 Mo. App. 439. Libel. “Defamation of character. ’ ’ Judgment for plaintiff; no amount given. Reversed and remanded.
Butts v. Long, 94 Mo. App. 687. Slander. ‘ ‘ Slander of title.” Judgment for defendant on demurrer. Affirmed.
Weber v. Lane, 99 Mo. App. 69. Libel. “Disorderly house.” Judgment for plaintiff for $500. Be-versed.
Fish v. S. L. Ptg. & Pub. Co., 102 Mo. App. 6. Libel. “Bogus Beformer,” etc. Judgment for plaintiff for $500. Beversed and remanded.
Friedman v. Pulitzer Co., 102 Mo. App. 683. Libel. “Forgery,” etc. Verdict for plaintiff for $2800 — new trial granted. Affirmed.
Dunlevy v. Wolferman, 106 Mo. App. 46. Slander. Female plaintiff accused of carrying meat out of store. Verdict for $875. Beduced, and judgment for plaintiff for $500. Affirmed.
Butts v. Long, 106 Mo. App. 313. Slander. “Slander of title.” Judgment for defendants. Affirmed.
Kersting v. White, 107 Mo. App. 265. Slander. Female plaintiff. ‘ ‘ Fornication. ’ ’ Judgment for plaintiff; no amount given. Beversed and remanded.
Duncan v. Williams, 107 Mo. App. 539. Libel. Female plaintiff. “Convicted and fined $1.” Judgment for defendant. Affirmed.
Midland Pub. Co. v. Trade Journal Co., 108 Mo. App. 223. Libel. “Fake.” Affirmed as to first count ($500); reversed as to second.
Israel v. Israel, 109 Mo. App. 366. Slander. Female plaintiff. “Whore and s — n of a b — h.” Judgment for plaintiff for $1270. Affirmed.
Brown v. Wintsch, 110 Mo. App. 264. Slander. Female plaintiff. “Fornication,” etc. Judgment for plaintiff; no amount given. Affirmed.
Farley v. Pub. Co., 113 Mo. App. 216. Libel. ‘ ‘ Dishonest conduct. ’ ’ Judgment for plaintiff for $400. Affirmed.
Yager v. Bruce, 116 Mo. App. 473. Slander. “Thief.” Judgment for plaintiff for $1000'. Eeversed and remanded. Improper evidence. Kenworthy v. Journal Co., 117 Mo. App. 327. Libel. “Perjury.” Judgment for plaintiff; no amount given. Eeversed and remanded.
Overton v. White, 117 Mo. App. 576. Slander. “Fornication.” (2d appeal of 107 Mo. App. 265.) Judgment for plaintiff for $2000. Affirmed.
Meriwether v. Knapp & Co., 120 Mo. App. 354. Libel. “Denouncing a politician as a criminal; connected with Ed. Butler.” Verdict for plaintiff for $5000. Eemittitur. Judgment for $4500. Affirmed.
Dust Sprayer Mfg. Co. v. Western Fruit Grower, 126 Mo. App. 139. Libel. (Tendency of whole article libelous — false representation.) Demurrer sustained. Affirmed.
Maginn v. Schmick, 127 Mo. App. 411. Libel of title. Judgment for plaintiff; no amount. Affirmed.
Payton v. Clothing Co., 136 Mo. App. 577. Slander. “Dirty thief.” Judgment for plaintiff; no amount given. Affirmed.
If my figures are correct the total amount of damages assessed in libel and slander suits in this State in the ninety years of its existence, in cases that were affirmed .as well as those reversed, ascertainable from the printed volumes of appellate courts, is $184,576.02'. Mr. Cook recovered within $34,578.02 of as much as all the others put together. Are we to be told that such a verdict does not irresistibly bespeak passion and prejudice? The amount of damages left standing is less than one-third and more than one-fourth of the total damages assessed in all cases of libel or slander that ever reached an appellate court in Missouri. Doubtless the defendant can suffer the loss and still
It was said of Mr. Justice B uller that in writing down the reasons of the judgments he delivered he looked as well before as behind in order to keep within reasoned precedents and avoid making bad ones. I have been told that it was once said of soothsayers in very olden times that two of them could not meet in the highway without smiling at each other. If $10.0,000 of excess in a verdict be not indubitable evidence of prejudice and passion how can we hereafter (without smiling at each other) ever-hold in any case of tort that any amount of excess in any verdict indicates prejudice and passion? Nay more, as rules of law are not established for one case or for one day but for all time and all cases of like character, therefore it seems to me that in this case we have struck down the recognized rule of reason and law hitherto guiding us in deducing prejudice, and passion from such an inflamed excess of damages as makes a just man instinctively cry out against it. Sure am I that no exigency of the law either requires this verdict to stand or a new and anxious precedent to be established. Therefore, I respectfully dissent from the conclusions reached by my esteemed brethren.
