author: RQY, C.

text:
    DICKERSON C. McCLUNG v. STAR CHRONICLE PUBLISHING COMPANY, Appellant.
    Division Two,
    April 9, 1918.
    1. LIBEL: Newspaper Arieles: Bead Together. Where a suit tor libel is based on alleged charges contained in certain newspaper articles, it is proper to consider prior articles in the series to which reference is made in the ones complained of, in order to determine the meaning of the alleged libelous charges and to show malice.
    2. -: Public Officer: Charges and Criticism: Malice. The rule which permits the criticism of public officers is the same as that which governs the criticism of all matters of public interest, such as public institutions, places of entertainment, books and pictures. That rule distinguishes between charges of conduct admitted to be true and criticism thereof, and false charges of misconduct and criticism based on an assumption of their truth. In the latter case, the charges being false, the falsity of the charges carries the malice into the criticism and there is no burden on the plaintiff to show that the criticism was malicious; in the former case, the charges being true, the burden is on the plaintiff to show that the criticism is malicious, in that it is unjust, malevolent or exceeds the bounds of fair opinion.
    3. -:-: Charges Established: Criticism Characterizing Treatment of Convict as Torture. The charges in the newspaper publication were that the plaintiff, who was Warden of the State Penitentiary, had (1) whipped convicts, (2) had kept a particular convict suspended by his hands in rings, attached to the wall over his head, his feet resting on the floor, for fourteen hours a day for twenty days, and (3) that he had thus kept him in the rings in order to compel him to confess where he had obtained whiskey and heroin; and these charges were either admitted or established by testimony that was uncontradicted. Held, that, editorial comment that the punishment was “twelfth-century torture methods,” was not a charge, hut a justifiable criticism. When plaintiff kept the convict in the rings as he did to compel a confession he used “torture” within the dictionary meaning of the word.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    REVERSED.

      Virgil Ride, Richard A. Jones and N. T. Gave for appellant.
    The publication declared upon in the first count of plaintiff’s petition is an editorial published November 12, 1913, in defendant’s newspaper, “The New St. Louis Star.” (1) Under the evidence and law applicable thereto, plaintiff was not entitled to recover and the trial court erred in refusing to give to the jury the. instruction requested by defendant, directing verdict in its favor, (a) At the time of making the publication and thereafter, plaintiff was a public official, the warden in charge of the Missouri Penitentiary, a public institution of the State. It was as to the present conduct of that institution that this and other publications declared upon were addressed; the treatment and punishment of prisoners therein, a condition that required prompt remedy, action inducing such end by those responsible for the establishment and maintenance of such institution, the citizens of the State. All had a direct interest in such subject and a right to be informed concerning: it; the publications were within the class designated privileged. Finley v. Steele, 159 Mo. 305; Holmes v. Royal Fraternal Union, 22.2 Mo. 556 ,- Cook v. Publishing Company, 241 Mo. 326; Coleman v. Mac Lennan, 78 Kas. 711; Briggs v. Garrett, 111 Pa. St. 404; Schull v. Hopkins, 26 S. Dak. 21; Gandia v. Pettingill, 222 U. S. 452; O’Rourke v. Pub. Co., 89 Me. 310; Ashford v. Newspaper Co., 41 App. Cases (D. C.), 395. (b) A qualified privilege extends to all communications in which the party communicating has an interest or in reference to which he owes duty to those having a corresponding interest or duty, including cases where the duty is not a legal one, but of a moral or social character. Cases above, (c) Where the publication concerns that in which the publisher has an interest or owes a duty to others having a corresponding interest or duty, whether such be legal or of a moral or social character, a qualified privilege exists, in order to overcome which the burden is upon the one charging the publication to be a libel, to establish the falsity of the language of which he complains and that the publisher •was inspired by express malice toward him in causing the publication. 25 Cyc. 524; Finley v. Steele, 159 Mo. 229; Ashcroft v. Hammond, 197 N. T. 488; Cornelius y. Cornelius, 233 Mo. 30 '; Trimble v. Morrish, 15' Mich. 624, 16 L. R. A. (N. S.) 1017. That a newspaper has the right to make publication concerning and comment upon matter of public interest and that the doctrine of privilege under the law of lib.el permits an honest censorship by the newspaper press over the conduct of officials in the management and conduct of public affairs is well established. Branch v. Knapp & Co., 222 Mo. 603; Cowan v. Fair brother, 118 N. C. 418; Bearce v. Bass, 88 Me. 521. (d) The record fails to establish that the comment contained in the publication was inspired by malice, and the facts upon which based false. Fails to establish either of such contentions. Indeed, it is .apparent such publications were amply justified by existing conditions. They were neither false nor unduly severe and if the contrary could be in any manner inferred, this does not prove them to have been inspired by malice. 25 Cyc. 524; Schuíl v. Hopldns, 26 S. D'ak. 21; Laughlin v. Schnitzer, 106 S. W. 1908; Everest v. McKenny, L. R. A. 1917-D, 779. (e) Whether or not the publications were privileged was a question of law for the court. Holmes v. Royal Fraternal Union, 222. Mo. 556; Callahan v. Ingram, 122 Mo. 355. (2) Plaintiff’s failure to deny a charge made in the presence of the one affected thereby, is evidence of the truth of the charge. Much more so where plaintiff at the trial of his cause makes no denial of and concerning testimony attributing to him certain statements. The matter charged stands admitted. State ex rel. v. Flynn, 66 Mo. App. 373; Bank v. Levy, 106 La. 164.

