Cook v. Globe Printing Co.

DISSENTING OPINION.

LAMM, J.

Coming to Banc from Division One on the dissent of two judges, this case on reargument was reassigned to my learned brother Gantt whose opinion has become that of a majority. In the divisional opinion it was held there were no reversible errors in rulings on testimony, instructions, the motion to elect or on jurisdiction. It was held, too, that the article complained of was libelous per se and need borrow no aid from the many innuendoes pleaded. On these phases of the case the majority opinion agrees with that in division, except in one particular presently pointed out. .

In the divisional opinion it was ruled that the verdict was só enormous and out of proportion to all other verdicts in all other libel cases in every other civilized country and so out of proportion to the injury done plaintiff and took so little heed of the matters of mitigation established in the case that it bore on its face the unerring stamp of passion, prejudice, favor and a wild caprice abhorrent to a refined and exalted sense of justice between man and man; therefore, it could not stand at all. In the majority opinion in Banc the excessiveness of the verdict is conceded to the amount of two-thirds, vis., $100,000'; but my learned brethren are of the opinion that $100,000 of excess in .-a verdict does not indicate such lack of fair-mindedness an the jury as impeaches it for passion and prejudice. Being so minded, they put the alternative to the plaintiff to surrender two-thirds of his verdict or take a reversal and a new trial. To that result, namely, the sustaining of the verdict for any amount, I cannot agree *565■ — the reasons for non-conenrrence presently appearing.

Before formulating the grounds of this dissent two observations may be pardoned me as a foreword, vis. r

(a) In the first place, this plaintiff resided at Jefferson City in the county of Cole. The defendant was domiciled in the city of St. Louis. He left his home in Cole and brought his suit in Randolph on the theory that a cause of action arose to him in that county because a few of defendant’s newspapers circulated there. In the Julian case, 209 Mo. 35, it was resolved by a majority of my brethren that such a course was within the statutory right of a person libeled by a corporate defendant. But the tremendous leverage put in the hands of a plaintiff libeled of allowing him to select any one county of the 114 in this State, where-a given defendant, peradventure, may be hated, by the mass of the people because of promulgating views locally deemed unsound on political questions, where jurors’ minds necessarily take color from local bent and bias was considered by the majority opinion in the-Julian case, by the minority opinion and in the Meriwether case, 211 Mo. 199. In the minority opinion such palpable and singular advantage was used, arguendo-, against the construction put by the majority upon section 997, Revised Statutes 1899. But in the majority opinion it was said by our brother Valliant : “We appreciate the force of.the argument of defendant’s counsel wherein it is pointed out that under certain conditions an unfair advantage may be obtained by allowing the plaintiff to select the county in which he may bring his suit, but that argument should be addressed to the legislative department of the State government. The courts must take the law as they find it, whatever they may think of it. ’ ’ Fortunately, I think, for wholesomeness and evenhanded justice in our State, such arguments were addressed “to the legislative department of the State government,” and resulted in an act *566regulating libel suits (Laws of 1909, p. 347), viz.: “Suits for libel against corporations shall be brought in the county in which the defendant is located, or in the county in which the plaintiff resides; and when suit is instituted in the county in which the plaintiff resides, summons may be issued to and served by the sheriff of the county in which'the defendant is located.” The new act is just to both defendant and plaintiff. It does not compel plaintiff to go to a distant county where defendant is located to sue, it brings the corporate defendant to the home of the libeled party where naturally the humiliation suffered is the acutest, and the damage is the greatest. It permits plaintiff to beard the lion in his den by seeking the corporate defendant at its home, if he choose. But it denies to plaintiff the right to leave the homes of both and, as a ruse de guerre, search out a forum to try the case where prejudice may insidiously lurk or run rampant against defendant.

Surely it may not be assumed that a man leaves behind his good sense when he sits on the bench. He may not be blind to what everyone else must needs see. In State ex rel. v. Public Schools, 134 Mo. 296, this court was dealing with the administration of the school funds of the city of St. Louis and the right of taxpayers, parents and school children of that city to be freed from the evil clutch of partisan caucuses. In ruling that the hands of a band of politicians should be lifted from the administration of school funds and the management of the schools of that city, our brother Gantt used language in point here, vis.: ‘ ‘ The stream cannot rise higher than its source, and we are dealing with facts and men as they exist and we are not justified in treating this matter from an Arcadian or Utopian standpoint.” Attending to that bit of philosophy, does not a question spring spontaneously, vis., may not the lump of leaven in it leaven the whole mass of meal in this case? For instance: Would it not be *567Arcadian (and Utopian, too) to suppose that the venue of this case was cast by plaintiff in a distant county away from his business and chosen home for the purpose of even and exact justice? What was the guiding and natural reason of so singular a proceeding? Some things need no proclaiming on the house-tops. As some good old Methodist hymns sing themselves, so some things tell their own story — some questions are answered in the ashing. We take it when the Legislature indidireetly denounced that way of bringing libel suits by its saidi act denying the right of any other plaintiff to bring one hereafter in that way, the lawmaker indicated his well-grounded fear that justice might be scandalized and wounded by that course — nay more, possibly had already been scandalized cmd ivounded. For is it not a cardinal, canon of court construction in interpreting a law that the occasion and necessity of it, the mischief felt and the object and remedy in view, are to be taken into consideration?

In getting at the heart of the matter, viz., whether this verdict is the product of prejudice or bias, favor or passion, we should consider what the Legislature considered and what (I submit) every just man must consider, viz., the imiuinent danger of that very thing happening. I concede that under possible happy auspices and by great good luck the thing might not happen, but is it not “Arcadian” and “Utopian” to suppose it was likely not to happen? When the leopard changes his spots and the Ethiopian his skin then (and not till then) will it be permitted for any court to assume that a litigant is not putting his very best foot foremost in choosing his counsel or place of trial when he has the liberty of so large a choice in selecting the most promising spot to haul his enemy, the defendant, over the coals for punishment — for the hotter the coals and the more there are, the better his ends are sub-served. For mark (to use the quoted language) “we are dealing with facts and men as they exist. ’ ’ Fore*568warned "by the assurance of what might naturally he expected to happen, we are justified in scrutinizing the verdict jealously to protect the administration of the law from subtle influences doubtless calmly considered by plaintiff in selecting the region of his venire and venue.

