This is аn action for libel, in which the plaintiff recovered judgment and the defendant appealed to this court..
At the return term the defendant appealed specially and filed a plea to the jurisdiction of the Circuit Court of Cole County. The plea to the jurisdiction was, in substance, that defendant was a Missouri corporation engaged in publishing a newspaper, called the St. Louis Post-Dispatch, in the City of St. Louis, where its principal office is located and that at all times mentioned in plaintiff’s petition it had no office or agent in Cole County. It was alleged that'the service of summons was made upon defendant by the Clerk of the Circuit Court of Cole County sending the petition and summons to the Sheriff of the City of St. Louis and that no other service was had; and, that defendant had made no voluntary appearance in the Circuit Court оf Cole County. The plea alleged that the paper containing the alleged libel was first published in the City of St. Louis.
The defendant then alleged, in its plea to the jurisdiction, that if the statutes of Missouri are construed as warranting service in this manner and compelling defendant to appear in the Circuit Court of Cole County when individual defendants in libel suits can only be sued in counties of their residence, then the statutes violate the Constitutions of Missouri and of the United States in that they deny to defendant the equal protection of the laws.
The plea to the jurisdiction was overruled. The defendant then demurred to the petition on the ground that the petition on its face showed that the court had no jurisdiction. The demurrer was overruled. A change of venue was then taken by defendant to the Circuit Court of Callaway County, where the case was tried by the court and a jury. A verdict was rendered in favor of plaintiff in the sum of $20,000, but before defendant’s motion for a new trial was passed upon plaintiff remitted
As was stated, this is an action for libel. The petition is in two counts. In the first count the plaintiff alleged that he was the Warden of the State Penitentiary and “that by the provisions of the laws of this State, the plaintiff as such warden at all times hereinafter mentioned had and exercised the general control and supervision over the government, discipline and police regulations of and appertaining to the said penitentiary.” He alleged that the defendant newspaper published an article charging him with barbarous and archaic treatment of prisoners in the penitentiary.
In the second count of the petition, the same allegation is made as to the plaintiff’s conduct. It was then alleged that the defendant published another article defamatory of the plaintiff of the same general nature. It was alleged that the second article was a purported letter from a convict in the penitentiary. The letter is set forth in full in the petition. The convict, in the letter, complained of the treatment of prisoners in the penitentiary, and stated, in substance, that many prisoners were severely whipped with a leather whip on their bare backs. The letter also stated that prisoners were punished by compelling them to stand on their feet, flat on the stone floor, with their arms extended above their heads and their wrists chained by hand-cuffs to a ring fastened in the wall of a prison cell. It was stated that they stand in that position from 6:30 a. m. to three p. m., and again from three p. m. to nine p. m.; that they receive one slice of bread at six o ’clock in the morning, and another one at three o’clock in the afternoon ; that they were given water, but no other food, and that they were compelled to sleep at night, without bedding or cover, in the cell upon a board upon the cell floor. This treatment of prisoners was criticized as horrible, ignorant, brutal and unjust, and it was said that many prisoners because of such treatment, left the penitentiary “with murder in their hearts, determined
The letter also stated that one Steve Willis was put in the rings and kept there a great length of time until he made a confession to the officials where he had gotten some whisky found on his person. The convict stated that a confession “rung from a man under torture” has no value in a court of law and asked why such a confession should be given value in the penitentiary. It was alleged that this letter from the conviсt was published with comment by the defendant. The comment was that the letter was published as a statement of an intelligent man for what it was worth, and that the defendant stated “we ask Warden McClung and the members of the Board of Prison Inspectors if tnese charges are true. We ask Governor Major if they are true. We ask a through investigation to determine their truth or falsity.”