      Ed.. E. Yates, A. T. Dumon, W. G. Irvnn and J. R. Baker for respondent.
    (1) That a newspaper may fairly criticise and com-ment upon the official conduct of a public officer is indisputable. Non constat, that it may pass the boundary line of fair, legitimate comment or criticism. “Written words which impute that one who holds office has been guilty of improper conduct in that office, or has been actuated by wicked, corrupt or selfish motives, or is incompetent for the position, are actionable.” Cook v. Pub. Co., 241 Mo. 348. This quotation is apropos to the language declared on in the first count of respondent’s petition. This language follows: “He can order abolished all inhuman practices in the penitentiary. He can remove the warden and the guards— everyone who was a party to the barbarity which has horrified the world. The same publicity will be given the Governor’s action in doing away with twelfth century torture methods that was given the exposure of it. It is up to the Governor, and if he honestly desires to give his State the best advertisement it ever had, he will at once do away with all methods of torture in the Missouri Penitentiary.” This language rises above mere comment or criticism. Its real sting lies in the statements' of fact that twelfth century torture methods, brutality and inhumanity were practiced by respondent in the prison. The cases cited by appellant are entirely inapplicable. There is a wide distinction between privileged communication and fair comment. Privilege ever goes down before falsity. Cook v. Pub. Co., 241 Mo. 362; Link v. Hamlin, 193 S. W. 238. Moreover, as observed in Cornelius v. Cornelius, 233 Mo. 31: “A lie is never privileged. It always has malice coiled up within it. When a man coins and utters a lie, or when he repeats it knowing it to be false, the law implies malice; he cannot shelter himself behind the doctrine of privileged communication. It is mistakes, not lies, that are protected under the doctrine of privilege.” This language fits the instant case on all three counts like a glove. The appellant newspaper knew the facts, yet steadfastly refused to print them. Each of the articles in question fails to state the facts with reference to the punishment. They indulge in fierce denunciation, leaving the reader to understand and believe what his imagination may suggest, to-wit, that “twelfth century torture methods,” inhumanity and brutality obtained as a regime of punishment in the Missouri Penitentiary. Nothing more iniquitous could have been suggested than this well understood English implies. The rack, the boot, the thumb-screw, trying by fire, all of the old-world torture chamber methods, are brought vividly to the understanding mind by such words. Price v. Whiteley, 50 Mo. 441; McGinnis v. Knapp, 109 Mo. 150; Pledger v. State, 77 Ga. 242; Hoare v. Silverstick, 12 Q. B. 624; Newell on Slander & Libel (2 Ed.), p. 568, see. 7. “Written or printed charges of cruelty or heartless and inhuman conduct are actionable per se, since they excite the hatred of the community.” 25 Cyc. 2591. Under the evidence there is- no question of privilege left in this case. When, as in each of the articles sued on the facts are not given, it is for the 'jury to say under all the evidence if the statements by way of denunciation are libelous. Cook v. Pulitzer, 241 Mo. 357. (2) The evidence of McClung, as well as of the Deputy Warden, who had charge of this matter of punishment, is directly and unequivocally to the effect that the convict was not punished in an effort to extort from] him a confession, but because he had contumaciously violated a prison regulation; a matter of vast importance, considered in the light of the baleful results that might flow therefrom. Respondent’s statements in this regard made, of course, an issuable fact properly solvable by the jury.
   RQY, C.

Plaintiff’s petition in three counts charges defendant with libel. There was a verdict for plaintiff on all counts, and the damages were assessed by the jury at $5000 actual and $5000 punitive damages on each count, making a total of $301,000. The trial court compelled a remittitur on each count of $4000 actual and‘$2500 punitive damages, and entered judgment on each count for $1000 actual and $2500i punitive damages, in all $10,500.

The defendant has appealed.

Plaintiff was Warden of our State Penitentiary for a term beginning March 24, 1913. The defendant is-a corporation, and the owner and publisher of “The New St. Louis Star,” a newspaper published in St. Louis and circulated throughout the State.

For many years, as long at least as the knowledge goes of those connected with the institution,' one form of punishment for violation of the rules of the penitentiary was to put the offenders “in the rings.” They were handcuffed, and their hands were then held just a little above their heads by being attached to rings which were fixed in the concrete walls of the cells in what is spoken of as “Punishment Hall.” They stood with faces to the wall. There were twenty or more cells in that hall furnished with those rings, fixed at different heights in order to fit different individuals. Whipping was another form of punishment. The evidence for plaintiff shows that there were about four whippings in the year just preceding the trial in this case. The evidence does not show for how many hours a. day, nor for how many days successively, any prisoner was kept in the rings • prior to the time when plaintiff became such warden. The total number of convicts is about 2500, of whom about - ten per cent have seen previous experience as such. About five per cent are incorrigible and hopeless, many of them addicted to whiskey and “dope.” The victims of the whiskey and drug habits are active in inducing others to indulge therein, the ^overcrowded conditions of the institution furnishing abundant opportunity for. such work. The whiskey and heroin tablets are introduced surreptitiously, and, when very scarce, sell in the prison at almost fabulous prices.

On October 20, 1913, one Steve Willis, a. convict, was found with a bottle of whiskey on his person, and heroin tablets were found in the place where he worked. He was put in .the rings. On November 10, 1913, an article was published in defendant’s paper, the important parts of which are as follows:

“Missouri’s Shame Published to the World.
“Three press associations, two of them with international alliances, sent out to the civilized world Friday the story of a helpless Missouri convict hanged up by his wrists in steel handcuffs for eighteen days. These same press associations, the day following, sent over their wires the statement that the Governor of Missouri and his Board of Prison Inspectors heartily approved of this hideous torture.
“Information that a convict was being subjected to this barbarous torture came to the New St. Louis Star last week from such an unquestioned source that it could not be ignored. A trained, trustworthy correspondent was sent to Jefferson City. He found the prisoner Steve Willis, hanging on the door of a room in the Penitentiary, his wrists held tightly in a jlair of steel handcuffs. His feet rested on the floor — the guard and prison physician were careful to call attention to this. It was shown by them, too, that the victim could move as much as two feet in either direction and he was fed bread and water twice a day, Also, in an • excess of kindness, the jailers permitted him to sleep ten hours of each twenty-four, without blanket or mattress upon the steel floor. At 7:30 each morning the guards fed him his mouthful of bread, washed down with a cup of water, before they strung him up for another fourteen hours of torture.
“And do you not consider this fourteenth century inhumanity a splendid advertisement for the imperial State you call your own? Will you not be proud hereafter to say you are a Missourian, a citizen of a State which sanctions through its Governor and his appointees, a. brutality that would incite to insurrection in Turkey?
“They burned men and women at the stake once. The pain they endured was frightful, but it did not last long. Convict Willis was tortured for twenty days. And after twenty days, broken in spirit and almost dead from exhaustion, Willis ‘confessed’ that he got the whiskey found in his possession from a negro trusty. So they let the beaten convict down from his cell door. Bnt the negro trnsty accused by Willis will take the latter’s place, strung up on the door of the cell, fourteen hours of the twenty-four, until he tells where he got the liquor outside the prison.”

