Edwards v. George Knapp & Co.

• Citation: 97 Mo. 432,10 S.W. 54
• Parties: EDWARDS et al. v. GEORGE KNAPP & CO.
• Decision Date: 20 December 1888
• Court: Missouri Supreme Court

10 S.W. 54

97 Mo. 432

EDWARDS et al. v. GEORGE KNAPP & CO.

Supreme Court of Missouri.

December 20, 1888.

1. LIBEL AND SLANDER — TRUTH AS JUSTIFICATION — REASONABLE DOUBT.

In a civil action for libel, where defendant pleads truth in justification of a charge imputing a crime to plaintiff, it is error to instruct that defendant must prove the charge "beyond a reasonable doubt;" a preponderance of the evidence being sufficient. Overruling Polston v. See, 54 Mo. 291.

2. SAME — PLEADING.

A plea in justification, alleging that plaintiff had had sexual intercourse with her brother, is sufficient to cover a charge that she had had such intercourse, and was pregnant thereby.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

[10 S.W. 55]

Action for libel by Mary B. Edwards and Cyrus Edwards, her husband, against Publishers George Knapp & Co., a corporation. Judgment for plaintiffs, and defendants appeal.

James J. Lindley and Edward P. Lindley, for appellants. Crosby, Rusk & Craig, for respondents.

NORTON, C. J.

This is an action for libel, in which plaintiffs obtained judgment for $5,000, from which defendant has appealed; and as one of the points relied upon to sustain the appeal arises on the pleadings, it is necessary to insert so much of them as bears upon the point raised and hereinafter adverted to. Plaintiffs charge in their petition that on the 18th of January, 1885, defendant maliciously published of and concerning the female plaintiff the false and defamatory words and libel as follows:

"CAUSE OF A DOUBLE MURDER. Special to the Republican. ST. JOSEPH, Mo., January 17. The cause that led to the horrible murder of Austie and Adella McLaughlin, aged seven and nine years, respectively, near Flag Springs, Andrew county, in August last, for which crime Oliver H. Bateman was hanged at Savannah, on November 21st last, is now unearthed. The deed was the most damnable in the criminal history of the state, and the motive that led to its commission has been a matter of no little conjecture. It was predicted that Bateman would weaken, and make a confession before the date of his execution, but he failed to do so. On the other hand, he claimed to have experienced religion, and denied that there were any facts that he had kept from the public. The McLaughlin and Bateman families lived neighbors, and one Sunday in August the little girls who were murdered went to the Bateman residence to spend the afternoon. There was no one at home but Oliver Bateman and his sister, a young girl in her teens. The children remained a couple of hours, and then started home, but never reached their destination. On the following day their little bodies were found in a corn-field, lifeless. The eldest, Adella, had been outraged, and her throat cut, while a pistol ball had penetrated the brain of the younger. Oliver H. Bateman was arrested a few days later, and made a confession of his guilt, which led to his execution on the gallows. To-day your correspondent met two prominent farmers of Andrew county, who reside in the neighborhood of the McLaughlin and Bateman families. From them it was ascertained that the sister of the murderer is now in a delicate condition, and there is no doubt that she was ruined by her brother, Oliver A. Bateman, who was a couple of years her senior. Their theory, and that of the entire neighborhood, is that when the McLaughlin children visited the home of the Batemans on that Sunday afternoon in August last, they saw something that led young Bateman to fear exposure, and that he followed the children, when they departed for home, and brutally murdered them in the field where their bodies were found. The Gazette of this city will to-morrow publish an article giving the facts substantially as related above, and the motive that actuated Oliver H. Bateman to commit the deed will no longer remain a mystery."

Defendant, in its answer, admits the publication, and sets up in justification: "That it is true that on the 15th day of June, 1884, in an outhouse on the farm of Thomas Bateman, the father of the female plaintiff and of Oliver Bateman, the said Oliver Bateman did have carnal, sexual intercourse with said female plaintiff. And further, in justification, says that on the 21st day of August, 1884, two little girls, Austie and Adella McLaughlin, went to the house of Thomas Bateman, and found no one at home but the female plaintiff and her brother, Oliver Bateman, and said little girls saw said Oliver fondling and caressing said plaintiff, manifesting a lustful passion for her, unbecoming, improper, and wrong by a brother towards a sister."

The court by instructions numbered 4 and 5 told the jury that defendant's plea justifying the charge made, that the female plaintiff had been ruined by her brother Oliver, amounts to an allegation that she had committed the crime of incest, and it devolved upon defendant to establish and prove the charge beyond a reasonable doubt. This action of the court is assigned for error. The said instructions were warranted by the ruling made in the case of Polston v. See, 54 Mo. 291; but inasmuch as that ruling was made by a divided court, and is claimed to be not in harmony with the ruling in the case of Marshall v. Insurance Co., 43 Mo. 586, we are asked to reconsider it, and lay down a rule in harmony with that asserted in 43 Mo., supra, and in harmony with the rule which it is claimed generally prevails in the courts of this country. And inasmuch as no authority is cited in the case of Polston v. See, supra, in support of the rule there laid down, and none in the brief of counsel, except section 426, 2 Greenl. Ev., and inasmuch as in the dissenting opinion by SHERWOOD, J., the authorities therein cited bear directly upon the question involved, and favor the conclusion therein announced, it is deemed not to be inappropriate to review the rule established in the majority opinion, and establish a rule according to principle and weight of authority. In the case of Marshall v. Insurance Co., supra, when suit was brought to recover insurance on a steam-boat destroyed by fire, the defense set up was that the owners of the boat had willfully burned it, thereby imputing to them the crime of arson. It was held broadly that "in all civil cases it is the duty of the jury to decide in favor of the party on whose side the evidence preponderates, and according to the reasonable probability of truth;" and it was further held that an instruction in that case to the above effect was proper, though the...