McClung v. Pulitzer Pub. Co.

• Citation: 214 S.W. 193,279 Mo. 370
• Decision Date: 07 July 1919
• Docket Number: No. 18920.,18920.
• Parties: McCLUNG v. PULITZER PUB. CO.
• Court: United States State Supreme Court of Missouri

214 S.W. 193

279 Mo. 370

McCLUNG v. PULITZER PUB. CO.

No. 18920.

Supreme Court of Missouri, in Banc.

July 7, 1919.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Action by Dickerson C. McClung against the Pulitzer Publishing Company. Judgment for plaintiff, and defendant appeals. Reversed.

Judson, Green & Henry, of St. Louis, for appellant.

Ed E. Yates, of Kansas City, A. T. Dumm and W. C. Irwin, both of Jefferson City, and J. R. Baker, of Fulton, for respondent.

Lon O. Hocker, amicus curiæ.

McBAINE, Special Judge.

I. This is an action for libel, in which the plaintiff recovered judgment, and the defendant appealed to this court.

The suit was instituted in the circuit court of Cole county, where the plaintiff resided, and summons was served, upon the defendant in the city of St. Louis. At the return term the defendant appeared specially and filed a plea to the jurisdiction of the circuit court of Cole county. The plea to the jurisdiction was, in substance, that defendant was a Missouri corporation engaged in publishing a newspaper, called the St. Louis Post-Dispatch, in the city of St. Louis, where its principal office is located, and that at all times mentioned in plaintiff's petition it had no office or agent in Cole county. It was alleged that the service of summons was made upon defendant by the clerk of the circuit court of Cole county sending the petition and summons to the sheriff of the city of St. Louis, and that no other service was had, and that defendant had made no voluntary appearance in the circuit court of Cole county. The plea alleged that the paper containing the alleged libel was first published in the city of St. Louis.

The defendant then alleged in its plea to the jurisdiction, that if the statutes of Missouri are construed as warranting service in this manner and compelling defendant to appear in the circuit court of Cole county, when individual defendants in libel suits can only be sued in counties of their residence, then the statutes violate the Constitutions of Missouri and of the United States, in that they deny to defendant the equal protection of the laws.

The plea to the jurisdiction was overruled. The defendant then demurred to the petition, on the ground that the petition on its face showed that the court had no jurisdiction. The demurrer was overruled. A change of venue was then taken by defendant to the circuit court of Callaway county, where the case was tried by the court and a jury. A verdict was rendered in favor of plaintiff in the sum of $20,000, but before defendant's motion for a new trial was passed upon plaintiff remitted $13,000, and judgment was thereupon entered against defendant in the sum of $7,000.

As was stated, this is an action for libel. The petition is in two counts. In the first count the plaintiff alleged that he was the warden of the state penitentiary, and "that by the provisions of the laws of this state the plaintiff as such warden at all times hereinafter mentioned had and exercised the general control and supervision over the government, discipline, and police regulations of and appertaining to the said penitentiary." Hie alleged that the defendant newspaper published an article charging him with barbarous and archaic treatment of prisoners in the penitentiary.

In the second count of the petition the same allegation is made as to the plaintiff's conduct. It was then alleged that the defendant published another article defamatory of the plaintiff of the same general nature. It was alleged that the second article was a purported letter from a convict in the penitentiary. The letter is set forth in full in the petition. The convict, in the letter, complained of the treatment of prisoners in the penitentiary, and stated, in substance, that many prisoners were severely whipped with a leather whip on their bare backs. The letter also stated that prisoners were punished by compelling them to stand on their feet, flat on the stone floor, with their arms extended above their heads and their wrists chained by handcuffs to a ring fastened in the wall of a prison cell. It was stated that they stand in that position from 6:30 a. m. to 3 p. m., and again from 3:30 p. m. to 9 p. m.; that they received one slice of bread at 6 o'clock in the morning, and another one at 3 o'clock in the afternoon; that they were given water, but no other food; and that they were compelled to sleep at night without bedding or covering, in the cell, upon a board upon the cell floor. This treatment of prisoners was criticized as horrible, ignorant, brutal, and unjust, and it was said that many prisoners, because of such treatment, left the penitentiary "with murder in their hearts, determined to make society pay them what it has allowed them, through its representatives, unjustly to suffer." The convict called upon defendant paper to discuss the matter in the interest of society and stated:

"I promise you you will uncover brutality, ignorance, and vice such as would make the story of the Spanish inquisition read like a nursery rhyme."

