Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.
ALLEN, J.
This is an action for libel. The trial below resulted in a verdict and judgment for plaintiff, and the defendant appealed. The cause was here argued and submitted at a prior term, and we handed down an opinion, written by NORTONI, J., affirming the judgment, but thereafter a motion for a rehearing filed by appellant was sustained. It has since been twice reargued, this being occasioned by changes in the personnel of this court coupled with the fact that one member thereof is not sitting.
The petition is in three counts, declaring upon three separate articles published by the defendant in its newspaper, the St. Louis Post-Dispatch, on April 28, April 29, and June 14, 1906, respectively. The article sued upon in the first count is as follows:
"Lawyer, Sued for Divorce, Makes Fight — Ex-Judge Jones of Edina Says Wife's Residence is Not St. Louis — Affidavits are Taken — They Concern `One Katie Bryant, a Yellow Woman,' Once a Servant.
"Katie Bryant, `a yellow woman,' promises to figure somewhat conspicuously in the divorce case of Mrs. Mary Elizabeth Jones against Ex-Judge Orville Davis Jones, of Edina, Mo. (meaning thereby this plaintiff), according to many depositions filed in Judge Ryan's court. They are depositions taken in behalf of Mr. Jones in Edina with a view to offsetting a dozen or so of affidavits in the possession of Mrs. Jones.
"One Katie Bryant, `a yellow woman,' so alluded to by Mr. Jones in questioning one of the deponents, was formerly a servant in the household of Mr. and Mrs. Jones at Edina. Mr. Jones had the depositions taken when it came to his knowledge that Mrs. Jones and Katie Bryant had made a number of affidavits, although he can only conjecture what the affidavits contain, and in spite of the fact that there is no allusion to Katie in Mrs. Jones' petition, and it is not possible in divorce cases to prove anything not pleaded in the petition.
"Mr. Jones seems to regard `forewarned is forearmed' as a good maxim, and he has had many depositions taken with a view to discredit anything that Katie may be permitted to tell the court about him.
"Mary Alexander, sister-in-law of Katie, is one of the deponents. After she had testified that Katie had told her things about the conduct of Mr. Jones, she was asked if Katie had not made a contradictory statement to her.
"`She told me,' the witness said, `that she was sorry she told what she did, as she could have made a lot of money off of Mr. Jones.'
"The witness said that Katie told her that Mr. Jones and J. E. Hildreth came to see her about the story she was supposed to have told and she denied it to them. Mr. Jones questioned some of the witnesses himself. He asked one of them: `Are you acquainted with one Katie Bryant, yellow woman, who has lived in a house for four months down in the west part of town by herself?'
"Mr. Hildreth testified to the visit of Mr. Jones and himself to the home of Katie. He said that when they appeared at the door she `fled mad.' He continued: `Mr. Jones rather stormed out, "Is it not a fact that you are getting letters and money from Elizabeth for a witness against me?" or something like that.'
"She said that she had received only one letter. After a while, according to Mr. Hildreth, `they both calmed down and got to talking more business-like, and Mr. Jones says, `Now, Katie, I want to know if there is any truth in that story that is being circulated around;' and she said, `No.' Mr. Jones said, `Katie, I always treated you with respect;' and she said, `Yes, and I always did the same with you;' and Mr. Jones said, `Yes.'
"Mr. Jones, questioning the witness, asked: `Did Mr. Jones curse and swear there in your presence and in hers?' `No, sir; you didn't swear. You stormed out though.' `What do you mean by "stormed out, though"?' `You fled mad. Got in a passion.'
"Dr. H. H. St. John, who appears to be a notary public, admitted that it was through him that Mr. Jones had learned of the affidavits signed by Katie and Mrs. Jones. He said that he had `accidentally' told Mr. Jones about it, after promising that he would not tell anybody.
"He said that Mrs. Jones and Katie came to him, and Mrs. Jones wanted to know whether he could acknowledge their signatures to affidavits without knowing their contents. Mrs. Jones gave him to understand that she was assisting Katie in getting a divorce from her husband. He acknowledged the signatures to about a dozen affidavits without reading them.
"After Mrs. Jones left her husband and came to St. Louis, he learned that Katie had obtained a divorce before the affidavits were made and accidentally spoke to Mr. Jones about the affidavits. That started the deposition mill."
