JOHN A. LOGAN WARREN v. PULITZER PUBLISHING COMPANY, a Corporation, Appellant
78 S. W. (2d) 404
Division One
December 21, 1934
In this connection it should be pointed out that the Produce Exchange Bank is not made a party defendant in this action as it should have been. [9 C. J. 1230; Crawford v. Aultman & Co., 139 Mo. 262, 272, 40 S. W. 952; Voorhis v. Gamble, 6 Mo. App. 1.] No objection, however, was made on this ground and at the trial the trustee in the deed of trust raised the question of the Produce Exchange Bank being an innocent purchaser and entitled to protection as such. As the case must be reversed and remanded, that bank, if still interested, should be made a party and be protected in its lien unless it takes the position that it has an adequate remedy at law by suit on defendant‘s personal note.
The trial court as a court of equity, having acquired jurisdiction of this cause and the parties, will not stop short of determining all the issues and doing complete justice. To do this it may be necessary to take an accounting of the rents and profits of this property and to whom paid and also of the necessary expenditures in preserving the property.
We also think that on the authority of Woolum v. Tarpley (Mo.), 196 S. W. 1127, and Buckingham v. Williams (Mo. App.), 9 S. W. (2d) 839, the court should determine the amount due the Produce Exchange Bank as a bona fide purchaser of the secured Mayer note for $1500 held by it as collateral security and enter a personal judgment for plaintiff against defendant Frank Yeoman for such amount. If the bank occupies the position of an innocent purchaser of the Mayer secured note for $1500, its rights are to be determined with reference to that note and it is not material to inquire into the extent or amount of protection the bank was entitled to when occupying a like position with reference to the Beard deed of trust for $1000.
The result is that the case is reversed and remanded with directions to the trial court to proceed in accordance with this opinion. Ferguson and Hyde, CC., concur.
PER CURIAM: — The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur.
Green, Henry & Remmers for appellant.
Plaintiff‘s petition alleged:
“That plaintiff was . . . a minister of the Gospel laboring as such at his calling in Winnebago County, Illinois,” and “that said publication was likely to and did raise the inference and communicated to the public the ideas and statements that the plaintiff had seduced Hazel Lamb and that he had had sexual intercourse with her by force and that he had attempted to have sexual intercourse with her by force and that he repeatedly had sexual intercourse with her and that he had enticed her to come to him out into the dark for improper purposes and that he was untrue to his wife and that he hated old women and would not speak to them and that he was unfit to be a minister of the Gospel and that he was immoral and unchaste and that he was a hypocrite and a libertine and that he was dishonest.”
Defendant‘s answer admitted the publication, denied that it was false, defamatory or libelous; alleged that the statements in the article concerning plaintiff were true; but that defendant refrained from publishing anything about plaintiff until after he had been tried by, found guilty and expelled from the church; stated that the article was a fair account of the church trials of plaintiff, which were matters of great public interest; alleged that the article was published in good faith, without knowledge of falsity, without malice, and was therefore privileged in law; and also alleged that Chicago and other Illinois papers had published similar articles prior to this publication. The answer also alleged that plaintiff‘s reputation was bad before defendant‘s article was published.
Plaintiff‘s reply denied the allegations of the answer “except that a committee of a body known as the Rock River Conference heard charges against plaintiff, and that a majority of said committee passed a resolution forbidding him to act as a minister of the Methodist Church.” The reply further alleged:
“The proceedings of said Rock River Conference with reference to plaintiff were not proceedings in good faith, but were irregular and fraudulent proceedings, and were conducted and carried through
by members who formed said majority of said committee of said Conference, and by other members of said Conference, who knew that said charges were false, but irregularly and fraudulently rendered and caused to be rendered said resolution of expulsion, and this action and the hearing were originated and controlled and dictated by said opponents and personal enemies of plaintiff, . . . and plaintiff‘s appeal was dismissed without his knowledge and consent . . . by the wrongful acts of his chief counsel . . . induced to take such action by threats and persuasion and misrepresentation of said opponents and personal enemies.”
The article, complained of, was published as a full page of the magazine section of the Sunday Post-Dispatch on November 13, 1927, with pictures below the headlines of plaintiff, his wife, Hazel Lamb, and the Durand Church, and also a drawing showing a girl, with bowed head, entering a darkened doorway in which the faint outlines of a man appear. The headlines of the article were, as follows:
“The Way of a Minister With a Housemaid” (in large letters).
“She Couldn‘t Resist His Eyes, So Durand (Illinois) Pastor is Now Out of a Pulpit and Is Suing Six Members of His Flock for Slander” (in bold type but smaller letters).
The article below these headlines and pictures was separated into nine paragraphs which are so numbered in this opinion, for convenience in reference thereto, to-wit:
(1) “A sprightly young Methodist minister was the Rev. John A. Logan Warren, and he had a roving eye and a disposition to be friendly. Especially, he liked the ladies, and the younger ones. The elder female members of his flock found him not quite so amiable. A good many said he high-hatted them. Sometimes when they met him on the street he would pass right on, looking past them as if absorbed in mighty problems, and even after services, when he stood at the door shaking hands, he was not quite the sort of pastor the elder sisters admire and find most comforting in the dullness of a small town like Durand.