And on the same day another article was published in that paper, of which the following is the'material part:

“Prisoner, Tortured 20 Days, Confesses Whiskey Smuggling.
“Negro Trusty is Implicated and is Put in Chains. Major Approves.
“Punishment is admitted Barbarous but is held Necessary.
“After twenty days of torture and starvation, by being strung up and fed on bread and water, Steve Willis, a St. Louis convict serving a term in the Penitentiary at Jefferson City, confessed Sunday the whiskey morphine found in the possession recently had been obtained from Major Wright, a negro serving seven years for robbery.
“Wright was put up in the rings Monday morning and will be strung up and starved until he tells where he got the whiskey and drug. Warden McClung stated that he will continue the treatment as- far as necessary to reveal the source of smuggling which had been, furnishing convicts with liquor and drugs in large quantities.
“Major favors ‘Stringing Up.’
“G-overnor Major told a reporter for the New St. Louis Star at the.Planters Hotel Monday that he was not opposed to stringing Penitentiary prisoners up by their wrists and that such a custom is to continue in the institution. ‘The prison officials have the right under the law and they can prescribe any punishment they see fit,’ he said. ‘Any punishment?’ asked the reporter. ‘Yes, any punishment within reason. I see by the newspaper that Willis has confessed and now the prisoner he accuses will he strung up in ,the same way until he confesses.’ ”

On November 12th thereafter it published this:

“How Major Can Advertise Missouri.
“Governor Major in an address to the St. Louis Advertising Men’s League, urged the members to advertise Missouri. A pity ’tis that the Governor did not practice his preaching. Missouri never has had such unfortunate advertising as that given it by the Governor and his Board of Prison Inspectors in the Steve Willis ease.
“The New St. Louis Star is heartily in favor of advertising the marvelous resources of St. Louis and Missouri. There is good advertising and bad advertising and the kind the Governor and his official family have brought upon the State is the worst kind imaginable. The Governor, however, can, in part at least, counteract the effect of the Willis case. He can order abolished all inhuman practices in the Penitentiary. He can remove the Warden and the guards — everyone who was a party to the barbarity which has horrified the world. The same publicity will be given the Governor’s action in doing away with twelfth-century torture methods that was given the exposure of it. It is up to the Governor, and if he honestly desires to give his State the best advertisement it ever had, he will at once do away with all methods of torture in the Missouri Penitentiary. It is all up to Governor Major. ’ ’

On the next day it published this:

“Warden McClung’s Crude Attempt to Evade Responsibility.
“In tardy deference to an aroused public indignation, Warden D. C. McClung announces that he will abolish torture in the Missouri Penitentiary, if The New St. Louis- Star will suggest a substitute therefor. This rather crude attempt to evade the responsibility for a barbarous practice will deceive no one, not even the Warden himself. It is an open confession of incompetency. There is. no more reason why a newspaper should direct reforms in a Penitentiary than there would be for a warden to operate a newspaper.
“If Warden McClung desires honestly to abolish cruelty, he will have no difficulty in learning the methods which have been in use for years in other prisons. The New' St. Louis Star suggests that he write to the Wardens of the state prisons in Illinois, Kentucky, Colorado and to the Superintendent of the United States prison at Atlanta. These men have not only done away with all punishments that even savor of cruelty, but have inaugurated honor systems which are not only demonstrating their superiority to the old methods, but are resulting in a real reform of those .sent under their care. Reform, after all, is the primary object to'be attained by our criminal law, and no convict can be reformed by brutality.”

And on the 25th of that month it published this:

“The Will of the People.
“Editor The New St. Louis Star: The American people know what is right and wrong in the conduct of their public officials. The people of this State know what is reasonable and unreasonable when it comes to whipping or torturing helpless convicts in the State Penitentiary who are at the mercy of the State. They know that Warden McClung went beyonds the bounds of reason in his punishment of Steve Willis. Whoever or whatever may prescribe the rules and regulations or ‘discipline’ of the State Penitentiary, no warden has a moral or constitutional right to inflict cruel and unusual punishment upon any prisoner or convict for infraction of said rules, no matter what the warden’s pretest may be for doing so. The people of this State will not stand for it and public sentiment is against it. This question will ‘not down’ with the people. Warden McClung has demonstrated that he is not a fit person for the position he now holds. If it be true that Warden McClung should have said ‘That he would keep Steve Willis strung up in that handcuffed position on a diet of bread and water until be died unless be confessed, ’ then in tbe name of humanity, civilization and religion, how is it possible for tbe Board of Prison Inspectors to continue such a warden and bis subordinates, in office? The Missouri State Penitentiary is bound to become a reformatory institution, because tbe people of this State will it so. No public official is ■above and beyond tbe reach of tbe will of tbe people. He dare not override their will. To cruelly punish convicts accomplishes no good whatever. In fact, tbe criminal convict comes out of tbe Penitentiary a worse man (an enemy of society) than when be first went in. This is history — it is tbe truth. G-eorge A. Ritter.”

Tbe three counts of tbe petition are based on these last three articles in tbe other named. The other two articles were read in evidence by plaintiff.

The answer admitted the publication of the articles as set out in the petition, and denied all other allegations.

The pleadings are sufficient to raise all the points to be discussed herein.

The evidence on both sides shows that Willis was in the rings twenty days. He was fed a slice of bread in the morning and put in the rings at 6:30. He was let down at 3 p. m. and given another slice of bread.' He was given all the water he wanted. He slept on a board on the floor of the cell. As to whether he was again put back in the rings at 3:30 p. m. and kept there until nine, the evidence is as follows:

Willis testified that after eating in the afternoon he wa.s again put in the rings, and remained there until bedtime. He had no means of knowing the exact time.