(b) The Julian case went to the Supreme Court of the United States. The principal opinion by Valliant, J., left a Federal question in that case. There was a majority concurring opinion dislodging that Federal question, so that that august tribunal declined jurisdiction and we may never know what its wisdom, would say on the merits of questions most learnedly discussed by my brothers Valliant and Graves in the Julian case. For myself, I may be permitted a sigh of regret, for the sake of Jurisprudence, that those questions were not set at rest on their very merits by the highest court of the land, before the Legislature once for all wisely swept them aside by its new libel law.

I. I dissent from the majority opinion in so far as it holds, according to my reading, that instruction 13 asked by defendant and modified by the court was error in favor of defendant. I do not think it error at all.

The petition charged directly that the publication pertained to the Corrupt Practices Act. The provisions of the act are set forth in that pleading. It is alleged that defendant wickedly, designedly and maliciously contriving and intending to injure plaintiff in his good name and credit and to bring him into public scandal, contempt, infamy and disgrace with the public generally and among all good and worthy people, and to make it appear that it was the duty of plaintiff to swear to and file a true and detailed account and statement of the receipts and expenditures of the Democratic State Committee, with the names of the persons from *569whom received or to whom paid, with the object and purpose thereof, and that plaintiff in the discharge of that duty had willfully, corruptly and falsely made a false affidavit and falsely by swearing, etc., had been guilty of the abominable crime of perjury, did wrongfully, wickedly and designedly and with malice towards plaintiff, print and publish the following false, libelous, malicious, scandalous and defamatory words, article and matter, to-wit: (here follow those excerpts from the article alleged to be libelous in that regard). As said heretofore, the petition abounds in innuendoes. These innuendoes are interspersed from place to place passim in the article as pleaded, giving the pleader’s interpretation of the words. When the jury came to be instructed the innuendoes were dropped — the plaintiff electing to proceed on the theory the article sufficiently explained itself without innuendoes and was libelous per se. The article, as said, was plainly primafacie libelous and the mere innuendoes, therefore, filled no necessary technical office. But we do not understand that a plaintiff can submit to a jury a different libel than that charged in his petition with particularity any more than a plaintiff may sue in any other case on one cause of action and submit another to the jury and recover damages on the one substituted in the midst of the trial. For instance (in a purely hypothetical case), if A. is sued for printing of and concerning B. that B. is a thief, or a forger, or a perjurer, or a murderer, and if issues were framed on those charges and the truth thereof, or matter of privilege or of mitigation was pleaded by B. and threshed out at the trial, B. would not be allowed to recover damages of A. because the same article charged him with being a liar, a fornicator, a cuckold, a tippler or a gamester— no issue having been tendered or framed and no testimony having been introduced on any such behalf— or because he was merely held up to ridicule or provoked to wrath.

*570The plain libel sned on in this case was a false charge of doing one of two things, either of committing a perjury or of making a false voluntary affidavit. All the testimony was leveled at issues framed on such charges. Plaintiff by his instruction number one defines the main issue submitted to the jury to the effect that'-the petition charges that on a named date defendant, as owner and proprietor of the Globe-Democrat, “did wrongfully and with malice publish the following false and libelous words and matter, to-wit: ’ ’ (here follow the excerpts from the article pleaded in the petition). *None of plaintiff’s instructions limit or define the issues as relating to perjury or a false voluntary affidavit. Plaintiff’s third instruction contents itself with the statutory definition of libel reading as follows:

“3'. The court instructs the jury that the statute of this State defines a libel to be the malicious defamation of a person made public by any writing, printing, sign, representation or effigy, tending to provoke him to wrath, or to expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, and if therefore you believe and find from the evidence that the article admitted to have been published by the defendant corporation and complained of by plaintiff in this action was maliciously published and had a tendency to provoke him to wrath or to expose him to public hatred, contempt or ridicule or to deprive him of the benefits of public confidence and social intercourse, then the article in question is libelous and defamatory under the laws of this State.”

By its instruction number four (given) defendant defines perjury. It followed that by asking number thirteen, reading:

“13. The jury are instructed that the plaintiff complains of the portion of said article set out in in*571struction number one, because he says they charge him with being guilty:

“ (1) Of voluntarily making a false affidavit; and

“ (2) Of falsely by swearing, taking an oath prescribed by the law of this State; and that

“(3) By so doing plaintiff hadi then and'there and thereby been guilty of the abominable crime of perjury.

“The jury are therefore instructed that unless it appears from all the facts and circumstances proven in evidence that the portions of the publications complained of do in fact charge, that plaintiff had been and was guilty of the abominable crime of perjury, then the plaintiff cannot recover in any event. ’ ’

It will be seen therefrom that defendant undertook to limit the alleged libel to the charge of perjury. The court refused the instruction and interpolated in the third paragraph, between the phrase “abominable crime of perjury” and the phrase “then the plaintiff cannot recover in any event,” the phrase “or of making a voluntary false affidavit.” Complaint is made of this amendment, but it is not sound. If the alleged libelous article was so cleverly written that it was fairly susceptible of one meaning or the other, then defendant cannot complain that the court- put both propositions to the jury. In this case that course was warranted. It was defendant’s right (under the particularity of the pleadings) to limit the character of the libel which would meet the statutory definition. The court so instructed, and we perceive no error. When read together, as they must be, the instructions mean no more than that if the jury believed that defendant by making false charges of perjury or of making a false voluntary affidavit against plaintiff, thereby used words having no tendency to provoke him to wrath or to expose him to public hatred, contempt or ridicule or deprive him of the benefits of public confidence or social intercourse, *572they should find for defendant, hut if they believed otherwise they should find for plaintiff.