“But in spite of these traits, unfortunate as they were in a village where much depends on the feelings of the elder sisters, the Rev. Mr. Warren was achieving a fair degree of success as pastor of the Durand Methodist Episcopal Church. Some who defended him said he was intellectually superior to his congregation and that his opponents merely couldn‘t understand him. Anyway, if he wasn‘t so sympathetic as he might have been, he was businesslike, and his collections were larger than collections had ever been before his arrival. In a little more than a year he had completed the building of a new $80,000 church to replace the one destroyed by fire two years earlier, and with all his high-hatting he had brought about a lively increase in attendance. Of excellent standing in the Rock River Conference,
(2) “Then suddenly the Rev. John Logan Warren found himself in trouble—the worst mess a minister of the gospel had got himself into since the fictional Elmer Gantry‘s affair with Lulu Bains down at Schoenheim. It was ‘girl trouble,’ very similar to Elmer‘s, and in this case considerably more disastrous. That was last January.
“Without further chronicle of the steps in his downfall at this point, it may be stated that the Rev. Mr. Warren no longer is a minister. After several months of gossip, charges, counter charges, slander suits and church hearings, he was unfrocked not long ago when a Rock River Conference trial board of 15 ministers heard his case at the Conference meeting at Oak Park, a suburb of Chicago: Found guilty of unbecoming conduct (which really was only a euphemism); he was not only deprived of ministerial standing, but also cast out of the Methodist Church.
“He is selling insurance in Rockford now, and Durand is discussing what will happen if he ever shows his face there again. It has been discussing the scandal or some of its ramifications ever since last winter, and the story seems destined to at least a neighborhood immortality. It may be that some of the very young children in Durand will outlive the tale of Pastor Warren‘s indiscretions, but that is doubtful.
(3) “So far as the townspeople can remember now, the morning of last January 14 was a very quiet morning, as most mornings are in Durand. That is, it was quiet up to a certain time. About 8 A. M., it seems, Mrs. Warren came downstairs a little more quietly than usual and went softly to the kitchen. There stood her husband with both arms around the housemaid. The maid saw her and broke away, but Warren didn‘t see her and followed the maid across the room. The first intimation he had of his wife‘s presence was when she screamed and let fly at him with a stove shaker. It caught him plump on the back of the head and laid open his scalp. Then she screamed again and the maid screamed and fled and there was so much commotion that the neighbors came running out to see what the excitement was about. Observing it was a family fight, they went about their own business without much important information as to details, but details were not lacking very long.
“Hazel Lamb, the housemaid, became frightened. She was only 19 years old and inexperienced in armours with pastors, or anybody else, for that matter. The neighbors say now that she always was a stay-at-home, who never even had a date like other girls, although she was possessed of a certain beauty. She had been graduated from the community high school the spring before and, last fall, finding other employment scarce in Durand, went to help with the housework at the parsonage. Her father, who was a janitor at the Meth-
“Hazel was almost in hysteria when she came running home from the parsonage that January morning, and after she had calmed down a bit she told her mother the whole story. Her mother told the girl‘s father and the father told the church board, and before long the whole town had it and was being shocked as Durand never had been shocked before.
(4) “The surprising of the pair by Mrs. Warren and the ensuing kitchen combat had been only the closing episode of an extended affair of intrigue, according to the girl‘s account. Months before that she had fallen victim to the dapper pastor‘s charms. She had been hypnotized, she said. She had tried to resist, but he had always compelled her to look him in the eye, and when she looked him in the eye she was powerless, because his eyes fascinated her. There had been a lot of meetings with him, she said. More than once, after a blazing denunciation of sin, he had hastened from the pulpit to keep a tryst with her in his own home, almost under the eyes of his wife. Sometimes he lingered behind when Mrs. Warren went downtown shopping or out to visit the neighbors. And once when Mrs. Warren was out of town the two had spent the nights together in the parsonage.
(5) “When Durand had heard this story it was frankly stumped. Never before had the Methodist Church had such a situation to deal with. Members and church officials debated heatedly about what should be done, but several weeks passed before anything definite was done. In the meantime church and Sunday school attendance fell off until it was hardly worth while to keep the church open. The Methodist congregation found in this circumstance a bitter pill of irony. Here they had just spent $80,000 to build one of the finest small-town churches in Northern Illinois, and then within six months after its dedication were ashamed to be seen in it because of the conduct of their pastor. Mrs. Sylvia Sodamon flatly refused to continue teaching her Sunday school class and several other teachers followed her example.
“Mrs. Warren, who at first was reported to be planning a divorce action, came to the pastor‘s support and did her best to save the situation by visiting the members, and Pastor Warren became unusually cordial with everybody, but still the scandal could not be talked down. Finally, the district superintendent, the Rev. C. K. Carpenter of Baileyville, came to town and the church board laid the matter before him. They urged the superintendent to remove Warren at once, and Hazel Lamb‘s father formally entered charges against the minister.