The answer of defendant alleged that the penitentiary at Jefferson City was a public institution of the State, and that plaintiff was its warden; that defendant published a newspaper in the City of St. Louis, known as the St. Louis Post-Dispatch and that it wrote the articles. mentioned in the petition of the plaintiff as Warden of the Penitentiary. The defendant alleged that the penitentiary had in it 2500 prisoners, and that the management, government and discipline thereof wero matters of the highest public interest and concern to the people of Missouri, and that defendant and every citizen of the Statе had the right to discuss, criticize and comment upon the conduct and management of the penitentiary and its various officials. It was alleged that defendant had the right to criticize the plaintiff
The answer alleged that before the publication of the alleged libels complained of a prisoner named Steve Willis had been punished for refusing to tell the prison officials where he obtained a bottle of whisky whichliad been found in his possession; that Willis was placed in a cell in solitary confinement, hand-cuffed, and his hands chained to an iron ring, fastened to the wall, the ring being placed so that his hands and arms were raised several inches above his head; that he was compelled to stand in this posture for twenty consecutive days, for 14% hours a day; that he was not allowed to leave his cell at any time and only had one slice of bread at six o’clock in the morning and another at three o’clock in the afternoon, and had nothing else to eat during the twenty days, and that at night he was compelled to sleep upon a bare board laid upon the concrete floor of the cell without bedding or covering of any kind. It was alleged that at the end of twenty days Willis was unable to bear up longer, and that he' made a false confession to the prison officials that he obtained his whisky from another prisoner named Wright; and that thereupon the prison officials released Willis and seized Wright and hand-cuffed and chained him, and that in order to obtain a release Wright confessed, and thereupon Wright was released. The answer also alleged that prior to the publication of the articles complained of, plaintiff and his deputies had caused various inmates of the penitentiary to be stripped of their clothing and their hands tied, and whipped upon there bare backs with a heavy leather strap. It was alleged that these matters were commonly known and discussed in the public press at the time both articles in question were published.
It is alleged that these articles were published for the purpose of bringing about reform in the management and discipline of the penitentiary, and that the statements of facts in the articles were substantially
Tbe reply denied tbe new matter in tbe answer.
At tbe trial, tbe evidence showed that Steve Willis was put in the rings for 20 or 21 days; that be was given a slice of bread at six o’clock in tbe morning and was put in tbe rings at 6:30 in tbe morning, and taken down at three in the afternoon and given another slice of bread, and was put back in tbe rings and kept there until nine o’clock at night, and then compelled to sleep on a board laid upon tbe concrete floor of the cell, without covering or bedding.
On cross-exаmination plaintiff stated that such was tbe discipline inflicted upon Steve Willis. He stated that be thought Willis was let down at three o ’clock and not put back again. But be also said: “I do not know at what time be was put up and let down.” He stated that be kept men in the rings 30 or 40 days. He stated that be regarded this form of punishment as proper. He said that Willis was punished for having a bottle of whisky on bis person, and ‘ ‘ that be was not strung up ’ ’ to compel him to state where be bad gotten bis whisky. He said, though, that Willis was let down shortly after be made bis confession that Wright bad given him tbe whisky, and that Willis was let down because the officials though be bad been punished enough.
' Tbe testimony of tbe night guard and tbe day guard in tbe punishment ball at the time Willis was strung up in tbe rings was that Willis was put in tbe rings at 6:30 in tbe morning, taken down at .three, put back at 3:30 and kept there until nine o’clock. Willis himself also testified to tbe same effect.
Tbe evidence showed that four or five prisoners were whipped with a leather whip on their bare backs during the time tbe plaintiff was Warden of tbe penitentiary. This evidence was given by tbe plaintiff, on
It was also given by two former members of the Board of Prison Inspectors who had witnessed the whipping or two negroes who were whipped for lighting. They stated that these prisoners were whipped with a strap that was two to four feet in length, attached to a wooden handle, and that the* whipping was done by the Deputy Warden, and that the prisoners cried out that they would quit fighting if the Deputy Warden would quit whipping them. It was stated that when they were whipped they had their hands fastened to a ring in the wall, and that their clothing was stripped off their backs* and that they were hit five or six licks on their bare backs.