James Owines, Will Hunter and Emmet Phillips, three convicts, testified for defendant that they were in the rings from about 6:30 a. m. to about 9 p. m., with a half hour down in the afternoon to eat. They were up -ten, sixteen and eighteen days respectively.

W. F.. E]kinsi testified for defendant that he was night guard in Punishment Hall when Willis was there, and that he was still such guard. Pie testified that he went on duty at 4 p. m., and that when he found persons in the rings at that time it was his duty to keep them there until nine o ’clock. He further testified thus:

“Q. Did you ever see Steve Willis up there after four o’clock in the afternoon? A. Yes, sir, I have seen him up there.
“Q. He would stay up there until nine o’clock at these times, would he? A. Yes, sir; nine o’clock; that is taking down time.
“Q. What is thát? A. That is taking down time.
“Q. How many times did you ever see him up there? A. I don’t know how many times.
i£Q. Wasn’t he every day he was in the rings? A. No, sir, not every day; he was down a part of the time and part of the time he was up.
“Q. What is your best recollection about his being up or down most of the time during the evenings you were oh duty? A. I couldn’t say about that; I never paid no attention to that; there was men down mighty nigh every evening and théy was some up that I would go in there.”

He was not cross-examined, contradicted or impeached.

The depositions of Allan Rawls and John Agee, two convicts, were taken by defendant, but put in evidence by plaintiff.. They testified that they were in the rings from six a. m. until about 8:45' and 9 p. m., with short intermission in the 'afternoon to eat. One was up three days, and the other fourteen days. Said Witness Agee testified that it was in December, 1913, that he was in the rings as stated by him. The evidence of both those witnesses tended to show that punishment in the rings was not very severe.

The plaintiff testified as follows:

“He was strung up about nine hours or ten hours a day. I think about nine or ten hours. He was not strung up any longer than that, not that I know of. I think I would know if he had been. I think he was not strung up to exceed nine or ten hours a day. They put him up about 6:30 or 7 I think in the morning, he was up until, I think, 12 o’clock. I think they let him down at 12 o’clock, but possibly not every day, and then again at 3. He was not up any more to my knowledge. If he was strung up any longer than that it was against my knowledge or wishes, against any knowledge I had of the matter. I was paying fairly close attention to this Willis proposition, watching the case. I did not make inquiry from Mr. Gilvin as to how long he was stringing him up each day in that connection.”

On that subject George R. Gilvin testified:

“To the best of my knowledge he was up1 in the rings each day nine hours; that my orders to the officer in charge of that hall, Mr. Coughlin. Do not know that he was confined more than nine hours. Do not know that he was put in at six in the morning and held until three in the afternoon, let down for a while, put up again and kept until nine at night. ’ ’

He further testified:

“Q. Can you explain how it happens that so many of these men who have testified to being in the rings were there from six in the morning till three in the afternoon and let down and put up again at four o’clock and left up until nine o’clock at night? A. Nb, sir. My orders have been to take them down at three o’clock in the afternoon.
“Q. Putting them up from six a. m. to nine p. m., do you think that would be excessive punishment? A. It depends upon what the crime was and the man. ■
,“Q. Do you say you did that? A. That never has been my orders.
“Q- Do you think you would be justified in keeping men-? A. I have never done that and it has been my orders not to do that.
“Q. If in the Willis case he was punished from six o’clock in the morning to three in the afternoon, let down at three and put up again until nine at night, and he was off at night, with only an hour off at noon, that was not according to your orders?. A. That was not according to my orders.
“Q'. And yon never delivered an order for snch a punishment as that? A. No, sir, I never did.”

Coughlin was not put on the stand.

On the question as to whether Willis was kept in the rings to make him tell where he got the Whiskey the evidence is as follows:

The plaintiff testified:

“Q. What was he strung up there for, what was the purpose of that — to get him to confess where he got the whiskey? A. To punish him for- the crime he had committed.
“Q. Wasn’t he strung up there for the purpose of compelling him to confess where he obtained the whiskey? A. He was put in the rings because he had the whiskey on him, which was a violation of the rules of the institution.
“Q. That is not the question — A. I was very anxious to get any informlation I could get as to' where the whiskey came from.
“Q. Wasn’t it indicated to him that if he would confess he would be let down? A- It never was indicated to him by anybody, to my knowledge.
“Q. Do you want the jury to understand that you were not stringing him up there for the purpose of compelling a confession or seeking to gain a confession, is that right? A. He was strung up there for punishment.
“Q. Will you answer my question? A. I was anxious to get any information that I could get from him, but he was not being punished for that.
“Q. Isn’t it the fact that you kept him there for that very purpose and that he so understood it and you understood it, that if he would confess he would be taken down? A. I did not so understand it.
“Q. Is it not a fact that he did tell you where the whiskey had been obtained and that you refused to let him down? A. Oh, he told me this kind of a, deal; that he found it out under a board in an old ice bouse, in a place that 1 e bad no business to be. Everybody knew that was not true.
“Q. He told you that was where be got it? A. He didn’t tell me — be told the Deputy Warden that.
££Q'. Who is that? A Mr. Oilvin.
“Q. Deputy Oilvin ? A. Deputy Warden, yes, sir.
“Q. He told him that and still be was not leased? A. He told him that just after be was put up.
££Q. He told him that after he was up for sometime? A. Yes.
£<Q. Still be was not released? A. Yes, sir.
££Q. Finally he stated that be obtained it from a negro there? A. Yes, sir, a fellow by the name of Major Wright.
££Q. And when be told you that you let him down? A. Well, be possibly was not let down then, but somewhere near that time.
££Q. Near the time that be said that Major Wright bad given him the whiskey? A. Something near that time.
££Q. Dio you know anything about that one way or the other whether he was let down just after he said that Major Wright had given him the whiskey? A. Something near that time.
££Q. What do you mean by ‘something near?’ A. Well, it was within twenty-four hours ... I went down there and talked to him a number of times about various things. I asked him where he has gotten this dope and this whiskey and how much of this dope he had peddled. I was very anxious to find out the source from which he had gotten it. I think possibly he had gotten fifty pints in there. I testified in my deposition that the failure to give this information had nothing whatever to do with his being strung up and that it was not in an effort to compel him to give that information that he was strung up, but he was strung up because he violated the rules of the institution and not in an effort to compel him to state where he got the whiskey, that that did not have anything to do with him being strung up. It did not have anything to do with his punishment, hut of course we were anxious to find out the source from which the dope and whiskey came. There is no rule in the prison as to the length of time a man should he strung up for having whiskey -in his possession, that is left to the Deputy 'Warden.”