“The Rev. Mr. Carpenter told them the case was entirely too serious to permit any summary action on his part and that he would have to
(6) “Accordingly, he engaged a Rockford attorney and filed suits for slander against six members of his congregation. Named as defendants were Mrs Sylvia Sodamon, Wallace Best, Edgar Best, A. E. Swinson, Jud Van Sickle and Albert Fritz, the postmaster. He asked for $50,000 from each for malicious defamation of character.
“The suits were regarded locally as mere gestures to check town gossip, although nobody could figure out why he picked on those six people in particular.
“On the night of May 30 Warren was given opportunity to acquaint a church jury with what he found as to the alleged frame-up. That night will be long remembered in Durand as a mighty occasion. Before a board of ministers and church officials a secret hearing was held while an excited crowd filled the streets outside and tried to keep up with proceedings by peeking now and then through an opening door or under the stained glass windows. Warren told his story and Hazel Lamb told hers. Numerous witnesses, comprising neighbors and townspeople, also told what they knew of the case, and upon passing outside were immediately pounced upon by the crowd, eager for information.
“The hearing lasted until past midnight, and when it ended, announcement was made that Warren would depart on leave of absence but would continue to hold his standing as a minister until the charges could be passed upon by Rock River Conference at its October meeting. The Durand pulpit, meanwhile, would be filled by the Rev. Frank Sheets of the neighboring town of Oregon who had conducted Warren‘s prosecution.
(7) “The case came up on October 6 at the conference meeting in the Euclid Avenue Methodist Church at Oak Park. Fifteen brother Methodist ministers constituted the trial board with the Rev. Louis F. W. Lesemann of Chicago acting as judge. The Rev. Frank D. Sheets again conducted the prosecution, assisted by the Rev. Fred D. Stone, of Irving Park Church, Chicago, and Warren was defended by the Rev. John Thompson, of the First Methodist Church, Chicago, and the Rev. W. S. Fleming of Chicago.
“The trial was conducted behind closed doors and continued for more than two days. Warren‘s defenders tried to combat Hazel Lamb‘s story with contentions that she had been hired to tell it by Warren‘s political enemies and some declared the charges against the
“‘Mr. Erickson was instructing the girls how to wear their costumes,’ she said, ‘when the Rev. Warren came in. Some of the girls were so scantily clad that Mr. Warren ordered Mr. Erickson out and told the girls to put on more clothes. That was the start of the whole thing.’ Others gave a similar testimony.
“But Hazel Lamb‘s story set forth clearly that the start of the whole thing had taken place sometime before the tableau argument. She told it on the stand and although Warren was hopeful to the last, his case, according to the prosecutors, was doomed from the time she left the chair. Anyway, when the sealed verdict was delivered, it was found that 12 of the 15 ministers had voted ‘guilty‘. One was for acquittal and two had failed to vote. Only a majority vote was required and conviction automatically carried the penalty of dismissal from the ministry and the church.
(8) “The girl‘s testimony at the hearing followed closely the account she had given in a sworn statement previously placed in the hands of the conference authorities, and set forth the fact that Pastor Warren began his wooing the day before the new Durand Church was dedicated.
“‘It was on Saturday evening, September 13,’ she related, ‘that I was asked by Mrs. Warren to work at the parsonage on Monday. I accepted the offer and helped her most of that week. One evening just before the church dedication Mr. Warren drove me home from the parsonage. He put his arm across the back of the seat and then around my shoulders. He had been working very hard that day and seemed unusually tired. I sympathized with him as I would with a brother. Several days passed and I helped Mrs. Warren when she asked me. One day while I was helping Mr. Warren look for a book in his study he made advances and I was angry, and when he seemed sorry I forgave him.
“‘A few days later I was in the house alone with him. Mrs. Warren had gone downtown to settle for an overcoat. I was getting supper and Mr. Warren was in the dining room. He called to me. I started in but the light was off and I hesitated. He was near the door and forced me into the room. I was afraid to scream and was so frightened I could only moan. The next few minutes are not very clear. I remember asking him if he had no more mercy than a beast and after awhile I struggled away. I thought then that I hated him, but his eyes fascinated me. I would turn my head and close my eyes but he always made me look back into his eyes. It gave me the chills.
“‘This kept on until I came to believe I was in love with him.
“‘On the morning Mrs. Warren saw us I had gone down early and was taking some clothes from the rack when he came up from the basement and put his arms around me and told me how much he loved me. Then Mrs. Warren came in. She grabbed the stove shaker and hit him on the head. Then she tried to choke me and beat me with her fists. She had an awful spell. She would scream, call on the telephone and run from one end of the house to the other. When she asked me for an explanation I tried to deny it but couldn‘t lie very long. Then I told her everything.’
(9) “Although ousted from the pulpit and with prospects for a ‘come-back’ very slender, Warren is still fighting for his job, which, he points out, is the only job he knows. He has appealed from the verdict of the Rock River trial board and the case will be reviewed by the General Methodist Conference at Kansas City next spring.