Concurring fully in what is said by Lamm, J., in Ms dissenting opinion, I wish by way of emphasis to add a few thoughts upon the results of this case upon future jurisprudence in this State. The opinion, after reviewing several late cases, in my judgment foreign to the real issues in this case, says:
“The rationale of these late cases is that the fact that a verdict is too large does not itself indicate that the jury was actuated by passion or prejudice where there ivas no error in the admission or rejection of testimony or in the instructions of the court and no misconduct on the part of the jury was shown and the evidence established that the plaintiff w.as entitled to a substantial verdict, and that in such case .if the plaintiff would consent to a remittitur of a part of his verdict, the defendant could not complain.”
If this be the law, then this court has erred a great many times in reversing and remanding cases on the ground that the verdict indicated passion and prejudice upon the part of the jury. The most recent instance is that of Partello v. Railroad, 217 Mo. 645. This case, which in my judgment announces the rule of law in this State from the earliest, date up to the present case, comes from our learned brothers of Division Two, all of whom concur in the present opinion. In the Partello case, there was no error in the admission or rejection of evidence; there was no error in the giving or refusing of instructions; there was no proof of the misconduct of the jury. In other words, every element of the new doctrine announced in the present case, was open and obvious in the Partello case, yet our learned brethren in that case said that the verdict itself was evidence of passion and prejudice and reversed and remanded the cause without a suggestion of remittitur. In so doing, they followed every prior precedent in this State, and were right, bnt the announced doctrine hereinabove
But to the real issue in the present case. There is, as in the Partello case, often no means of detecting the passion and prejudice of a trial jury, except by the amount of the verdict. It is no evidence-that there was no passion and prejudice on the part of the jury because the record discloses that the trial court did its duty with reference to the admission of the testimony and the giving of the law. To my mind, if a painstaking trial judge has excluded from the jury all improper evidence and then given to them proper instructions, and yet an unconscionable verdict is returned, that fact alone is the strongest evidence of passion and prejudice. If the court admitted improper evidence and an excessive verdict resulted we might attribute this to error of the court, but if the court did its duty, then we can trace a grossly'excessive verdict to no other source than to the passion and prejudice of the jury. Generally speaking passion and prejudice of a jury cannot be shown other than through the verdict. Jurors imbued with passion and prejudice, do not proclaim that fact from the house-tops, but it is locked up within their breasts, until it is brought to the public gaze through the verdict. So that instead of urging that there is absence of passion and prejudice by reason of absence of error in the course of the trial, the exact opposite should be said. In other words a grossly excessive verdict based upon a record without
I repeat, what I have said before, that when the judges of a court are so shocked by the enormity of a verdict, that they feel that they should not permit it to stand, without cutting it down one-half, or in this instance cutting it down two-thirds, such verdicts should be declared to be the result of passion and prejudice and a new trial unconditionally awarded.
Passion and prejudice, if such exists, vitiates the whole verdict, and not a part of it. This doctrine has so often been announced by the courts that citation of authority is useless. In fact, my brothers in effect concede this in the opinion, by announcing the new rule, quoted supra, for ascertaining whether or not there was passion or prejudice.
Under the holding in the present case and others to be mentioned, reversing and remanding a cause for passion and prejudice is a lost doctrine in Missouri. Whilst in the present case it is urged that the absence of error in the admission of testimony is evidence of no passion and prejudice, yet we have met all situations in tort cases-in this and the case of Moore v. Transit Company, 226 Mo. 689 (handed down at this sitting), should there be error in the admission of evidence. In the Moore case it is conceded that evidence was improperly admitted, and further conceded that the verdict was so grossly excessive as to require a remittitur of one-half of the amount. In other words, where we find that there is no error upon the part of the trial court, there is no sufficient evidence of passion and prejudice to disturb the whole verdict, but if on the other hand we chance to find that the court did commit
Personally, I think that the doctrine of remittitur in tort cases is without foundation in law or logic, but being the established doctrine of the court, I bow to it, but in so doing I think it well to take our bearings upon the vital question as to what shall be sufficient evidence of passion and prejudice to demand at our hands the reversal of a case for retrial before an impartial jury.
To my mind the verdict in this case is so grossly excessive as to indicate passion and prejudice upon the part of the jury. If not in this case, I can hardly conceive of one wherein the doctrine would obtain.. The action of my associates in reducing a $150,000 verdict to $50,000, proclaims the grossness' of the verdict. Even-handed justice demands a new trial in this case. .The passion wrapped up in the excessiveness of this .verdict cannot be eradicated by the paring knife of a remittitur. It permeates the whole verdict and the whole judgment should be set aside and the cause retried.