George R. Gilvin testified :

“He was put there for punishment for having whiskey on his person. It is a violation of the rules of the prison. Kept in there twenty-one days for having whiskey on his person. Cannot say that I ever punished anyone else as many as one-half of twenty-one days for having whiskey on his person, can’t say as to that, as to how many days. Could not give that approximately. Can’t say whether five days, ten days or two days; have no rules to determine that. Whenever I think he is sufficiently punished. I did not tell Willis I would let him down when he told where he got the whiskey. I never punished a man in my life to wring a confession from him, since I have been connected with that institution. Nothing except having this whiskey oh his person that caused the punishment. That is all. When he mentioned the name of the convict from whom he got the whiskey I let him down immediately afterward. Had not kept him up because he would not tell. Would not have done that.,
“Mr. Hay. Q. You would not have considered it proper to keep him up there to get a confession out of him?. A. I would not have done it.
“Q. You would not have considered it proper ? A. No, sir. I punished him for violating the rules of the prison.
“Q. And you consider that it would have been inhuman to have punished him for that? A. I do. . . “I punished Willis because he violated the rules of the prison. I did not punish him because he got the liquor. I did not ask him where he got the liquor. I talked to him two or three times, I think. He finally told me he had gotten this liquor from a convict by the name of Wright. We put Wright up in the rings that day, in a short time afterwards.
<£Q. In the face of that fact, that as soon as he told you about this man Wright, you let him down and Strung Wright up, still you say that you didn’t put him up to extort from him the statement as to where he got it. A. I positively say so. Yes, sir.”

Edwin S. Austin, editor of the £‘Capital News,” Asa Hudson and L. 0. Luetkewite, newspaper correspondents and not connected with defendant, each testified to a conversation with plaintiff in which the plaintiff stated that he would keep Willis in the rings until he told where he got the whiskey.

Plaintiff did not on the stand deny making those statements. The evidence on both sides tends to' show that whipping and putting in the rings with the hands, above the head have been almost if not entirely abandoned- in other penal institutions in the United ■ States. Captain Bradbury, a witness for plaintiff, testified:

<£My impression is that public sentiment has been pretty strong for some time and it has been driving or inducing or persuading the officials of the penal institutions to make more moderate all the modes of punishment.”

Henry Andrae, a former Warden of the Penitentiary, a witness- for plaintiff, testified: ££I think the rings are a more severe punishment than the lash. ’ ’

Other evidence for plaintiff tended to show that the rings did not seriously endanger the health of those undergoing such punishment, and that such punishment was not very severe.

Testimony for defendant tended to show that such punishment caused severe suffering and endangered the health.

Judge Starke, a former Warden, testified for plaintiff that he had -never tried to run the institution without the rings and lash, hut that he felt satisfied he could not do it.

There are other matters which will he stated in connection with the opinion.

Although this suit was instituted in Cole County with a change of venue to Callaway County, no question is raised on this appeal as to the right of plaintiff to sue defendant in Cole County.

I. This case falls under the general rule of law in regard to libel of public officers as such, and does not fall under any of the exceptions to that rule. Hence we will not herein discuss any of those exceptions.

Lord Herschell in Davis & Sons v. Shepstone, 11 App. Cas. l. c. 190, 55 L. J. P. C. 51, decided in 1886, said:

“There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the. distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. *
“In the present case the appellants, in the passages which were complained of as libellous,- charged the respondent, as now appears without foundation, with having been guilty of specific acts of misconduct, and then proceeded on the’ assumption that the charges were true, to comment upon his proceedings in language in the highest decree offensive and injurious; not only so, but they themselves vouched for' the statements by asserting that though some doubt had been thrown upon the truth of the story, the closest investigation would prove it to be correct. In their Lordships’ opinion there is no warrant for the doctrine that defamatory-matter thus published is regarded by the law as the subject of any privilege.”

Following the advice there given we have examined all the publications above mentioned, and we find therein the following specific charges of misconduct, as distinguished from the criticisms of that conduct:

1. He is charged with whipping convicts. The truth of that charge is admitted.

2. He is charged with keeping Willis in the rings for fourteen hours a day for twenty days.

3. He is Charged with thus keeping him in the rings in order to compel him to confess where he got the whiskey.

The plaintiff read in evidence the two first mentioned articles which were published by defendant on November 10th. His counsel in their brief say that those articles should he read along with the ones on which •the suit is based in order to determine the meaning and to show malice. We agree to that, especially as each of the various publications has apparent reference to the preceding ones. When counsel brought this suit they evidently had before them all those publications, and they were choosing their point of attack. Those publications of November 10th, considered both together, charged plaintiff in substance with keeping Willis in the rings fourteen hours a day for twenty days to compel a confession. Those charges are clear and direct, yet plaintiff chose not to challenge them, but to base the counts of his petition on the other later publications. The first count is based on the article which spoke of the Steve Willis case and said, ‘ ‘ The same publicity will be given to the Governor’s action in doing away with twelfth century torture methods which was given to the exposure of it.”

Respondent’s brief in reference to that language says:

“So beyond all question, and we speak by the record, the truth was not what this newspaper intended to convey to its readers, but a grossly exaggerated idea of the things that had been done under respondent’s authority in the Missouri Penitentiary. Not that Steve Willis had been punished by being put in the rings eight or nine hours a day, for reasons demanded by conditions that obtained in the Penitentiary, at the time, having to do with the orderly conduct of its inmates, and the safety of those within and without its walls.
“It wished the public to understand from the de-nunciatory language sued on, which fails to tell what forms of punishment were used in the .Missouri prison, and the kind applied to Willis, that 12th century torture methods had been applied to him; the torture to which he had been subjected was such as ‘to horrify the'entire world',’ to bring shame and disgrace upon the State, and that these torture methods were to be continued until ‘he died,’ absent a confession.”