The article sued upon in the second count is as follows:,
"Says Wife Does Not Live in City — Ex-Judge Jones, Sued for Divorce, Denies Jurisdiction of Court — Has Many Depositions — They Refer to `One Katie Bryant, a Yellow Woman,' Formerly a Servant.
"Depositions filed in Judge Ryan's court in the divorce case of Mrs. Mary Elizabeth Jones of 5652 Cates avenue against Ex-Judge Orville Davis Jones (meaning thereby this plaintiff) indicate that Judge Jones is not going to omit anything that will tend to discredit any testimony that may be given in Mrs. Jones' behalf by `one Katie Bryant, a yellow woman,' who was formerly a servant in the Jones home at Edina.
"There are many depositions, all taken in Edina, and they are directed mainly to showing that Katie Bryant has denied a story circulated in Edina, presumed to have emanated from her, and that she is not worthy of belief anyhow.
"There is nothing in the petition of Mrs. Jones about Katie, and it is hard to get anything into a divorce case except what is pleaded in the petition, but it has come to the knowledge of Mr. Jones that his wife has a lot of affidavits, presumed to mention Katie.
"Mary Alexander, a sister-in-law of Katie, is one of the deponents.
"`She told me,' the witness said, `that she was sorry she told what she did, as she could have made a lot of money off of Mr. Jones.'
"An Interview with Katie.
"The witness said that Katie told her that Mr. Jones and J. E. Hildreth came to see her about the story she was supposed to have told and she denied it to them. Mr. Jones questioned some of the witnesses himself. He asked one of them: `Are you acquainted with one Katie Bryant, yellow woman, who has lived in a house for four months down in the west part of town by herself?' Mr. Hildreth testified to the visit of Mr. Jones and himself to the home of Katie.
"They both got mad at first, but after a while, according to Mr. Hildreth, `they both calmed down, and Mr. Jones says, "Now, Katie, I want to know if there is any truth in that story that is being circulated around;" and she said, "No." Mr. Jones said, "Katie, I always treated you with respect;" and she said, "Yes, and I always did the same with you;" and Mr. Jones said, "Yes."'"
The article sued upon in the third count is as follows:
"Says Husband Kissed Her by Mistake — Mrs. Mary Jones Tells of Trap Set for Husband.
"Because Judge Orville Davis Jones, of Edina, Mo. (meaning thereby the plaintiff), kissed his wife, Mrs. Mary Elizabeth Jones, in the dining room of their home, in the dark, believing her to be Katie Bryant, their servant girl, described as a yellow woman, Mrs. Jones is now suing him for divorce in Judge Ryan's division of the circuit court.
"Mrs. Jones herself testified Thursday, and told the full story of how she had set the trap which resulted, she said, in Judge Jones kissing her under the belief that he was kissing Katie Bryant. As she recited the story, Judge Jones sat facing her in the courtroom and manifested much agitation. At one moment in her testimony he gave an indignant exclamation.
"Mrs. Jones said that, owing to certain things told her by Katie Bryant, she substituted herself for Katie in keeping a tryst with Judge Jones in their dining room. It was a dark
moonless night, she testified, and she caused the blinds to be drawn down so that the room was in utter darkness.
"Judge Jones' room adjoined the dining room, she said, and, after she had waited for a while in the latter apartment, Judge Jones entered stealthily. He called out, `May I come, Katie?'
"Mrs. Jones said that she made no reply, but moved, and her husband then came to her and put his arms around her and kissed her. She did not make herself known to him."
Beginning at this point, we adopt the following from the statement of facts and opinion of NORTONI, J., originally filed herein, viz.:
"The answer to each count admits the publication, but denies the article involved was a libel on plaintiff, and further avers that it was a fair and reasonably accurate report of the testimony in a divorce case then on trial between plaintiff and his wife, and is therefore privileged. By way of mitigation, it is averred that it published conspicuously the report of the decision favorable to plaintiff, which, it is said, discredited the testimony given against him in the divorce case, and theretofore reported in the articles complained of. The answer does not plead the truth of any of the articles published except the comments, which it is averred are true in point of fact. The reply is a general denial to the new matter in the answer.
"Plaintiff and his wife resided at Edina, Mo., where he pursued the practice of law. It appears that his wife separated from...