“When I saw him at his home in Rockford recently, he reiterated his declaration that Hazel Lamb‘s story was a clumsy frame-up and that in time he would prove it. It is clear, he pointed out, that she didn‘t think of it herself but was telling merely what she was told to tell. Disappointed in his effort to shake the girl‘s version in two church trials, he now is gathering further evidence for use in the civil hearing where, instead of ministers, lawyers skilled in cross-examination will ask the questions. The odds against him seem pretty heavy with his former congregation 90 per cent against him but it can‘t be said that John A. Logan Warren isn‘t dying hard.” (Numbers of paragraphs and italics ours.)
Plaintiff, as a witness in his own behalf, denied that he had been guilty of any of the misconduct charged by Hazel Lamb or related in the article, and told of controversies with members of his congregation over politics and the construction of the new church. He further testified that Hazel Lamb‘s mother and father came to his church for four months after January 14, 1927; that they took communion at his hands during that time; and that Albert Swinson, to whom the girl‘s father was said to have disclosed the matter and who was related by marriage to the Lambs, continued during that time as superintendent of the Sunday school. He also stated that he was not allowed to bring in all the witnesses he wanted at the church trial; that the witnesses were not sworn at the church trials; and that
On behalf of defendant it was shown that the reporter, who wrote the article, made a trip to Durand and Rockford in August, 1927, after the first hearing of the matter before the church at Durand; that he then talked to the editor of the Durand paper and the editors of the two Rockford papers, as well as some of the people in Durand, but that he did not write any article at that time. This reporter made a second trip there, late in October, after the trial at the Methodist Conference in Chicago. At that time, he again talked to the editor of the Durand paper, to other people in Durand and also to the editors of the Rockford papers. On that trip he saw plaintiff himself, who said “this is a clumsy frame-up . . . no truth in the charge.” He said: “I preferred to take the girl‘s statement to his.” On that trip he collected the articles written by the Rockford and Chicago papers about the case. Articles from the Rockford Register-Gazette published during the trial before the conference were introduced in evidence. These articles were published on October 3, 4, 6, 7 and 8, 1927, and told of the progress of the trial, the contentions of both plaintiff and Hazel Lamb, rumors as to what was going on in the trial and reports concerning the feeling in Durand. Another article from the same Rockford paper, published October 10th, announcing the result of the trial and describing how it was received, was introduced. Articles from the Chicago Herald & Examiner published during the trial on October 7, 8 and 9 were also
Defendant produced a number of witnesses from Durand who testified that plaintiff‘s reputation there for morality and chastity, after the church trials, was bad. Defendant also had the testimony, by deposition, of Hazel Lamb that the entire story stated in her affidavit was true; that she wrote it all herself; and that plaintiff did have sexual relations with her. Defendant also had present at the trial the mother of Hazel Lamb and other witnesses from Durand who corroborated various parts of her story and told of other incidents in connection with the case. Among these were Mrs. Graham and Mrs. Swinson, who lived on each side of the Durand parsonage on January 14, 1927, and who related that there was sufficient commotion to attract attention and that they saw or heard Mrs. Warren crying and hollering and going from room to room. Mrs. Graham said she saw Mrs. Warren come out on the porch, saw plaintiff pull her back into the house, and saw Hazel Lamb go home afterwards (walking not running). Neither of these neighbors said she ran out “to see what the excitement was about,” but Mrs. Graham watched and listened from her home while Mrs. Swinson‘s attention was attracted while she was at her coal shed. Defendant also put in evidence the report of the conference showing the proceedings at the trial, the verdict sustaining the charges against plaintiff, the vote to expel him from the ministry and membership in the church, and the
Defendant‘s first contention is that the court should have sustained its demurrer to the evidence. It contends that the evidence shows that the occasion was one of great public interest; that the account was a fair statement of the whole matter in the belief that it was true; that the publication was without malice; that it was qualifiedly privileged; and that plaintiff, having failed to show malice, bad faith, or knowledge of defendant that it was false, failed to overcome the privilege. Plaintiff‘s theory is that he produced evidence tending to show that the charges against him were not true; that the jury believed his evidence and found them to be false; that the publication was not privileged because there was no duty to publish it and because plaintiff was not a public officer; that, if it was qualifiedly privileged, the privilege was lost because matters outside those privileged were included in the article and its headlines; and that in any case, there was a jury case because there was evidence of malice.
