State v. Cox

• Decision Date: 10 October 1927
• Docket Number: No. 27838.,27838.
• Citation: 298 S.W. 837
• Parties: STATE ex rel. ZORN v. COX et al., Judges of Springfield Court of Appeals.
• Court: Missouri Supreme Court

298 S.W. 837

STATE ex rel. ZORN v. COX et al., Judges of Springfield Court of Appeals.

No. 27838.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

Certiorari by the State, on the relation of Will H. Zorn, against Argus Cox and others, Judges of Springfield Court of Appeals, to review their opinion in the case of J. B. Aldridge against relator (287 S. W. 650). Record and judgment of the Springfield Court of Appeals quashed.

J. N. Burroughs and Geo. T. Humphries, both of West Plains, and Schmook & Sturgis, of Springfield, for relator.

DAVIS, C.

This proceeding is here by virtue of a writ of certiorari directed to the Springfield Court of Appeals to review its opinion in the case of J. B. Aldridge, Respondent, v. Will H. Zorn, Appellant, 287 S. W. 650. The Court of Appeals awarded defendant a new trial, reversing the judgment and remanding the cause for errors in the instructions, but held that the question of the libelous nature of the publication wan properly submitted to the jury to determine the fact. The jury in the trial court returned a verdict for $800, defendant appealing from the judgment entered thereon.

The petition sought recovery for the libelous publication of a newspaper article, the opinion of the Court of Appeals) developing the following facts in hæc verba:

"Defendant is editor and publisher of the Howell County Gazette, a Democratic weekly newspaper printed and published at West Plains, in Howell county. September 4, 1024, there appeared in defendant's paper the article complained of. At the time plaintiff was sheriff and his son-in-law, Fred W. Juern, was a candidate for sheriff on the Republican ticket. The article upon which the alleged libel is founded is as follows:

"`Booze at Religious Revival Arouses Citizens Who Make Protest in Vain.

"`The protracted meeting held by Rev. Laramore in the Christian Church at Moody continues. A few nights after the meeting began some of the boys in attendance showed signs of intoxication and acted rather queerly. After the close of the services two empty fruit jars that had contained moonshine liquor were found outside the church. This is the report brought to West Plains Wednesday by N. F. McCallon, one of the elders of the church.

"`I wrote a letter to the prosecuting attorney about this matter,' said Mr. McCallon. `I wrote another to the sheriff, but neither one of them answered me or paid the least bit of attention to the matter. There is somebody selling booze in our neighborhood, and we want the authorities to investigate it, and if they don't do it we will have it done on the 1st of next January, when there will be a change of affairs in this county,' said Mr. McCallon.

"`From Pottersville comes the same kind of reports. At the Odd Fellows picnic at Pottersville recently there were several drunks on the grounds. An officer from West Plains was present, but made no effort to see if he could find out where the liquor came from.

"`The people of Howell county want a change and will get it in November.'

"McCallon, as a witness for defendant, testified that on July 15th, he wrote plaintiff `about some fellow being drunk at church,' that the main part of the letter was about appointing a deputy; that on August 20th, he wrote plaintiff again `about some fellow making a proposition to sell some liquor,' and `told him if he and Fred come down we could catch onto something; I didn't tell him who the party was; just wrote him what a fellow told me.' McCallon also says that he again wrote plaintiff on the evening of September `the 1st, and mailed it on the morning of the 2d.' McCallon further testified that he was in West Plains on September 3d and talked to defendant, and that if plaintiff had replied to his letter of September 1st he would not have received it until after his return from West Plains on the 3d. McCallon also testified that neither the letter of July 15th, or August 20th, mentioned `fruit jars with whisky in them for that hadn't come up yet.'

"Defendant testified that he met McCallon at the courthouse in West Plains and asked him 'how the meeting was getting along; I wanted to know so I could write an article about it for the paper. He told me they were having quite a lot of disturbance, and they had found some empty fruit jars in which there had been whisky outside the church. He said he had written the officers about it and had not heard from them.'

"Q. What, if anything, was said in that conversation about you publishing these matters? A. I didn't say anything about it, only I wanted to get a news item about the meeting down there. * * * I published the article of my own initiative. I thought the people ought to know it, and I believed it to be the truth. Mr. McCallon has always been truthful with me. I have been connected with him in the bank down there, and he has always been truthful and reliable.