The statute defines libel, hence plaintiff was entitled to define libel in statutory words (McCloskey v. Pulitzer, 152 Mo. 339; Julian case, supra), although it was once doubted whether that was so (McGinnis v. Geo. Knapp and Co., 109 Mo. l. c. 138 et seq.). So the common law defines negligence, vis., the lack of care according to circumstance, and a plaintiff in a libel suit has no more right to allege the libel to consist of a false and malicious charge of perjury or of making a false and voluntary affidavit, and then turn round and recover because the alleged libelous screed merely had a tendency to provoke him to wrath or to deprive him of the benefits of public confidence or social intercourse or expose him to public hatred or contempt, than has a plaintiff the right in a negligence suit to particularize the elements of the alleged negligence, and then recover on a form of negligence not alleged.

II. We come now to the very bone of contention— damages. Whether $25,000 smart money and $25,000 compensation are too much depends on matter of mitigation. Were there such environment and facts as, considering the personnel of the parties to this suit, dulled the edge of the libel, tended to ease or palliate the charge and thereby commanded a corresponding diminution in the quantum of damages'? I think so. Attending to this view of the case, a bird’s-eye view of the record facts will assist to a just conclusion.

Defendant is a domestic corporation domiciled in the city of St. Louis, having a capital stock of _$500,000 and real and personal property, including the good will of a large business and an Associated Press franchise, making its business and plant worth around $2,-000,000. It has long owned and published in St. Louis a newspaper known as the Globe-Democrat, Republican in politics, of wide circulation and influence, circulating *573by mail, express and carrier throughout Missouri and elsewhere in the United States and in foreign lands. The edition known as the Sunday Globe-Democrat, at the time in hand, averaged so many as 153,000 or 160,-000 copies.

Plaintiff in years gone was a newspaper man and had been sheriff of Warren county, making a good record. In 1896 and subsequent years he had been a member of the Democratic State Committee, acting as its secretary, and during the campaigns of 1896 and 1898 was the chairman of that committee, bearing the honor of leading and commanding with marked vigor and success his party forces in the elections of those years. Subsequently he had been an efficient Secretary of State, but was defeated as a candidate for that office in the fall of 1904. In February, 1905, he resided at Jefferson City and was connected with a financial institution, known as the Central Missouri Trust Company, as its president — holding no political place or office, but engrossed in private affairs.

While things were in this fix, on the twelfth of February, 1905, in the Sunday edition of the Globe-Democrat, defendant published an article purporting to be written by a correspondent using the pen name of “The Old Politician,” and who, under that title, had been furnishing matter for the Globe-Democrat. “The Old Politician” was Donald C. Fitzmaurice. The record shows him to be a Democrat and the “Old Politician” articles were written in collaboration with two other Democrats whose identity remains to this day undisclosed, no attempt being made to establish it. Fitzmaurice was an experienced newspaper writer of good repute, residing in St. Louis, and before bringing his pen to the Globe-Democrat, had written political correspondence for the St. Louis Republic and other reputable newspapers.

It seems at that time there were two legislative investigations under way — one in the House, the other *574in the Senate — the General Assembly then being in session and Republican on joint ballot — both authorized by resolution. The Republican caucus nominee for the Senate of the United States was Mr. Niedringhaus. These resolutions charged that he had collected from the brewing interests of the State for use in the Republican cámpaign in 1904, $21,000'; that the names of those who contributed that sum were concealed in the report of the treasurer of the Republican State Committee of which he was the chairman and possibly treasurer, he putting the subscriptions down to himself. The testimony taken in those investigations tended, it is said, to give some color to the charge. His election was opposed by certain Republican members of the General Assembly. A movement, known in politics as a “bolt,” had begun and was growing, a new caucus threatened, and the resolution in the House was apparently in aid of that movement, while that in the Senate may have been indirectly intended to aid neither faction of the Republican party, but to uncover conditions believed by those behind the resolution to show that the State had nothing good to hope from Republican ascendancy. Be that one way or the other, the facts disclosed and the discussion in and about these charges (and the counter charges made) caused a current of anxious and live political events, now passed into history. It was while the legislative situation was acute and while the public eye was riveted on that situation and while the public press was discussing with animation and solicitude the matter of concealing political contributions from brewing, liquor and corporate interests (contrary to the Corrupt Practices Act) and when a campaign was just over in which plaintiff was a candidate and in which the concealing of political contributions made by corporations had been an issue much discussed before the people, that Fitzmaurice prepared and defendant published the article in question, bringing under review plaintiff’s alleged *575conduct of the affairs of the Democratic State Committee and undertaking thereby to point a political moral on a live political situation.

The record shows (and it is a matter of history of which we may take judicial cognizance) that the public mind for a long time had been sharply engrossed with the question of the control, partial control or attempted control of political parties by special interests —e. g., corporations, liquor interests and others mentionable. Doubtless the fear that those who had axes, to grind were only easting b'read on political Waters by laying heavy obligations on political committees by large contributions for campaign purposes, which contributions were sometimes disguised and concealed, and the grounded fear of defiling the honor and integrity of the ballot by the use of money, caused the passing of an act properly known as the Corrupt Practices Act — an act to accomplish publicity and sunlight in the political use of money. Public attention was called to lobbying and the danger, through lobbying, that the people’s will would be thwarted by corrupt means or out of gratitude for large and secret contributions to-committee expenses.