Since the truth is always a defense to libel, where only true facts are stated, no defense of privilege is necessary. Likewise, since there is no right to knowingly spread false facts about anyone, there can be no question of privilege to do that. A question of privilege properly arises, when the publication of a statement of true facts also contains a report of charges or statements made by others which may not be true. A somewhat similar question is presented when an article contains also inferences by way of comment, which may not be true, although drawn from true facts. [36 C. J. 1279-80, sec. 280; Newell, Libel & Slander, 519, sec. 480.] Ordinarily, no one has the right to broadcast incorrect inferences and conclusions about another‘s motives, intentions, and conduct (36 Cyc. 1281, sec. 283); and nothing is better settled than the proposition that no one is justified in stating false facts about another merely because some one else has done so. It is usually not in the public interest for a person to do either, concerning other persons, because there is no surer way of stirring up strife and because, in the language of the street, it is usually “nobody‘s business.” However, in a government “of the people” there are matters which, although they concern individuals, become “everybody‘s business.” This is where the doctrine of privilege steps in. If a person is charged with violating the law or the rights of others and the matter is brought into court, there is an absolute privilege from an action for libel or slander to state before the court, even falsely and maliciously, facts relevant to the proceedings. [17 R. C. L. 330-340, secs. 77-87; 36
The proceedings in such cases may be related by publication of the charge, the evidence and the result reached by the court, but this right is only qualifiedly privileged. These procedings are permitted to be published, “not because the controversies of one citizen with another are of public concern,” but because the administration of justice is, and “every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” [Newell, sec. 450.] Not only must the subject be one which the publisher is privileged to report, but his motive in doing so must be proper (free from malice) and his report must be fair and accurate. To keep within his privilege, the publisher need not publish the entire proceedings but whatever summary or abridgement he chooses to make, must be a fair statement, and when he undertakes to state additional facts, not brought out in the hearing but gleaned from his own investigation, he does so at his peril, if they are false, exactly the same as he would in connection with an unprivileged matter. [36 C. J. 1274, sec. 265; Newell on Slander & Libel, secs. 459-465.]
One also has the right (and this applies to a newspaper which is properly in the business not only of giving the public news but also of making them think about its significance) to comment upon true facts, when they are matters of public concern, by stating his inferences and conclusions about them. One may even be wrong in the inference he draws from true facts, which may be susceptible of more than one interpretation, and may even state such inferences critically and sarcastically and not be guilty of libelous defamation (36 C. J. 1283, sec. 287); but to stay within the field of this privilege, he must not state his conclusions as facts, unless they are true. [36 C. J. 1282, sec. 285.] The right to comment or criticize means the right to draw inferences from facts, subject to the qualification that the facts are true; that the inferences are reasonable; and that they are made in good faith and without malice. [36 C. J. 1279-1283, secs. 276-289.] If facts and comments are stated in the same article, it should clearly show what are facts and what are merely the writer‘s conclusions therefrom. [Newell on Slander & Libel, sec. 464.] One important field of comment and criticism is the discussion of the qualifications, character and ability of public men. There is a privilege to discuss these matters because these are, in a free country; matters of public concern, and it is the public interest to freely discuss them; that is to do so truthfully but not to lie about them. Too wide a latitude in attacks upon character would be detrimental to the public good because it would tend to keep worthy and honorable
There was a time when it was considered the best public policy to prevent any criticism of those in authority. In England in 1704 Lord Holt, in The Queen v. Tutchin, 14 How. St. Tr. 1095; said: “If persons should not be called to account for possessing the people with an ill opinion of the government, no government can subsist, for it is very necessary for all governments that the people should have a good opinion of it.” The change from this rule in England is shown by the following statement from Kelly v. Sherlock, L. R. 1, Q. B. 686: “Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, a judge with his jury, we are all of us the subject for public discussion.” The view of our own court has been thus stated: “It is only in despotisms that one must speak sub rosa, or in whispers with bated breath, around the corner or in the dark on a subject touching the common welfare. It is the brightest jewel of the crown of the law to seek and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion on the other.” [Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, l. c. 630, 132 S. W. 1143, 33 L. R. A. (N. S.) 216.] The difference between discussion and defamation is well stated, as follows: “It is not the law, that, because a man fills a station before the public eye, he becomes thereby a target. . . . Public station may ever be purified, never vilified.” [Shurtleff v. Stevens, 51 Vt. 501, 31 Am. Rep. 698.] But everyone who would assume responsibilities of leadership, either in politics, in religion, or in thought, puts in issue, to some extent at least, his character, his good faith, his ability, and his sincerity and these qualities become matters of importance and interest to all other citizens and any individual or newspaper has the right to fairly and reasonably discuss them. Nevertheless, this right is limited to the discussion of facts, true facts.
Although the question has not often come before the courts, there is good authority for holding that a trial before a church body or other voluntary association which has jurisdiction over the case is a quasi-judicial proceeding and that there may be a qualified privilege to report such procedings just as in the case proceedings before courts of justice. [Annotation 63 A. L. R. 649; 36. C. J. 1278, sec. 274; 17 R. C. L. 369, secs. 118-119; Shurtleff v. Stevens, 51 Vt. 501, 31 Am. Rep. 698; Farnsworth v. Storrs (Mass.), 5 Cush. 412; Kelly v. Tinling (1865), 1 L. R. Q. B. 699; Gattis v. Kilgo (N. C.), 52 S. E. 249, 38 S. E. 931; Barrows v. Bell (Mass.), 7 Gray, 301, 66 Am. Dec. 479; Kirkpatrick v. Eagle Lodge, 26 Kan. 384, 40 Am. Rep. 316; Bass v. Matthews (Wash.), 124 Pac. 384; Redgate v. Roush, 61 Kan. 480, 48 L. R. A. 236, 59 Pac. 1050; Lothrop v. Adams, 133 Mass. 471, 43 Am. Rep. 528; Cranfill v. Hayden (Tex.), 55 S. W. 805; Landis v. Campbell, 79 Mo. 433.]
