Rail v. National Newspaper Ass'n

• Decision Date: 22 December 1916
• Docket Number: No. 11400.,11400.
• Citation: 192 S.W. 129,198 Mo. App. 463
• Parties: RAIL v. NATIONAL NEWSPAPER ASS'N.
• Court: Missouri Court of Appeals

192 S.W. 129

198 Mo. App. 463

RAIL v. NATIONAL NEWSPAPER ASS'N.

No. 11400.

Kansas City Court of Appeals. Missouri.

December 22, 1916.

On Rehearing, January 29, 1917.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Mary Rail against the National Newspaper Association. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Hadley, Cooper Neel & Wright, of Kansas City, for appellant. Frank M. Lowe, of Kansas City, for respondent.

JOHNSON, J.

This is an action for libel against the proprietor of the Kansas City Post, a newspaper of general circulation published at Kansas City. The jury returned a verdict for plaintiff for $500 actual and $1,000 punitive damages, but the court sustained defendant's motion for a new trial "on account of errors in plaintiff's instructions," and plaintiff appealed.

The petition alleges that on August 24, 1910, defendant published of and concerning plaintiff the following false and defamatory article:

BABY FARM IS FOUND IN APARTMENT HOUSE; TWO ARRESTED; ONE BABY DIES.

MARY RAIL AND DR. JOEL McDANIEL HELD UNDER $500.00 BOND. WOMAN WELL KNOWN TO POLICE (meaning to charge and the readers of said article so published by defendant, as aforesaid, understood defendant to charge, and the defendant meant that the readers of said article should understand the same to charge that this plaintiff, by reason of frequent and numerous violations of the law, has become and is well known to the police) FORMERLY RAN HOME FOR BABIES ON THE WEST SIDE.

BODIES OF SIX INFANTS FOUND IN KANSAS CITY SEWERS RECENTLY. UNABLE TO TELL THE POLICE HISTORY OF ANY CHILD IN HER CHARGE; WOMAN DENIES RESPONSIBILITY FOR DEATH OF CHILDREN; ONE BABY DEAD; ANOTHER DYING AT ST. ANTHONY'S HOME.

Pursuing their investigations into the finding of six dead babies within the last few months in sewers in the neighborhood of Thirteenth and Fourteenth and Harrison Streets, the police last night went into the apartments of Mrs. Mary Rail, alias Miss Chardis Lundin (meaning to charge, and the readers of said article so published by defendant understood defendant to charge, that this plaintiff has, in common with professional criminals, more than one name, designated as an "alias") at 1515 Harrison Street (meaning to charge, and being understood by the readers of said article to charge, that the plaintiff is guilty of divers crimes, to wit, the killing of six infants, and has disposed of the bodies of said infants by placing them in sewers in her, plaintiff's, immediate neighborhood). They found four babies, all in sickly condition, one dies this morning and another is dying at St. Anthony's Home, Twenty-Third Street and College Avenue. The other two babies probably will not live (meaning to charge, and being understood by the readers of the said article to charge, that plaintiff was responsible for the alleged sickly condition of the last-mentioned four babies; that the plaintiff was responsible for the alleged death aforesaid of one of the above-named four babies; that plaintiff was responsible for the alleged dying condition of the baby aforesaid in St. Anthony's Home; that the plaintiff was responsible for the alleged condition of the other two babies of the above-named four, which alleged condition pointed to the certain death of said two babies).

Mrs. Rail and Dr. Joel McDaniel, 211 East Twelfth Street, were arrested by Detectives Zickefoose and Farrell. They were arraigned in the Municipal Court this morning on charges of violating the city ordinance governing the birth, death and adoption of infants.

NEIGHBORHOOD IS SURPRISED.

The case was continued until next Tuesday morning, to allow the defendants to get some witnesses. The two were released on $500.00 bond each.

The raid and the arrests bewildered others who live in the three-story apartment house on Harrison Street. Although several families lived there, no person knew there had ever been a baby in the rooms of Mrs. Rail until the detectives carried the infants out last night to send them to St. Anthony's Home (meaning to charge, and the readers of said article so published by the defendant, as aforesaid, understood the defendant to charge, and the defendant meant that the readers of said article should understand the same to charge that plaintiff had the said babies in her charge, intending to murder them, and that on account of said felonious intention the presence of the four babies aforesaid in her apartment was kept a profound secret).