But before we speak farther of this article we must go back a little; for the history and record of this case cover several years, and it would be toying with the-facts not to deal with the whole scope of the case in putting a financial estimate on plaintiff’s damages.. Plaintiff was not without the furor scribendi. It must not be overlooked that under this record he deliberately “threw the first stone” and thereby began the war of words culminating in the article complained of. That he who lives in a glass house should never throw stones is taught at the mother’s knee and is a doctrine of use-in libel suits. On November 3, 1901, this plaintiff published a signed article in the St. Louis Republic. It seems that Cardwell and Lyons, one or both, had been writing articles for the Globe-Democrat. Of the *576character of these communications we may only judge by the tenor of plaintiff’s own article. We infer that Cardwell and Lyons were of the same politics as plaintiff and that plaintiff as a sometime editor and as a political commander-in-chief felt a call to answer their screeds. To that endi he published in the St. Louis Republic of the date mentioned an article dealing out censure freely and coarsely, charging that “but for the practically unanimous co-operation of the Republican members of the General Assembly — both House and Senate — with the few dishonest members of the Democratic side, the lobby would have been powerless to have accomplished anything in this State for years past; ’ ’ that this condition had existed for many years; that “sandbagging” by laying the legitimate business interests of the State under tribute was equally vicious with “lobbying;” that the Republicans of the General Assembly, at the time one Cardwell and Lyons were members, “voted practically solid with the lobby and the sandbaggers; ” that Cardwell and Lyons made records that were a disgrace to the party that sent them to the Legislature and that the statement that ' the Democratic State Committee received contributions from corporations with the understanding that the corporations should be protected against hostile legislation “were absolutely and infamously false;” that these men were but the tools “of the chief lobbyist of this State ’ ’ for the purpose of electing to the Senate of the United States a named corporation candidate; that the attack on the Democratic State Committee and the Democratic State officers is a part of the scheme; that before the campaign begins the real character of these “pretended Democrats” will be understood; that they were having ready access to the columns of the Globe-Democrat; that the Globe-Democrat had “defamed its own State” and naturally sheltered under its wing “notorious boodlers and sandbaggers;” that the paper had become “so disreputable in its libelous assaults” *577as to become “powerless for either good or harm;” that it was a “guerilla newspaper,” an “old whiskey ring organ, ’ ’ that there was ‘ ‘ an affinity between it and boodlers and sandbaggers. ”

What may have led up to that publication this record does not disclose. We may assume that public discussion on at least some of the topics suggested was at full tide. At once Cardwell sued the publishers of the Republic for libel in the' Jackson Circuit Court. Presently in that case depositions were taken at Independence, Missouri, and Mr. Cook and others testified. The record discloses that the testimony given by plaintiff and the other witnesses was scattered broadcast through the press and was a present and continuing topic of public discussion. In oné of its defenses in the case at bar, defendant pleaded extracts from this testimony and its general dissemination and public discussion by way of mitigation. These extracts so pleaded were admitted by the reply as correct. The following appear among’ them (from Mr. Cook, plaintiff):

“Q. In the campaign of 1896, Mr. Cook, did you receive any money for the Democratic campaign fund from any corporation in this State? A. In 1896?

“ Q. 1896, yes, sir? A. I think I did, yes, sir.

‘ ‘ Q. How much? A. I think Colonel Phelps made a personal subscription of one hundred dollars, and I raised some money around over the State; we had very little help, as I remember it, from any corporate interest. Afterwards, at the close of the campaign, I think he raised for the committee about two thousand dollars.

“Q. Colonel Phelps did? A. Yes, sir.

“Q. Did you put that in your report which was filed with the recorder of deeds ? A. It was put in — the treasurer makes the report, not the chairman.

*‘ Q. Were you with him when he made his report¶ A. Yes, sir.

*578“Q. Didn’t yon, Mr. Cook, keep a book in which yon kept track of these contributions? A. Yes, sir. It is not absolutely accurate, but I kept it as near as I could.

“Q. As near to it as you could? A. I had absolute confidence in the treasurer.

“Q. This money went into the treasury of the committee? A. Yes, sir.

“Q. How did you report it¶ A. It was reported in my name.

“Q. That it came from you instead of Colonel Phelps? A. Yes, sir.....

“Q. Now, in the campaign of 1898 did you collect any money from corporations of the State for the campaign fund? A. In 1898?

“Q. In 1898; yes, sir? A. I did not. Colonel Carroll gave me a thousand) dollars for the campaign fund of 1898 — I believe is the only man representing a corporation that contributed anything.

“Q. Did he tell you where he got the thousand dollars? A. He did not. I understood it was his own contribution.

‘ ‘ Q. You understood it was his own contribution— did you get six thousand dollars that came from the St. Louis Transit Company? A. I didn’t know of any money that came from the St. Louis Transit Company.

“Q. At any time during that campaign did Mr. J. M. Seibert bring six thousand dollars to the headquarters, which he stated to you that he had gotten from the Transit Company or from the attorney for the Transit Company? A. Mr. Seibert collected some money for the committee. I don’t know that it came from the Transit Company.

“Q. Did he tell you that it came from the Transit Company? A. No, sir; he did not.

‘ ‘ Q. Did he tell you whom he got it from ? A. He told me that Mr. Priest raised the money for him.

“Q. Who is Mr. Priest? A. Sam Priest.

“Q. Yes. A. He is a lawyer of St. Louis.

*579“Q. Dues lie represent the St. Louis Transit Company? A. I think he does; yes, sir.

‘ ‘ Q. How much currency did he bring in from that source? A. I don’t recall now.

“Q. Was it six thousand dollars? A. I don’t know; possibly it might have been.

“Q. Yon don’t swear that it was not six thousand dollars ? A. No; my understanding was that Mr. Seibert had raised this fund for the use of the party. It never went into the hands of the committee.

“Q. Did he turn any part of it over to yon? A. Part of it; yes, sir.