In Shurtleff v. Stevens, supra, the court held that charges of unfitness against a minister, made before a church tribunal, were such as to “justify public comment in a denominational publication;” that “if the publication reached the general public, the privilege is not lost;” and that “the only limitation that attaches to the privilege is (as in the case of proceedings of courts), that the publication must not be made for the purpose of inflicting an injury but to promulgate facts which duty or interest require to be promulgated.” The court gave as reasons for its holding that:
“The general public not immediately related to these clergymen by the ties of church covenant or society relationship, are more or less directly within the range of that moral influence which they are charged to exert. Thus the general cause of public morality which underlies all good government, and which every good citizen, be he priest or layman, is bound to promote, is affected by the fidelity with which ministers of the gospel discharge the high trust of their appointment. In order to be successful public teachers of morality, they must be unspotted public exemplars of it. Hence, if it be suspected that a wolf in sheep‘s clothing has invaded their ranks, and sits at their council board, it is not only for the interest of all the members of the association to know the fact, but it is their imperative duty, to make inquiry and ascertain the fact.” (It would seem, therefore, that the public would have some interest in knowing the result.)
In Farnsworth v. Storrs, supra, the court held that reading before the congregation “the decision agreed on in church meeting and ordered to be promulgated” was qualifiedly privileged. The court said:
“Amongst these powers and privileges, established by long and immemorial usage, churches have authority to deal with their members, for immoral and scandalous conduct; and for that purpose, to hear complaints, to take evidence and to decide; and, upon conviction, to administer proper punishment by way of rebuke, censure, suspension or excommunication. To this jurisdiction, every member, by entering into the church covenant, submits, and is bound by his consent. . . . The proceedings of the church are quasi-judicial, and therefore those who complain, or give testimony, or act and vote, or pronounce the result, orally or in writing, acting in good faith, and within the scope of the authority conferred by this limited jurisdiction, and not falsely or colorably, making such proceedings a pretense for covering an intended scandal, are protected by law.” (Likewise, it would seem to follow that when such proceedings are had and the result publicly announced that there should be a qualified privilege to report them to the general public, if it is a matter of public concern.)
“A somewhat larger liberty may be claimed in this country (than in England) . . . both for the proceedings before all public bodies, and for the publication of those proceedings for the necessary information of the people. So many municipal, parochial and other public corporations, and so many large voluntary associations formed for almost every lawful purpose of benevolence, business or interest, are constantly holding meetings, in their nature public, and so usual is it that their proceedings are published for general use and information, that the law, to adapt itself to this necessary condition of society, must of necessity admit of their public proceedings, and a just and proper publication of them, as far as it can be done consistently with private rights.”
In Kelly v. Tinling, supra, the court held that a church dispute was a matter of such public interest that a newspaper had a qualified privilege to print letters written about it by a church warden and in criticism of his clergyman. The court said :
“The maintenance of decency and propriety in conducting public worship and of the sanctity of the sacred edifice and all connected with it, is surely a matter of the greatest public concern. The very use of the term ‘public worship’ shows this.”
This court in Landis v. Campbell, supra, citing many of these cases, applied the rule of qualified privilege to the making public of the decision of a church tribunal, saying:
“If a judicatory of a church has jurisdiction, by its laws, to try a member for an offense involving immorality, its decision is final, and not subject to be reviewed by the civil courts for alleged errors; that the civil courts will not examine into the question of errors in the proceeding, but give it the same force and effect as if it had been regular in every respect. . . . The acts of the session in suspending and expelling plaintiff afford a complete defense to this action, unless the charges against plaintiff were false, and the members of the session maliciously and falsely, or colorably made such proceedings a pretense for covering an intended scandal. (Citing cases.) . . . The reading the preamble and resolutions of suspension was a publication within the meaning of that term, as employed in relation to libels; but when a member has been excommunicated, it may be promulgated by the pastor by reading the resolution of expulsion in the presence of the congregation, according to the practice of the church, and that act will, of itself, furnish no foundation for an action against him.”
There is considerable difference between various kinds of privileged occasions. Some matters may be only communicated confidentially to others and not given to everyone. In such cases the
Ministers of the gospel are spiritual teachers and leaders of the people. Their influence and the influence of the church which sponsors them is great. It must be obvious, therefore, that proper qualifications and character for such a position are matters of public concern, especially in a country, such as ours, where there is complete religious freedom and the appeal of every church is solely the character of its teachings and the sincerity of its leaders. Facts relating to these things are news, which we think are matters of importance both to members of the church everywhere and to the general public as well, because “the general cause of public morality which underlies all good government . . . is affected thereby.”