I. First, is the Missouri statute, Section 1755, Revised Statutes 1909, authorizing the institution of this su^ the Circuit Court of Cole county constitutional? That section reads as follows:
£<Sec. 1755. Suits for libel against corporations shall be brought in the county in which the defendant is located, or in the county in which the plaintiff resides; and when suit is instituted in the county in which the plaintiffs resides, summons may be issued to and served by the sheriff of the county in which the defendant is located.” , [Laws 1909, p. 347.]
It applies only to suits for libel against corporations.
Section 1751, Revised Statutes 1909, the statute covering the question of the venue in libel suits, and many other suits, against individuals, provides that suit shall be brought in the county where the defendant resides, or where the plaintiff resides and the defendant may be found.
Section 1754, Revised Statutes 1909, relating to suits against corporations, provides that the suit shall be brought in any county where the cause of action ac
It is earnestly insisted by appellant that Section 1755, Revised Statutes 1909, denies to corporations .charged with libel the equal protection of the law, and that it has been so decided by the prior judgments of this court. For respondent it is also strenuously argued that this statute does not deny to defendant the equal protection of the laws of Missouri, and that it has not been so decided by the prior judgments of this court. The question has been discussed learnedly by counsel for both parties, both in the printed briefs and in the oral arguments. An approach to the solution of the question will be made by making a short reference to the prior decisions of this court on this question.
Julian v. Kansas City Star Co.,
But in Houston v. Pulitzer Publishing Co.,
Jones v. Pulitzer Publishing Co.,
Again, in Davidson v. Pulitzer Publishing Co.,
So then we conclude that since the decision in Hоuston v. Pulitzer Publishing Co.,
We believe that the rule laid down in Houston v. Pulitzer Publishing Co.,
■ The Supreme Court of the United States therefore laid down the rule that the property, and other rights, of the citizens were protected by this amendment when several citizens have associated themselves together under'the sanction and authority of the State, for the purpose of transacting business and have brought into existence a legal entity called a corporation. These entities have received legal sanction from a very early period in the common law, and have been and are now receiving legal sanction in all of the States of the Union.
No extended discussion of the authorities need be made holding invalid many state statutes v'hich deny to corporations and individuals the equal protection of the laws. Such a discussion would serve no useful purpose at this late date. Nowhere is the matter more clearly discussed than in Gulf Railroad Co. v. Ellis,
Concluding the opinion, at page 165, Mr. Justice Brewer, said: “It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and that in all cаses it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection. Tested by these principles the statute in controversy 'cannot be sustained. The judgment of the Supreme Court of Texas is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.” See also Cotting v. K. C. Stock Yards Co.,
Learned counsel for respondent place great reliance upon Cincinnati Street Railway Co. v. Snell,
A personal injury suit was brought against the defendant corporation in an Ohio court and the plaintiff under the statute took a change of venue. The trial resulted in a verdict in favor of plaintiff. It was affirmed by the Supreme Court of Ohio. A writ of error was sued out to the Supreme Court of Ohio by the defendant railroad company. The Supreme Court of the United States held the statute valid and not in violation of the equality clause of the Fourteenth Amendment. The
We understand the Supreme Court of the United States to hold that this is a reasonable classification, and that the defendant corporation was not denied the equal protection of the laws of Ohio, though a plaintiff against an individual defendant could not by the same means take a change оf venue to another county. The court pointed out that in the forum to which the cause was removed the cause was conducted in the same way under the same rules of pleading and practice and of substantive law that would have been applied in the county where the suit was instituted. We do not understand the opinion to hold that the Legislature of a state may enact a general venue statute providing that suits of the same nature shall be brought in the county of the residence of the defendant where the defendant is an individual, and not at the residence of the plaintiff, but that suits may be brought by the plaintiff in the county of his residence if the defendant is a corporation. The Ohio statute involved no such question. Under the Ohio statute the plaintiff might change the venue to another county from the county where the corporation had its principal office or principal place of business when the
Learned counsel for respondent argue that the rule was laid down in Cincinnati Street Railway Co. v. Snell,
It is also strenuously argued by counsel for respondent that if Section 1755, Revised Statutes 1909, is not valid the personal plaintiff in a libel suit must go to the domicile of the defendant to bring suit if he is libeled, and that in the case of corporations publishing papers of large circulation in the cities of the State this would be very unfair to the personal plaintiff who does not live in one of these large cities where the corporation has its domicile. This we think is an argument more properly addressed to the Legislature of the State than to the courts. It may be conceded that the venue statutes of the State need general revision, but it is not the function of the courts to make that revision. The Legislature
So then following the guide laid down by this court in State ex rel. v. Fort, 210 Mo. l. c. 526, as to the determination of the constitutionality of legislative enactments, viz., “to ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void unless the nullity and invalidity of the act are placed in their (the court’s) judgment beyond reasonable doubt,” we have concluded that the statute in question violates constitutional mandate.