Thus we see that counsel desire us to treat the words “twelfth century torture methods” as if they contained a charge of some kind of torture other than keeping the convict in the rings. We decline to do so, for the following reasons: It is conceded that all those articles must be read together to get their meaning. The publications of November 10th, after setting out the charges against plaintiff, spoke of such punishment as “fourteenth century inhumanity.” The very language here under discussion speaks of the twelfth century torture methods as having been “exposed.” That has plain reference to the previous publications. Webster’s principal definition of “torture” is, “Act or process of inflicting severe pain, especially as a punishment, in order to extort confession, or in revenge.” It is there said to have been last used in England in 1640. Thus we see that any kind of punishment which causes severe pain used to compel a confession is torture, and that torture has been disused for several centuries. The words “twelfth century torture methods ’ ’ plainly meant the act of plaintiff in keeping Willis in the rings to compel a confession and did not imply a charge of some other method of torture. We think it is proper to say that plaintiff’s act in ignoring the publications of November 10th, and basing the first count in the publication of November 12th, was a plain attempt to avoid the real issue and to raise a false one.

We have carefully set out all the evidence necessary to fully develope the merits of this case. The evidence on both sides shows that convicts were kept in the rings for fourteen hours a day for many days. Plaintiff justified such punishment by putting in evidence to show that it was not very severe. He read in evidence the deposition of the convict Agee, showing that Agee was in the lings fourteen hours a day for fourteen days in December ■after this controversy arose. That men were kept in the rings for fourteen hours a day for many days was deliberately put in evidence by both sides and should be accepted by this court as a fact. That Willis was kept in the rings as charged is proved by him, corroborated by the night guard in Punishment Hall, and denied by nobody. The best that plaintiff and the Deputy Warden could say .on that subject was that they did not know. Both plaintiff 'and the Deputy Warden testified that at times while Willis was in the rings they each asked him where he got the whiskey. The Deputy Warden téstifíed that immediately when he told from whom he got it, he was released from the rings. Three witnesses, newspaper men not connected with defendant, testified that plaintiff told them he would keep Willis in the rings until he told. Plaintiff was on the stand, but did not deny making such statements.

Plaintiff’s cross-examination on the question as to whether he kept Willis in the rings to compel a confession is a plain evasion and not a denial. It is true thé Deputy Warden said that he would not have kept him there for such a purpose. It must be kept in mind that this is a question as to the plaintiff’s purpose in so doing, and not as to what the Deputy Warden’s purpose was. The charge that plaintiff kept Willis in the rings for fourteen hours a day for twenty days to compel a confession is proved by evidence on both sides, and we feel fully justified in saying that there is no substantial evidence to the contrary. Under such circumstances it was tbe duty of tbe trial court to consider those charges as established facts, and it should have instructed the jury accordingly.

Evidently counsel’s reasons for not basing the petition on the publications of November 10th were because the truth of the charges therein made was not seriously controverted by plaintiff.

II. The charges thus made against the plaintiff in said publications being true as above shown, the question arises as to whether the defendant exceeded the bounds of proper criticism of plaintiff’s conduct.

The rule which permits the criticism of public officers is the same as that which governs the criticism of all matters of public interest, such as public institutions, places of entertainment, books, pictures and other matters of that kind.

In Dibdin v. Swan & Bostock, 1 Esp. 28, l. c. decided in 1793, is this:

“Lord Kenyon stated the law on this subject to be — That the editor of a public newspaper m!ay fairly and candidly comment on any place or species of public entertainment; but it must be done fairly and without malice or view to injure or prejudice the proprietor in the eyes of the public. That if so done, however severe the censure, the justice of it screens the editor from legal animadversion; but if it can be proved that the comment is unjust, is malevolent, or exceeding the bounds of fair opinion, that such is a libel, and therefore actionable. ’ ’

That is a clear and concise statement of the law as it was over a century ago and as it is today. See Odgers on Libel & Slander, pp. 224 and 225, where it is also stated that the burden of showing malice is on the plaintiff. It is there stated that malice may be inferred from the terms of the article itself.

The rule that the burden is on the plaintiff to show that the comment is malicious is laid down in Cook v. Pub. Co., 241 Mo. l. c. 357, and in Link v. Hamlin, 270 Mo. l. c. 337.

What is above said has reference to comment as distinguished from a charge. Of course if one makes a libelous false charge and then proceeds to comtment on the act thus charged, the falsity of the charge carries the malice into the criticism, and there is no burden on the plaintiff, in such a case, to show that the criticism was malicious. Folkard on Slander & Libel, p. 319, says that criticism cannot be fair where the charge is false.

The charges being "true, we hold that there is no evidence tending to show that the criticism was malicious. When plaintiff kept Willis in the rings as he did to compel a confession he used “torture”-within the dictionary meaning of that word, and the defendant in its criticism of plaintiff’s acts had the right to use that word and others of equal force. The press is clearly within its rights as long as it tells the truth and “calls a spade a spade.”

The judgment is reversed.

PER CURIAM: — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    ISAAC D. MOSLEY, Appellant, v. NEWTON W. EVANS.
    Division Two,
    April 26, 1918.
    1. EJECTMENT: Limitations: Finding of Trial Court. A finding by the trial court in an ejectment that the respondent has been in the actual adverse possession of the land for ten years, claiming to be the owner, if supported by substantial evidence, is binding on the appellate court.
    2. EES AD JUDICATA: Extent: Different Tracts in Ejectment. If the title of the five acres in suit was not determined in the former ejectment between the same parties, though defendant’s answer asserted ownership and prayed judgment, the judgment adjudging plaintiff to he the owner of an adjoining ten-acre tract and ignoring that part of the answer is not res adjudicata of defendant’s claim to the five acres. Even though the facts supporting defendant’s title to both tracts are the same, yet the title to the five acres was not a matter or issue that could have been brought forward in the former action in such a manner as to affect the decision as to the separate ten-acre tract.
    Appeal from Greene Circuit Court. — Hon. Guy D. Kirby, Judge.
    AFFIRMED.