This public interest certainly extends to charges affecting these matters publicly made and tried before a tribunal which has jurisdiction, even though the tribunal be that of a church. Upon both
But the fact that the occasion was one to which the rule of qualified privilege applies does not mean that defendant‘s demurrer should be sustained, because plaintiff is entitled to a verdict, if he can convince a jury either that defendant acted with express malice, even if the article states only what defendant was privileged to publish; or that the article goes beyond what defendant was privileged to publish and unfairly or inaccurately reports the charges and the trial; or states conclusions and inferences which go outside the field of fair comment; or makes statements upon its own authority purporting to be facts which are false. We think the above italicized portions of the article make it clear that there is a jury question as to whether the article does go outside of what was qualifiedly privileged. Especially the headlines and first four paragraphs are susceptible of such an interpretation by the jury. Consider the following matters: Headlines—The most prominent of these paraphrases the statement of Solomon that there are “things which are too wonderful for me” one of which is “the way of a man with a maid” (
To be considered even more than these isolated statements, however, is the effect of the whole. This court has held that “a defamatory article must be read in its entirety and interpreted from its four corners.” [Davis v. Missourian Pub. Assn., 323 Mo. 695, 19 S. W. (2d) 650; State ex rel. Zorn v. Cox, 318 Mo. 112, 298 S. W. 837.] It is easy to give an overdrawn, exaggerated and false impression of any situation by adding a few facts seeming to corroborate serious charges, and especially can this be done by stating as facts mere conclusions drawn from other facts. The tendency to do this was noted in Christie v. Robertson, 10 New South Wales, L. R. 157, as follows:
Did defendant, by adding facts from its own investigation or by stating its conclusions as facts, misdescribe the situation and present a false picture detrimental to plaintiff? This article would not be libelous defamation of plaintiff because it reported the charges Hazel Lamb made in her affidavit, the trial thereof and its result. Those things were true. She made the charges, executed the affidavit, and stood by its statements at the trial, where, whether true or not, they were accepted and believed over plaintiff‘s denial. The charges and the result of the trial thereon were made public, and because they were matters of public concern defendant had, as we have held, a qualified privilege to print an impartial account of them. If defendant has done no more than that plaintiff must prove express malice to recover, but defendant had no right to add thereto corroborating facts upon its own authority, unless they were true, or to unfairly picture the situation by unwarranted conclusions of its own stated as facts. [For examples see Rex v. Fisher, 2 Camp. 563; The King v. Fleet, 1 B. & Ald. 379; Lewis v. Walter, 4 B. & Ald. 605.] It should be noted that plaintiff‘s appeal, to the authority of the church, was still pending when this article was published. What would make this article libelous, even in the absence of proof of express malice (because justification and not privilege is the defense to facts added on defendant‘s own authority), would be that it does go beyond the statement of and is more than an account of the charges against plaintiff, his trial, and the result thereof, and states further facts, purporting to have been discovered by defendant‘s own independent investigation, which are not true and which tend to corroborate and support the charges, and conveys the impression that plaintiff was in fact guilty of the charges. In short, that this article, instead of being an impartial account of the charges, became
However, the verdict cannot stand because plaintiff‘s instructions did not properly advise the jury of the true issues of the case as they are above stated. It would seem that the impression the jury would be likely to get, from the instructions given them, was that they were trying de novo an appeal from plaintiff‘s church trial. Plaintiff‘s main instruction authorizing a verdict commenced by calling the jury‘s attention to various details stated in Hazel Lamb‘s affidavit (including forcing her into a darkened room, compelling her to look him in the eye, and putting his arms around her on January 14, 1927) and required them to find that he did not do these things. It then repeated them all and required them to find that they were false statements. It further required them to find that the article was likely to convey to the public the idea that plaintiff had seduced Hazel Lamb, was untrue to his wife, immoral, etc., and that it was libelous and damaged his reputation, and instructed them, if they so find, they should find for plaintiff provided they “do not find for defendant under Instruction 4,” which was defendant‘s instruction on its defense of qualified privilege. These instructions cannot be reconciled because plaintiff‘s Instruction 1 as well as all of the rest of plaintiff‘s instructions are drawn upon the theory that there was no privilege for the article at all. It is so argued in this court. Moreover, defendant‘s Instruction 4 did not alone fully explain the defense of privilege and defendant‘s Instruction J further explaining some of its features was refused. Plaintiff‘s Instruction 7 and defendant‘s Instruction 4 were also conflicting. Number 4 said defendant was not liable for publishing in good faith a fair account of the trial even though the charges (upon which plaintiff was tried) made in the article were not true; while No. 7 said good faith was not a defense but should only be considered in mitigation of damages, if the article was false in the particulars set out in plaintiff‘s main instruction, which, as we have seen, referred to even some of the statements of details made in these charges upon which plaintiff was tried. This tended to further mislead the jury as to the real questions before them for decision. Of course, if plaintiff did have sexual relations with Hazel Lamb he could not be libeled by anything defendant had published, tending to convey the impression that he was guilty of such immoral conduct, but showing only that her charges were untrue did not entitle him to recover. Defendant, having a qualified privilege to report the trial, plaintiff had to also show that defendant either with express malice published an account, of the actual charges made against him and the trial thereof, or that it had published an account thereof in an unfair manner, or that, even if it had reported the actual charges and trial fairly, it had published