It was suggested by the California court as is shown in the above quotation, that an act of a Legislature which granted the right to a corporation to have the suit brought where the land was located and denied the right to a natural person would be held arbitrarily discriminative withоut hesitation. Apply that thought to the statute under consideration, which deals differently with corporate libelers and individual libelers. Would not the courts without a moment’s hesitation declare unconstitutional a statute which provided that in suits against a natural person charged with libel the action might be begun in the county where the plaintiff resided, though the natural person was a non-resident of the county, but as to corporations the suit could not be brought in' the county where the plaintiff resided, but
Learned counsel for appellant cite many cases in their brief to support thеir argument. Time and space prevent a discussion of these authorities. They have been carefully read and considered, but have all been found distinguishable and indecisive of the matter in question. We therefore, conclude: first, that though Section 1755, Revised Statutes 1909, has not actually been passed upon by this court, yet, this court in passing upon Section 997, Revised Statutes 1899, laid down a general principle of constitutional law that condemns the thing attempted by the Legislature in enacting Section 1755; and, second, that under the decisions of this court the Supreme Court of the United States and the courts of last resort of other states, Section 1755, Revised Statutes 1909; is void, in that it contains an inequality and makes a classification bearing no reasonable, just or proper relation to the class made.
II. We are also of the opinion upon the merits of the case that the judgment should have been 'for the defendant below. In our opinion thе case should not have been sent to the jury. There can be no ques-^ion ^ this ^me that Wizens of this State, through newspapers and otherwise, have the right to criticise the official acts of the public officers of this State. The rules relating to defamation where the party alleged to have been defamed is an individual in private life do not apply where the individual alleged to have been libeled is a public official and where the alleged libelous matter is as to the conduct of the individual as a public official, viz., Warden of the State
As we have stated the authorities in this country are numerous to the effect that there exists a qualified privilege of free comment upon public acts of public officials. [See Black v. State Co., 93 S. C. 467, 77 S. E 51; Briggs v. Garrett, 111 Pa. St. 404; Jackson v. Pittsburgh Times, 152 Pa. St. 406; Mulderig v. Wilkes-Barre Times, 215 Pa. St. 470 ; Burt v. Newspaper Co.,
It is the duty and province of the court to determine whether the matter spoken or written about is a matter of public interest. There can be no doubt but that the matter written about in this case wаs of great public interest. [Diener v. Chronicle Publishing Co.,
The matters of fact stated in the convict’s letter which is the subject of the action in the second count were shown by the defendant to be substantially true. The evidence as to whether the matters of fact were true or false was adduced, in the main, by the plaintiff and his witnesses. It was supplemented by the evidence of the defendant. There was no attempt, however, upon the part of plaintiff to controvert the evidence of the defendant.