“Q. How much did he turn over to yon? A. I couldn’t tell without looking over the treasurer’s books,

“Q. Of course you spent it for the committee ? A, I turned it into the treasury of the committee.

“Q. And it was afterwards paid out on vouchers and so forth from you? A. Yes, sir.

“Q. Did Mr. Carroll subsequently raise another five thousand for the committee?. A. I couldn’t say; Mr. Seibert paid it out for the benefit of the committee, also.

“Q. How much did Colonel Carroll raise in this instance? A. I don’t know.

“Q. Was it five thousand dollars? A. Might have been.

“Q. It was some thousands of dollars? A. I don’t think it was five thousand dollars. I know he paid me a thousand dollars.

“Q. Who did? A. Colonel Carroll; and I paid it into the committee in my own name — to the treasurer of the committee.

“ Q. Now, this money that was subsequently collected by Colonel Carroll and given to Mr. Seibert, do you know the amount of that? A. No, sir; I don’t know how much it was.

“Q. Well, was it a thousand dollars? A. Why, I think it was three or four thousand dollars.

*580“Q. Three or four thousand dollars? A. Tes, sir.

“Q. And what part of that do you say, or did you say — or did Mr. Seibert give any part of that to you as chairman of the committee? A. He turned over — I don’t remember how much; I could tell by looking at the treasurer’s report. Whatever he turned over to me I turned into the treasury, and it is reported as contributed by me; and the balance of the money that Mr. Seibert received was disbursed by himself in the close counties of the State.....

“Q. Do you know that it came from the Transit Company? A. I do not.

“Q. Evidently it came from some corporation? A. My understanding was that Judge Priest had raised the money for the conduct of the campaign.

“Q. Prom what? A. I never asked him. I suppose it was from the corporation interests, probably, that he was representing.”

On cross-examination, plaintiff further testified •as follows:

“Q. Do you know from what source Colonel Phelps raised the $2000? A. I do not.

“Q. That you regarded as his personal contribution at that time? A. No; that was the $2000'in 1896 —Colonel Phelps brought the check there to headquarters, and at the close of the campaign of 1896, a few days after it was over, it was entered upon my books to his credit, later, when we went to make up the statement for publication — l mean the sworn statement of the treasurer, the personal representative of Gov. Stephens insisted—

“Mr. "Walsh: Who was it, just mention it.

“A. (Continuing): The contribution ought not to go in Colonel Phelps’ name, and it was at their request I went over and saw Colonel Phelps and told him the objection to it, and he wrote out an order to the treasurer to credit that in my name; that is how it came *581it was reported in my name instead of Colonel Phelps’s ón the sworn statement of the treasurer. I don’t .know how he raised it, anything about it.

“Q. That was done at the request of one of Gov. Stephens’s personal representatives? A. One of Governor Stephens’s personal representatives at that meeting. Col. Phelps knows all about that.” . . .

On his re-direct examination plaintiff further testified as follows:

“Q. Who was the personal representative of Mr, Stephens that came and asked you to let the money of Mr. Phelps appear in your name ? A. I am willing to' state that if it is necessary.

“Q. It is necessary, I think; and I will ask you?' A. Mr. E. T. Orear.” . . .

And afterwards appeared E. T. Orear as a witness on behalf of the plaintiff, and being duly sworn, on his examination in chief, testified as follows:

“ Q. Your name is Edward T. Orear. A. Yes, sir.

“Q. Where do you live? A. At Jefferson City,

“Q. Just state what you know with respect to the-contribution of $2000, whose name it should be put in, and who was present at the time the agreement was-made, if you know? A. Shortly after the campaign, shortly after the election, Mr. Cook invited me to come to St. Louis, either by letter or telegram, I have forgotten now which; and up to that time I did not know that Colonel Phelps had contributed anything excepting: $100. Mr. Cook wanted to confer with myself and some others in regard to closing up the work of the campaign.. I met Mr. Cook and Gov. Stone, and I forget whether Mr. Seibert was present or not during the first part, of the .interview — he was during the day, but I am not clear whether he was there first or not. But Mr. Cook first informed me that the bills of the campaign had all ■ been paid, and that in closing up the work they were *582about $2000' short, and that Colonel Phelps had contributed that money and that he had discharged the indebtedness.

“Q. That who had? A. That is, Mr. Cook had paid all the bills, and that they were then ready to make their report. My recollection is that Gov. Stone first suggested that the contribution of $2000 by Mr. Phelps ought not to appear as having come from him.

“Q. From whom? A. From Mr. Phelps; because of the fact that he was the attorney of a corporation. The matter was discussed there between ns for a short while, and I suggested that I could see no impropriety to its .being credited to some one else provided Colonel Phelps made no objection to it; and it was then that Mr. Cook went up to see Mr. Phelps.

“Q. Cook himself? A. Yes, sir; Mr. Cook; I think he probably went to see him twice — probably did not get to see him the first trip; but anyway, during the day he went to see him twice, and I don’t think there was anything said in the conversation first, as to whom the contribution should be credited to; but finally I was informed that night that Mr. Phelps had given Mr. Cook an order—

“Q. (Interrupting): You were informed by whom? A. Well, I think Mr. Zeibig, or Mr. Cook; I don’t know which.

“Q. Who is Zeibig? A. Mr. Zeibig was the treasurer of the committee — that Mr. Phelps had given Mr. Cook an order on Mr. Zeibig to credit the deposit in Mr. Cook’s name.

“Q. When were you in this conference which you say took place between Mr. Cook and ex-Gov. Stone and yourself; were you there as a representative of Gov. Stephens?' A. Well, I had been associated with Mr. Stephens, and I suppose I had been looked upon as his representative in the campaign to a degree. . . .”

On his cross-examination said Orear testified as follows:

*583“Q. And you say you first learned of this contribution after the election? A. Yes, sir.