The letter also stated that one Steve Willis was put in the rings and kept there a great length of time, until he made a confession to the officials where he had gotten some whisky found on his person. The convict stated that a confession "wrung from a man under torture" has no value in a court of law, and asked why such a confession should be given value in the penitentiary. It was alleged that this letter from the convict was published with comment by the defendant. The comment was that the letter was published as a statement of an intelligent man for what it was worth, and that the defendant stated:

"We ask Warden McClung and the members of the board of prison inspectors if these charges are true. We ask Governor Major if they are true. We ask a thorough investigation, to determine their truth or falsity."

The answer of defendant alleged that the penitentiary at Jefferson City was a public institution of the state, and that plaintiff was its warden; that defendant published a newspaper in the city of St. Louis, known as the St. Louis Post-Dispatch; and that it wrote the articles mentioned in the petition of the plaintiff as warden of the penitentiary. The defendant alleged that the penitentiary had in it 2,500 prisoners, and that the management, government, and discipline thereof were matters of the highest public interest and concern to the people of Missouri, and that defendant and every citizen of the state had the right to discuss, criticize, and comment upon the conduct and management of the penitentiary and its various officials. It was alleged that defendant had the right to criticize the plaintiff warden, if in its opinion he deserved criticism or censure.

The answer alleged that before the publication of the alleged libels complained of a prisoner named Steve Willis had been punished for refusing to tell the prison officials where he obtained a bottle of whisky which had been found in his possession; that Willis was placed in a cell in solitary confinement, handcuffed, and his hands chained to an iron ring, fastened to the wall, the ring being placed so that his hands and arms were raised several inches above his head; that he was compelled to stand in this posture for 20 consecutive days, for 14½ hours a day; that he was not allowed to leave his cell at any time, and only had one slice of bread at 6 o'clock in the morning and another at 3 o'clock in the afternoon, and had nothing else to eat during the 20 days, and that at night he was compelled to sleep upon a bare board, laid upon the concrete floor of the cell, without bedding or covering of any kind. It was alleged at the end of 20 days Willis was unable to bear up longer, and that he made a false confession to the prison officials that he obtained his whisky from another prisoner named Wright, and that thereupon the prison officials released Willis and seized Wright, and handcuffed and chained him, and that in order to obtain a release Wright confessed, and thereupon Wright was released. The answer also alleged that, prior to the publication of the articles complained of, plaintiff and his deputies had caused various inmates of the penitentiary to be stripped of their clothing and their hands tied, and whipped upon their bare backs with a heavy leather strap. It was alleged that these matters were commonly known and discussed in the public press at the time both articles in question were published.

It is alleged that these articles were published for the purpose of bringing about reform in the management and discipline of the penitentiary, and that the statements of fact in the articles were substantially true, and that all matters of inference, opinion, or comment in the articles were based upon the facts, and were made in good faith for the purpose of bringing about reform, and that they were not libelous of plaintiff.

The reply denied the new matter in the answer.

At the trial the evidence showed that Steve Willis was put in the rings for 20 or 21 days; that he was given a slice of bread at 6 o'clock in the morning, and was put in the rings at 6:30 in the morning, and taken down at 3 in the afternoon and given another slice of bread, and was put back in the rings and kept there until 9 o'clock at night, and then compelled to sleep on a board laid upon the concrete floor of the cell, without covering or bedding.

On cross-examination, plaintiff stated that such was the discipline inflicted upon Steve Willis. He stated that he thought Willis was let down at 3 o'clock, and not put back again. But he also said: "I do not know at what time he was put up and let down." He stated that he kept men in the rings 30 or 40 days. He stated that he regarded this form of punishment as proper. He said that Willis was punished for having a bottle of whisky on his person, and "that he was not strung up" to compel him to state where he had gotten his...