OPINION
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 $ 1000 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 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 articles 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 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 articles 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...