“Q. And when the accounts were being made up? A. Yes, sir.

“Q. For publication,! believe. A. Yes, sir.

“Q. It is the accounts that are required to be made up under the law that you refer to, I believe? A. Yes, sir.

“Q. And there were present, you think, yourself, Mr. Cook and Mr. Zeibig and Mr. W. J. Stone? A. I ana not very clear in my recollection whether Mr. Zeibig was present at the first part of the interview or not, but he was there during the day.

‘ ‘ Q. And it was you that made the suggestion that if Mr.,,Phelps would consent you saw no reason why the $2000 might not be shown in the name of Mr. Cook —as coming from him? A. Yes, sir; I don’t remember the exact words, but that is about the substance of it.

“Q. And in fact, it was on your suggestion that Mr. Cook went up to see Mr. Phelps — or rather upon the suggestion— A. Well, that led to it; I don’t remember just who said he had better go, or anything; but I remember I stated that Mr. Cook having received the contribution, it would be better for him to see Mr. Phelps. . . .

“Q. Well, you kneiv all this had reference to so entering it? A. Yes, sir; I didn’t see the order given by Mr. Phelps to Mr. Cook, but I ivas informed, that he did give him a written order.

“'Q. Yes, sir; and it was agreed there that that should be done? A. Well, that is just exactly what happened there, Mr. Lehman; I have related it.

“Q. Yes, I would infer that it was agreed from that; now, Mr. Orear, did you have any idea that there was any impropriety in the receipt of the money from Mr. Phelps for the campaign funds? A. Well, I decline to answer.” . . .

*584Prior to the Cardwell case, to-wit, on the 5th day of January, 1899, defendant’s newspaper, under the head of “Democratic Campaign Mysteries,” published an editorial to the effect that there were strange and well verified reports concerning the disappearance of contributions to the Democratic Committee fund; that Col. W. H. Phelps holds a receipt for $2100= given by him to that fund two years ago; that no report of the receipt or the expenditure of that money had been made by that committee; that the law required a sworn statement of such receipt; that the question was: what had become of Col. Phelps’s $2100? It was suggested the “chairman” and others concerned would do well to furnish an explanation; that the matter was not a vague rumor but based on what Col. Phelps himself said, who had the receipt in his hands; that he and every citizen had the right to know how the money was spent; that a select and secret Democratic fund seemed to be well established in this State in defiance to the statute; that Col. Phelps’s contribution could not be called an inconsiderable or trivial one and that it “had gone and left no sign; ’ ’ that Glov. Stephens had fortified himself against occurrences of this kind last fall by making no campaign contributions; that his facilities for inside observation relieved him from much blame in that behalf, but that his course had “not stopped the remarkable leak in favor of others less favored.” At once Mr. Cook went to the Globe-Democrat office with some friends. He and Mr. King, the editor of the Globe-Democrat, do not agree exactly as to what happened. In substance, Mr. King says that the question discussed was the acknowledgment of the receipt of the money and that Mr. Cook pointed out the item in the treasurer’s report'and that the money had been credited to him, Cook, arid distributed in the campaign; that Mr. Cook produced Mr. Phelps’s written order to change the credit from Phelps to Cook. Mr. Cook says that the question of who made the report was also up *585for consideration, and that he pointed ont the fact that Mr. Zeibig made the report. Mr. King does not recollect that phase of it, but the differences seem immaterial. The result of the interview was an editorial in the Globe-Democrat relieving Mr. Cook of any charge of misappropriating contributions.

Let the scene now shift to the winter of 1904-5'. As already said, Mr. Cook had just before been a candidate for Secretary of State. The general public knew of his testimony in the Cardwell case by newspaper and oratorical discussion in that campaign. He had been defeated with his entire ticket except governor. The Legislature was Republican on joint ballot. Mr. Niedringhaus was the Republican caucus nominee for Senator. A holt had been organized and a deadlock followed. He was charged with concealing a large contribution made by the breying interests of this State to the Republican committee of which he was head and treasurer. Two legislative investigations were pending in which the facts were disclosed showing the report required by law from that committee did not disclose the source of that large contribution, but credited it to Mr. Niedringhaus. It was publicly asserted that a “mysterious stranger,’’charged with a mission to break the deadlock and elect a Republican Senator, was on the ground from Washington. Be that as it may, on the twelfth of February, 190®, as said, the article of “The Old Politician” was published. The caption or head-notes in heavy type somewhat shadows forth the purpose of it and ran as follows:

“OLD POLITICIAN ON PARTY FUNDS.

“Fight of the People — Wrecks Through Covering Up and Fraud in Campaign Contributions — The present Investigation — The Thursday Conference, Why It Was Called and What May G-row Out of It.”

*586The style is that of burlesque allegory. It is written purposely with bad spelling, possibly under the mistaken notion that the writer would gain credit by posing as a plain, illiterate man without Addisonian or drawing-room polish of phrase or manner, but an outspoken, rough, worldly-wise man who called a spade a spade, who had a shrewd and smartish gift of storytelling to illustrate his points, and a home-spun insight into men and things supposed to rivet the attention of the hearer and persuade belief. Undoubtedly it was libelous if false. Its broad motif, apparently, was the defeat of Mr. Niedringhaus. It speaks of this business of collecting big campaign funds out of interested contributors and turning them in and publishing them as from nobody, or from somebody that never gave a cent; that Republicans, Democrats and Populists felt alike on that question. The investigation of Niedringhaus was said to be to try to “rub it in” on the people that the Republicans were trying to elect a man Senator who did the same thing Mr. Cook had done and the article was intended to not let the people forget it if it could be helped; that the people were “dead sore” on the question of campaign funds; that (quoting) “they are wide awake on this business of men who handled big money in the name of the party an’ who sell out legislation in advance in exchange for campaign contributions. The way Cook acted at the first session after the campaign of 1896 and the way him an’ Seibert both acted up here at the first session after the election of 1898, had put the people to thinkin’ that its goin’ to be that way all the time when chairmen of campaign committees get campaign contributions they don’t like to tell about.” The writer says the people wanted the investigation no matter “who it hits or hurts” and that he was for it; that both parties in Missouri looked alike to him no'W; that he didn’t want to go back to the time there was but one party in Missouri; that certain Politicians (naming them) knew how the people felt from seeing *587the way Mr. Cook had heen “hacked” at the polls; “an’ (quoting) the big fight that was being made against the election of Niedringhaus after he got a caucus nomination, because it hadn’t been found out on him before the caucus met. ’ ’