"Q. The other part of the article referring to the Pottersville picnic affair, did you have any information of that affair? A. Yes. I was down at the Hollingshad garage, and Ben (Hollingshad) said there were several drunks at the Pottersville picnic and said there was an officer there, and nothing was done about it. I had received this information before I wrote and published the article in question. At the time I published this article I had heard of other disturbances over the county and complaints about the liquor law; had heard of a number of them before and quite a few afterwards.

"The letter which, McCallon says, was written on September 1st and mailed on the 2d is as follows:

                                "`Moody, Mo., 9—1—24
                

"`Dear Joe: There has been found a fruit jar near the church where the meeting is going on with whisky in it. There is no doubt but that some one is making it near here. There was a lady told my wife that her son said some boys would go off in a certain direction of a night after church. It might be that this outfit could be found.

                              "`Your friend, N. F. McCallon.'
                

"McCallon says he wrote this letter on the evening of September 1st, and mailed it at Moody on the morning of the second, but the envelope in which the letter was inclosed shows it to have been postmarked at Moody on September 4th. The original of the letter and the envelope were filed here for inspection, and the envelope shows postmarked as stated. Also the letter shows on its face that a figure 4, following the 9 in the date line, has been partly erased and the figure 1 written over. The figure 4 is plainly discernible. Plaintiff testified that he got the letter, the date of which is questioned, on September 4th. `I got it late in the afternoon, and the Gazette came out about 3 or 4 o'clock.' Plaintiff also testified that in response to McCallon's letter about disturbance prior to the letter of September 4th, he informally designated or appointed Scott Hicks of the Moody neighborhood to look after the matter of keeping order among the boys, and McCallon and others say that Hicks made some effort in that direction. Plaintiff testified that he and Hanle Woodrel went to the Pottersville picnic `to keep the drunks off the ground,' and that he was there from 9:30 or 10 o'clock `until they began to tear down,' and that he `didn't see any drunks.' Defendant, however, introduced evidence tending to show that Ralph Harper, somewhat intoxicated, was on the picnic ground. But there is no claim made that plaintiff's attention was called to this boy. Other witnesses testified that they were at the picnic and saw no evidence of drinking. Ralph Harper was out of the state at the time of the trial, but Lem Stein testified that he was a brother-in-law of Harper; that he was with Harper all day at the picnic, and that Harper was not drinking; that he and Harper were raised together; and that he `never knew of him taking a drink of intoxicating liquor.'"

Relator avers that the opinion of the Court of Appeals is in conflict with designated cases of this court, because the opinion holds, first, that the article published was not qualifiedly privileged; second, that plaintiff was cast with no duty to prove express malice; third, that an article published by defendant four years prior to the article charged as libelous was competent as evidence to show malice, even though not pleaded, and even though it was unrelated to the article in question.

I. With respect to the holding of the Court of Appeals that the article was not qualifiedly privileged, relator cites to show a conflict the following cases: McClung v. Pulitzer Publishing Co., 279 Mo. 370, 214 S. W. 193; Diener v. Publishing Co., 230 Mo. 613, 132 S. W. 1143, 33 L. It. A. (N. S.) 216; Cook v. Publishing Co., 241 Mo. 326, 145 S. W. 480; Walsh v. Publishing Co., 250 Mo. 142, 157 S. W. 326, Ann. Cas. 1914C, 985; Branch v. Knapp & Co., 222 Mo. 580, 121 S. W. 93; McClung v. Publishing Co., 274 Mo. 194, 202 S. W. 571; Clark v. McBaine, 299 Mo. 77, 252 S. W. 428.

The above cases warrant the principles, first, that the free comment and criticism of the public policy of a public official is justified when it relates to a matter of public interest, subject to its substantial truth and the want of malice; second, that, as to the qualified privilege, plaintiff bears the burden to show the falsity of the article and the presence of express malice; third, that there must be good faith on the part of the utterer in publishing the article, with reason to believe and believing in its truth.

Inasmuch as the opinion of the Court of Appeals specifically refers to the petition, it then becomes the subject of our consideration in determining the question of conflict on certiorari. Our object in referring to it is to note the matter plaintiff complains of. Plaintiff states in the petition that the charges that he ignored and paid no attention to the complaint of McCallon as to violations of law at Moody, and that he was present at the Pottersville picnic and there neglected and failed to perform his...