It is also the duty and function of the court to determine whether the comments upon the facts, the criticism, the discussion of the fact, are qualifiedly privileged. This, too, is a question for the сourts and not the jury. [See the authorities above.] In our opinion the comments were qualifiedly privileged.
And in McClung v. Star-Chronicle Co.,
Nor do we think that the defendant exceeded its qualified privilege of fair comment upon the official conduct of the plaintiff in joublishing that part of the convict’s letter that stated that Steve Willis was strung up for the purpose of obtaining a confession from him from whom Willis received a bottle of whiskey. The plaintiff warden denied that Willis was strung up to obtain a confession from him, but stated that he was strung up for punishment for having whiskey in his
“Under the facts in evidence it was the undoubted right of the defendant, and of all others, to discuss the failure of the bank and the official conduct of plaintiff in connection therewith. Was this right of comment restricted to a restatement of the naked facts, without drawing inferences or, expressing oрinions thereon, or did the right of comment mean the right to discuss the facts and place thereon the writer’s own construction, and to express his opinion of the motives which actuated the officer in his failure to examine and close the bank and protect the public, regardless of whether the opinion was right or wrong, provided it was based upon facts and was not malicious ? The two facts that plaintiff and one of’ the owners of the bank were close political friends, and that this insolvent bank had not been examined for two years, during which time no other bank in the district had escaped examination, fully warranted the inference of that relationship as the cause of the plaintiff’s omission to examine this bank. Indeed, the comment suggesting the motive follows as the shadow of the imputation already cast by the facts previously stated. Plaintiff’s failure to protect the public by closing the bank may have been due to neglect or inadvertence, or to his lax enforcement of the law as to that bank because of his political friendship for the owners. It will not do to say that the right of comment would permit the defendant to suggest the first and most favorable explanation, but deny to it the right, in good faith to suggest the second, which was fully warranted
The important fact is that the defendant made no substantial misstatement of fact as to what the public official did. The motive attributed to the plaintiff was not unwarranted in view of the facts. Without doubt it is not libelous, in a сase of this sort, where the motive of the public official is difficult to ascertain, to attribute to the public official a .motive which is warranted by the facts and circumstances.
Nor was there any proof of express malice in this case. As we have stated defendant had a qualified privilege to criticize and censure the public acts of the plaintiff. This privilege though, as we have stated, is a qualified privilege. It is not an absolute privilege. There are instances of absolute privilege in the law of defamation where one is not liable, though his statements of facts are false and defamatory, but this case is not of that type. The courts in this State, following the weight of authority both in England and in this country, hold that this qualified privilege to criticize and censure the public acts of public officials does not exist where the defendant is actuated by malice. Malice in an ambiguous term-. In these cases it means the presence оf the improper motive upon the part of the defendant. The matter has been well put by a scholarly English write'r as follows, Salmond on Torts, p. 427:
“ A statement is said to possess a qualified privilege when, although false and defamatory, it is not actionable without proof of malice. Malice means the presence of an improper motive. A statement is malicious when it
The burden of establishing an improper motive upon the part of the defendant was upon the plaintiff in this case. [Cook v. Pulitzer Publishing Co.,
Plaintiff attempted to prove malice by introducing in evidence other articles in the. defendant’s newspaper relating to the same matter. We have carefully examined these articles and we do not believe that they tend, to prove that the defendant was discussing the plaintiff’s conduct as a public official for any improper purpose. They only show that plaintiff’s conduct as a public official was being discussed and censured to bring about needed reform in the penitentiary management, in this State, as the defendant viewed the matter.
There are many assignments of error by appellant relating to the admission and exclusion of testimony and the giving and refusing and modification of instructions. Many of the assignments present questions that deserve serious consideration. They have not, however, been decided, in view of -our holding that the trial court. had no jurisdiction and that the plaintiff made out no case of libel under the Constitution and laws of this State.
For the foregoing reasons the judgment below in favor of the plaintiff is reversed.