The jury would undoubtedly be further misled and left, without proper guidance as to the issues by plaintiff‘s Instruction 5, telling them that if the article was libelous (came within the statutory definition which they were given in Instruction 2, but which did not make the requirements that it must be false and not privileged and did not refer to other instructions for these requirements) and in the particulars mentioned in the first instruction false (which as noted above did not distinguish between the charges made by Hazel Lamb and the facts stated by defendant upon its own authority) then the jury may infer that it was maliciously made.” This was too broad a statement, since defendant had a qualified privilege to publish a fair and true account of the charges made by Hazel Lamb, the trial thereof and its result, and plaintiff had the burden of proving express malice insofar as the article did so. [Merriam v. Star Chronicle Pub. Co., 335 Mo. 937, 74 S W (2d) 592; State ex rel. Zorn v. Cox, 318 Mo. 112, 298 S. W. 837; McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S. W. 193; Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S. W. 480; Cornelius v. Cornelius, 233 Mo. 1, 135 S. W. 65; Newell, secs. 296, 342.] This is because “the privilege is said to rebut the presumption of express malice implied (in other cases) from the defamatory subject matter.” [Lee v. Fuetterer Battery Co., 323 Mo. 1204, 23 S. W. (2d) 45.] What plaintiff had to show to prove express malice was that the publication, insofar as it was privileged, was not made in good faith to give a fair and impartial account of the charges, trial, and result which were matters of public concern and about which it was privileged to inform the public, but that it was done with a wrong motive. That is what malice is; the presence of an improper motive. [McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S. W. 193; Newell, sec. 273.] “Proof of the falsity of the facts and knowledge of such falsity is proof of actual malice;” (Cook v. Pulitzer Pub. Co., 241 Mo. 326, l. c. 362, 145 S. W. 480) because that does, unquestionably show a wrong motive. Therefore, if defendant has added material facts on its own authority, which it knew to be false, it would thereby go outside of its privilege and malice would be inferred. It is likewise a wrong motive, which would tend to show malice to state something as the truth without knowing whether it is true, recklessly, and without any reasonable attempt to find out about it or with complete disregard of other known facts. [37 C. J. 78, sec.
We think it was also prejudicial error to admit in evidence the result of plaintiffs suit against the members of his Durand congregation for conspiracy to defame him and to permit plaintiff to testify that people from Durand refused to speak to him after the publication of defendant‘s article. Who knows what the defendants in the other case said about plaintiff? While lawyers would know that a case between plaintiff and other parties involved different issues, different evidence, and different legal principles, laymen would naturally feel that matter was the same as in the case on trial between plaintiff and defendant and would be likely to come to the conclusion that the question being tried had already been decided. They would very likely think that they had the right to consider the judgment of this other court, in making their decision as to the truth of the charges of immorality, from the very fact that the court, after objection and without in any way limiting its effect, allowed it to be stated in evidence. We do not allow a jury in a condemnation case to have the result of the award of commissioners in the same proceedings, because they would likely be influenced by it. How much more likely is it that a jury would be influenced by the judgment of a court, which they were led to assume had tried out this matter in the county in which the incidents were alleged to have occurred? In view of statements made about this suit in defendant‘s article, it was proper to allow plaintiff, as he did, to testify that he had prosecuted that suit to final determination but it was not proper to bolster up plaintiff‘s case against defendant by stating the result some other court reached in a similar case against others. It is true that the court gave an instruction limiting the consideration of this evidence to whether the witness, who was a defendant in that case, “was prejudiced or biased against plaintiff” but that did not cure the error for the reason that
Likewise, it is proper to show that, after publication of a libel, people who formerly were friendly with the one libeled had changed their attitude toward him, where it is shown that they read it or were informed of it or even that it had been circulated in their neighborhood or community to such an extent that it would be a reasonable inference that they did know of it: and where it is shown or is a reasonable inference that the reading of the article caused the change in attitude. [Burrows v. Pulitzer Pub. Co. (Mo. App.), 255 S. W. 925.] That is not the situation here. There was no showing in the first place of any such circulation that it could be inferred that the people, whose conduct toward plaintiff was complained of, read defendant‘s article. [Kersting v. White. 107 Mo. App. 265. 80 S. W. 730; Crandall v. Greeves. 181 Mo. App. 235, 168 S. W. 264; Julian v. Kansas City Star. 209 Mo. 35, l. c. 139 (dissenting opinion), 107 S. W. 496] In the second place, it is not a reasonable inference that it would be the cause of their refusal to speak to plaintiff. The Post-Dispatch was not “telling them” anything in Durand, Illinois, in November, 1927, about the Warren case. It had been in the local paper, in the Rockford papers and in the Chicago papers, and more than that it had been a topic of village conversation ever since May. It would be a strained and far-fetched inference rather than a reasonable inference that the attitude of the people in the community toward Warren was changed when defendant‘s article was published, even if we could infer that it was read by them.
The judgment is reversed and the cause remanded. Ferguson and Sturgis, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.