In explanation of the four babies there, Mrs. Rail said she was nursing them and trying to find good homes for them at the recommendation of Dr. McDaniel. The physician said most of the babies taken to the woman's place came from 2111 East Seventh Street, an institute. He said that the mothers of the children had asked him to find good homes for their little ones and that he sometimes put babies in charge of Mrs. Rail.

DENIES KNOWLEDGE OF OTHERS FOUND DEAD.

When questioned about the bodies of the six babies taken from the sewers in that neighborhood during the last few months, the woman (meaning this plaintiff) said she knew nothing about them. She refused to tell the officers of any person with whom she had found homes for the little ones left in her care (meaning to charge, and being understood by the readers of said article to charge, that said six babies alleged to have been found in sewers aforesaid were received by the plaintiff, murdered, and their bodies cast into the sewers in the vicinity of her home). She would not give the history of any particular baby — where she got it, what she did with it, who was its mother or who had adopted it. Nothing that she said served to clear up the mystery which the police have been working upon for many months (meaning to charge, and being understood by the readers of said article to charge, that plaintiff had received the said six babies for the purpose of murdering them).

Of the four babies taken from the Rail establishment last night and removed to St. Anthony's Home one died this morning from a disease having the appearance of yellow jaundice, another is covered with sores, and apparently has not long to live, and the other two are sickly.

Mrs. Rail told detective Zickefoose last night that the babies came from 2111 East Seventh Street. One, she said was born yesterday, two Sunday and one Saturday.

BABIES MORE THAN A WEEK OLD.

Dr. W. L. Gist of the emergency hospital, who examined the infants last night, said that one was fully three weeks old and that none of the others was less than ten days old.

Mrs. Rail and Dr. McDaniel are held on three charges, violations of Sections 716, 855 and 856 of the Revised Ordinances of Kansas City. These sections provide that physicians must report all births and deaths to the Board of Health; that no person may conduct a baby farm without a permit from the Board of Health, and that infants for adoption must be reported to the Board of Health, and that permits for their adoption must be obtained by those adopting the child and also those giving away the child.

FORMERLY OPERATED A BABY FARM.

Mrs. Rail formerly operated a baby farm at 1735 Washington Street. The police knew about her then but she was never molested (meaning to charge, and being understood by the readers of said article to charge, that the plaintiff had a police record at the time of her alleged residence at 1735 Washington Street).

More than a year ago the woman moved to the Tencrede Apartments at 1515 Harrison Street, but it was not suspected until recently that she was again trafficking in babies (meaning to charge, and being understood by the readers of said article to charge, that the plaintiff bought and sold babies). She occupies the third floor apartment on the front side of the house.

There are two entrances, one by the front door into a vestibule, from which a stairway leads to all the apartments, three on either side, and a rear entrance by way of stairs, leading up from an areaway.

There are five rooms in the apartment. The babies which Mrs. Rail had in her possession from time to time were kept in three middle rooms, so that any visitors coming into the front room, and trades people coming in from the rear, never saw the babies (meaning to charge, and the readers of said article understood the defendant to charge, and the defendant meant that the readers of said article should understand the same to charge, that this plaintiff was keeping the said babies secretly so that she could dispose of them in unlawful ways).

NEVER SAW BABIES TAKEN INTO HOME.

Persons occupying other apartments in the house told a Post Reporter that they did not know Mrs. Rail was operating a baby farm until the police came there last night. They never saw Mrs. Rail taking babies in or out, they said, and the police supposed she transported the babies at night by way of the back stairs (meaning to charge, and being understood by the readers of said article to charge, and the defendant meant that the readers of said article should understand the same to charge, that the plaintiff maintained a covert repository in which she insidiously and secretly received babies and concealed them until she disposed of them by murdering them and dumping their dead bodies into the sewers).

When she was arrested, Mrs. Rail made but a brief statement to the detectives, denying that she was working in co-operation with Dr. McDaniel. "I have not been working with him," she said. "The babies I had were sent to me by their mothers." "In some cases Dr. McDaniel was the attending physician and recommended me, but he has nothing whatever to do with my place."

To a Reporter for the Post (meaning this defendant) Dr. McDaniel denied that he had violated any of the city or state laws in regard to the birth or adoption of babies.

EVERYTHING PROPER DECLARES DOCTOR.

"Every birth I have attended," he said, "I have certified according to law...