But in leading up to his object, Fitzmauriee used the conduct of Mr. Cook as chairman of the Democratic State Committee and his defeat at the polls the preceding November to drive home and clinch his moralizing and political advice. He assumed that Cook had defeated himself by his admissions on the stand in the Cardwell case and had injured his party thereby. Under the allegory of a trip across the American desert on the Old Santa Fe trail to Independence, Missouri, he pictured Mr. Cook as bringing his party in the Card-well case to the same town; the article spoke of him as “the man who swore to what wasn’t so.” It applied to him the injunction, “thou shalt not bear false witness,” leading up to it in this way:

“That’s when your Missourian gagged, an’ bucked, an’ kicked, till he knocked the dashboard out an’ run away with the whole darned outfit. He’d stood Stone. He made a bad face over him, but swallowed him, alum an’ all. That’ll show you that he could stand anything but Cook.

“Now, Cook ain’t the issue as a public officer, mind you. Sam was a good sheriff of Warren county. He made a good Secetary of State, an’ administered that office an’ closed up its accounts without the loss of a dollar to the State. Nothin’ was ever proved against him but what he proved himself in that Independence story, but say, if you don’t think that was enough, ask Sam. Here he comes, once the most popular man in Missouri, away back yonder behind the next lowest man on hist- ticket, an’ so far back of him that you’ve got to get a spyglass to see the dust he’s a-raisin’. Say, we were all against him. Republicans, Democrats an’ all of us. There’s no such thing as party lines when *588it comes to dealin’ with that there question. I tell yon, Missourians is all alike. Give ’em a question that goes down to the bottom of their common nature an’ they’ll answer it with almost one voice, an’ that voice’ll be an echo of the one that came down from Mount Sinai a-sayin’, ‘Thou shalt not bear false witness.’ ”

It uses the expression, “After Sam Cook had swore that he contributed $2500 to a campaign fund that was contributed by another man whose name Sam wanted to conceal.” It says, “A man who’ll do what Sam Cook done, to serve his party or hisself instead of serving the Lord, an’ will take the name of the Lord in vain in swearin’ to an untruth will never meet their [the people’s] approval.” After telling a story of two boys who stole .pie and how one got licked for lying while the other ate the pie, it states, “But Bill knows that Sam got a good deal of thé pie before he got caught in the lie and licked .... and I guess Bill knows that Sam got licked as soon as he got caught lying, and that he’ll keep on gettin’ licked as often as he shows up on the ticket.” Other statements of the same kind are made, in one the word “perjury” is used.

In explaining how these charges came to be made in that form, Fitzmaurice claims that although he knew at the time of the Cardwell depositions that Mr. Cook was chairman and not treasurer of the committee, and although he knew the law required the treasurer and not the chairman to make the affidavit, yet he got momentarily confused by the fact that Mr. Niedringhaus had acted in both capacities for the Republican committee and for the moment treated Mr. Cook as filling both places on the Democratic committee.

On February 26,1905, Fitzmaurice returned to the matter of his prior article, in the Globe-Democrat. After dealing with the Republican senatorial situation at some length and pointing out that legislative pay would be cut down to a dollar a day at about that time in the spring called “groundhog’s day,” and that if a Senator *589was not elected at that time none was likely to he elected at all, he appended a retraction and apology in the same vernacular and idiom. (See principal opinion for its terms.)