      L. 0. Nieder and G. W. Goad for appellant.
    (1) The description in the deeds introduced in evidence by the defendant is so vague and indefinite that no title was passed thereby, neither were said deeds, or either of them sufficient to clothe the. defendant with col- or of title to the land in controversy. Varguey v. Richardson, 19 Mo. 96; B'ell v. Dawson, 32 Mo. 79; Holmes v. Strantman, 35 Mo. 293; Alexander v. Hicox, 34 Mo. 496; Dixon v. Finnegan, 182 Mo. Ill; Campbell v. Johnson, 44 Mo. 246. (2\ The judgment rendered in the former 3’t was res adjudicata in this case. In the former suit defendant’s answer prayed affirmative relief as to the e of the identical land involved in this suit, and judgment rendered on the issues there joined. Smith v. Keene, 231 Mo. 230; Johnson v. Realty Co., 167 Mo. 395; Yates v. Johnson, 87 M'.o. 217; Hotel Assn; v. Parker, 58 Mo. 327; Railroad v. Traube, 391 Mo. 355; Comstock v. Dain, 51 Mo. 569; Donnell v. Wright, 147 Mo; 639;. G-reenbaum v. Elliott, 60 Mo. 25 ; Caldwell v. White, 77 Mo. 471; Realty. Co. v. Norman, 259 Mo. 631; McClure v. Bank, 263 Mo. 136; Hiner v. Hiner, 243 Mo. 495; Tie & Timber Co. v. Pulliam, 237 Mo. 18; Emmert v. Ald-ridge, 231 Mo. 128; Spratt v. Early,1199 Mo. 500; Donnell v. Wright, 147 Mo. 647. (3) The judgment rendered in the former trial, fixing the boundaries between the parties to this action, was conclusive in this case. A judgment fixing boundaries, not appealed from, is conclusive as against the parties and their privies. 9 Corpus. Juris., p. 294, sec. 356-, Martin v. Pattillo, 126 Ga. 436. (4) There was no evidence fixing the boundary of the defendant’s land on the north. The cross "fence in evidence was not a cross fence. It had no beginning’ nor ending at any designated point, nor was there any evidence offered by the respondent that there was any agreed line established between Moseley and Raney when the fence was made across the field. Hilgedick v. Gruebbel, 246 Mo. 140.

      Curtis & Evans for respondent.
    (1) The finding of the trial court in favor of,the defendant upon the grounds of a parol partition or of adverse possession is final and will not be reviewed by this court. Gains v. Fender, 82 Mo. 509; Heynbrook v. Hormann, 256 Mo. 21; Woods v. Johnson, 246 Mo. 289. (2) Parol partition, followed by possession is valid, where the parties, as in this case, derive title from a common source. Sutton v. Porter, 119 Mo. 100. (3) Where adjoining landowners are ignorant of the true line and agree upon a permanent boundary line, and possession is taken acordingly, the agreement is binding on them and those claiming under them. Jacobs v. Mosely, 91 Mo. 457; Corrigan v. Early, 183 S. W. 574. (4) The declarations of a grantor now deceased, regarding his title may be admitted, not to show title, but to show possession was adverse. Mississippi County v. Vowells, 101 Mo. 225; Heynbrook v. Hormann, 256 Mo. 21; Davis v. Alexander, 183 S. W. 563. (5) In order to show adverse possession, defendant may show the possession of those under whom he claims. Adair v. Mette, 156 Mo. 496. (6) A fence, building or other improvement is not essential to constitute adverse possession. Leeper v. Baker, 68 Mo. 400. (7) If the line contended for by the defendant was pointed out by plaintiff’s grantor to the defendant or his grantor as the true line, it is only necessary that the defendant’s use or possession of said strip in dispute continue long enough, thereafter to indicate what was the understanding of the ad-; jacent owners. Dee v. Nachhar, 207 Mo. 680. (8) Since the defendant had been in possession of the land in question under an apparent claim, of ownership to the cross fence for a period covered by the Statutes of Limitations, the burden is on the plaintiff to show the defendant’s holding was subject to the future ascertainment of the true line between plaintiff and defendant, or in other words, the burden is on the plaintiff to show that adverse possession has not run. Lemmons v. McKinney, 162 Mo. 525; Corrigan v. Early, 183 S. W. 574; Mangold v. Phillips, 186 S. W. 988. (í9>) One judgment is not a bar to another when the subject-matter of the two actions is not the same. State ex rel. v. James, 82 Mo. 5091; State ex rel. v. Hollinshead, 83 ' Mo. App. 678; Seheurich v. Electric Co., 188 S. W. 114. (10) To be res adjudicata a judgment must be as to matters directly in issue, and not to points which were collaterally or incidentally considered, or that could only be argumentatively inferred from the judgment. Ridgley v. Stillwell, 27 Mo. 128; Dichey v. Hein, 48 Mo. App. 114; Hartwig v. Ins. Co., 167 Mo. App. 128.
   WILLIAMS, J.

This is an action to recover the possession of and to determine the title to the following described land in Wright County, Missouri, to-wit: “Commencing forty rods north of the southeast corner of the southeast quarter of the northeast quarter of Section Twenty-two, Township Thirty-one,- Range Thirteen, thence running north 4.84 chains, thence southwest to a point forty rods north of the southwest corner of said southeast quarter of the northeast quarter of said' Section Twenty-two, thence east to the place of beginning.” The following rough plat, drawn by the writer, will show the approximate location of the land in dispute:

The petition is in ejectment.

The answer contained: (1). An allegation that defendant is the owner of and in possession of the land described in the petition: (2.) An allegation that defendant is the owner of a certain tract of land in the southeast quarter of the northeast quarter of Section Twenty-two, Township Thirty-one, Range Thirteen, in Wright County, Missouri, described as follows: (then follows a description which covers all and a. little more than the land described in the petition). The answer then pleads the source of defendant’s title and asks the court to decree and adjudge the title of said land to be in the defendant.

The reply contained: (1) a general denial, and (2) a plea of res judicata.

The case was upon change of venue tried in the circuit court of G-reene County, resulting in a judgment de creeing the title to be in the defendant. Thereupon plaintiff duly appealed. '

Plaintiff’s evidence tends to establish the following facts:

William Raney, William Moseley and John S. Moseley are the common source of title. Plaintiff is the son of William Moseley, deceased.

April 30,1909, plaintiff, as grantee, received a deed executed by all the heirs of the three above named persons’ (the common source of title), which deed includes the land now in dispute.

Defendant’s evidence tends to show that after William Raney, William Moseley and John S. Moseley purchased this land, Raney and William Moseley paid bad? to John S. Moseley the one-third of the purchase price which he had furnished, and that thereafter John S. Moseley claimed no interest in the land; that afterwards William Raney and William Moseley made a parol partition of the land, Raney taking that portion of the land south of a certain cross fence located on the southeast quarter of the northeast quarter of Section 22, Township 31, etc., and William Moseley taking as his share that portion north of the cross fence. It is inferred from the evidence that the said cross fence was located approximately along the line a-b shown on the above plat and that the parties agreed that the fence was the dividing line. After that time and in 1874 Raney made a deed to one Hiram Rose containing the following description: “and a portion of the southeast quarter of the northeast quarter down to a certain cross fence in Section 22. Township-Range 13, in Wright County, Missouri.”

In 1876 Hiram Rose and wife executed a deed to Samuel Evans (the father of defendant) conveying “a fraction of the southeast quarter of the northeast quarter of Section 22, Township 31, Range 13, containing ten acres more or less” and other land. Defendant received conveyances from the different heirs of Samuel Evans. One of these deeds, dated March 10, 1899, described the land as a “part of the southeast quarter of the northeast quarter, Section 22, .on the south side of said 40 down to the cross' fence, all in Township 31, Range 13.”

The last deed from any of the heirs of Samuel Evans to defendant, dated January 30, 1900, described the land in practically the same way.

After the parol partition between the original purchasers, which was sometime prior to 1874, Raney went into the exclusive possession of all the land south of said fence, and William Moseley went into the exclusive possession of all land north of the fence, and from said time down to the present the defendant and those under whom he claims have been in the possession of said land south of said fence, cultivating the same continuously and claiming to own the same.

In rebuttal plaintiff offered testimony tending to show that the cross fence above mentioned was not agreed upon as a permanent dividing line between the two owners, but was merely a temporary designation mjade for the purpose of keeping stock within proper bounds and subject to be changed when the true line should be after-wards surveyed. It does not appear that any change in the dividing line was ever made.

Plaintiff also offered in evidence the pleadings and judgment of the circuit court of Wright County, Missouri, wherein the present plaintiff was plaintiff and the present defendant was defendant. In that suit the plaintiff’s petition is in ejectment to recover the possession of a ten-acre strip lying adjoining" and immediately south of the land involved in the case at bar. Defendant in his answer in that case claimed to be the owner of the land described in plaintiff’s petition in that suit, and also alleged that he was the owner of the land north of said strip and up “to a certain cross fence” on said forty (which included the land now in controversy), and asked that the court decree and determine the title to all the land described in his answer. Trial was had and the judgment here introduced in evidence shows that the court found that the title to the ten-acre strip described in plaintiff’s said petition was in the defendant, but the decree made no reference to the land lying between said strip and the cross fence (the land involved in the present action).

I. The circuit court found that defendant had been “in the actual, open, continuous, notorious, adverse, peaceable and uninterrupted possession of the above de-scr^ec^ lands, claiming to be the owner thereof, for more than ten years next before the filing of this cguse of action, and that the plaintiff nor those through whom he claims has never been in the possession of said lands during any of said time.” The evidence was sufficient we think to support the above finding and since this is a suit at law the trial court’s finding is binding here.

We do not understand that the appellant seriously controvei'ts the above conclusion, because upon the oral argument here appellant’s counsel announced that appellant’s point, mainly relied upon for a. reversal, was that of res judicata, which point we discuss below.

II. Should the above mentioned former judgment of the circuit court of Wright County, Missouri, in an action between the same parties, operate as a bar to the rendition of the present judgment in respondent’s favor? We think not.

While it is true that in the former suit, as shown by the foregoing statement of facts, the answer did ask the court to determine the title to a strip of land, which strip of land included the land here involved, yet when the judgment was rendered in the cause it merely determined the title to the ten-acre strip described in plaintiff’s petition therein. The title to that ten acres (not here involved) was adjudged to be in the defendant, respondent here. Whether by inadvertence or not we do not know, yet it clearly appears that the judgment fails in any manner to determine the title to the five acres here involved. The judgment not only fails to specifically mention the land here involved, but also fails to use any langage, even in general terms, which might be construed as a determination of the title thereof.

We are aware of the general rule that when a given subject-matter is finally adjudged, such judgment becomes res judicata as to all matters or issues, bearing on the adjudged subject-matter, which' were or might have been brought forward in support of or against the decision which was finally rendered. But it does not occur to us that this rule can avail appellant here. The subject-matter of the present suit, to-wit, the question of the title to the five-acre strip, was not determined in that action. Neither was it such a matter or issue as was or could have been brought forward as in any manner affecting the decision as to the ten-acre tract. It is no doubt true that many of the facts supporting defendant’s title to the two tracts are the same. In so far as that is true the respondent, in whose favor the former judgment determined the title to the ten-acre tract, might, under the holdings of the various decisions on the question, find encouragement for the view that he be allowed to claim that as to all such issues of fact the appellant would now be barred from again litigating the same, but we are unable to see wherein the appellant himself can invoke the doctrine.

We have not been cited to an authority nor have we been able to find one which deals with the exact situation here involved, but we are of the- opinion that the well-settled principles of the doctrine of res judicata when applied to the facts here involved can justify no other conclusion. [Clemens v. Murphy, 40 Mo. 121; Chouteau v. Gibson, 76 Mo. 38, l. c. 47-49.]

The judgment is affirmed.

All concur.