On the tenth of May following plaintiff sued for $100,000 actual, and $150,000 exemplary, damages, $250,-' 000 in all. The verdict came in for $150,000 — eleven jurors signing. That verdict was made up of a blending of actual and punitive damages, half and half. It is a coincidence of only possible value to Jurisprudence that while the jury cut away $100,000 from plaintiff’s original estimate, my learned brethren have now cut away $100,000 from the jury’s estimate — both reductions proceeding by equal leaps and bounds, turn about being fair play as the saying goes. Bearing in mind now that defendant pleaded the testimony of Mr. Cook and Mr. Orear taken in the Cardwell depositions and the broad dissemination of that testimony and a State-wide discussion in the press and on the “stump,” continuing down during the campaign of 1904 as a live public question, by way of mitigation of damages, and bearing in mind that plaintiff went to trial solemnly admitting in his reply to defendant’s answer that he and Orear gave that testimony in the Cardwell deposition, we come to the trial itself. At that trial Mr. Cook took the stand in his own behalf. The principal opinion sets out his testimony in extenso. We need only call attention to the fact that having admitted, for the purposes of the trial, that his former testimony was correct, he testified at the trial that it was poorly taken and poorly reported. Nevertheless, in substance, he admitted getting $2000 from Col. Phelps and giving Col. Phelps credit in his own book for that sum, Ziebig’s books giving a like credit at the start; that, a meeting was called shortly after the campaign was closed of parties interested in the accounts of the committee; that Mr. Cook attended that meeting and went to St. Louis for the very purpose of at*590tending it; that a controversy there arose over the Phelps contribution; that Gov. Stone was opposed to allowing the books to show a contribution from Phelps; that the representative of Gov. Stephens was also wrought up on that score. Mr. Cook desires us to understand “that it was a matter of indifference to him,” but (observe) as the result of a consultation and for the very purpose of arranging the data in the treasurer ’s books so as to avoid the publicity of allowing the credit to appear in Col. Phelps’s name, Mr. Cook went to see Col. Phelps to persuade him to consent to a substituted name. He says he did not suggest his own name to Col. Phelps, but it appears that after two interviews he bore back to Zeibig, the treasurer, an open order from Col. Phelps to allow the contribution to appear in Mr. Cook’s own name. The evidence abundantly shows that the very purpose of this substitution was to conceal the matter from the public and that Mr. Cook was instrumental in doing that very thing. It was understood that if the substitution could be procured, Zeibig would be willing to make an affidavit that the contribution was made by a substituted party, the substitution being for the purpose of easing his conscience in that behalf. In cross-examination plaintiff described this meeting thus: “A meeting of Gov. Stone, Mr. Orear and those that would meet there for the purpose of closing up the campaign.” It is shown further that when plaintiff entered the room those present were discussing the making of the affidavit under the Corrupt Practices Act. “They were discussing that matter when I entered the room,” said he. Nothing else was discussed that witness could remember and when he heard the objections urged against the Phelps contribution he took the necessary steps to have it changed to himself — no one else lifting a finger to that end. He made two trips to see Col. Phelps, saw him both times and procured the written order and “handed it to Mr. Zeibig with the belief that *591Mr. Zeibig would credit it to somebody else other than Col. Phelps . . . .” “And would swear to it?” was asked of the witness. His reply was: “Yes, sir; certainly.” Returning to the campaign of 1898, being interrogated as to an item of $3500 credited to him as Ms personal contribution by the report of the treasurer, Mr. Cook again admitted that he had not contributed one cent of it, that he, as chairman, got $1000 from Col. Carroll, the general attorney of the Chicago, Burlington and Quincy Railroad, and had put it in as coming from himself because Col. Carroll had told him “he didn’t want it credited in Ms name;” that $3500 had come from Mr. Seibert; that he, Seibert, got the' money from Col. Carroll and Judge Priest and had turned it over to him and he, Cook, had taken the credit for it in Ms own name because Mr. Seibert “preferred that I would credit it to myself.” He testified further that the treasurer “knew he,” Cook, “didn’t have any $3500,” and that he told the treasurer that Mr. Seibert gave him the money; that he had “no secret from the treasurer;’’ and that he, the treasurer, “probably knew where it came from.” “I took the burden,” said the witness, “or whatever it was, in having it credited, in my name.” He says he expected that the treasurer’s report would be sworn to and that the contribution would appear in his name in the sworn report.

The deposition of Col. John H. Carroll was read. He testified that when he gave $1000 to Mr. Cook he told him, Cook, “I don’t want this matter advertised.”

The deposition of Col. William H. Phelps was also read. He testified that he gave Mr. Cook $2000 in person and got Zeibig’s receipt for that sum; that Mr. Cook came to his office and personally solicited the contribution, stating that Grov. Stephens had been drawn upon.for that sum but had declined to pay because he had contributed all the law would permit for campaign purposes; that subsequently Mr. Cook came to him and told him that the leaders of the party, because of wit*592ness’s connection with a railroad, thought it best that his, Phelp’s, contribution should not appear in the report required by law at the hands of the treasurer and wanted to know if he had any objection to its appearing in someone else’s name. Witness told Mr. Cook that the contribution “was not made for advertising purposes and he had no objection.” Accordingly witness gave an order on Mr. Zeibig, the treasurer, to have Cook substituted for Phelps. The recollection of the witness was that Cook suggested his own name.

The deposition of Mr. Seibert was also read. He testified that he got money from Priest and Carroll in currency and from the brewers and gave it to Mr. Cook. (Note — This is the money Mr. Cook caused to be credited to his own name in the treasurer’s report of 1898.)

So that it is fair to say that the testimony at the trial substantially agrees with that given by Mr. Cook in the Cardwell depositions.

With the record in this fix defendant’s learned counsel argue that, whether the charge is that of perjury (i. e., a felony, R. S. 1899, sec. 2033) or that of making a false voluntary affidavit (i. e., a misdemeanor, R. S. 1899, sec. 2036) a dilemma is sprung on plaintiff, impaling him on either horn. That is, in either event the charge is true, hence a demurrer lay and it was error to overrule it. This argument runs on the accepted doctrine that all who intentionally participate in or procure the commission of a misdemeanor are principals in the eye of the law, and every one who participates as an accessory before the fact in the commission of such a felony as perjury, is himself (broadly speaking by including the idea of subornation) guilty of perjury. [State v. Wagster, 75 Mo. 107; State v. Fredericks, 85 Mo. 145; State v. Orrick, 106 Mo. l. c. 119 et seq.; State v. Edgen, 181 Mo. l. c. 590; R. S. 1899, sec. 2364] The postulate assumed by counsel is sound as an abstract proposition in morals and law. In violations of law the hidden hand is as guilty as the open, *593the man who holds the string that pulls the pnppet is as guilty as the puppet himself, and either is subject to punishment by the law, or to just criticism and excoriation by the citizen or newspaper. But in this case defendant did not plead the truth by way of justification. Our' code contemplates that such defense, if relied on,^should be pleaded (R. S. 1899, sec. 636), that defendant may plead both matter in justification and mitigation so long as he states them separately. It is old doctrine, none the less sound because old, that justification by way of the truth is subject-matter of defendant’s plea. This is so because defamatory matter is presumed to be false. That doctrine is based on those wise maxims which are of the very bones and framework of the body of our law and make its chief glory, vis.: In favor of innocence, all things are to be presumed; odious and dishonest things are not to be presumed in law. Therefore, in a libel suit the burden rests upon the defendant to show the truth of his charges and overcome the presumption of innocence. Thus, in McCloskey v. Pultizer Pub. Co., 152 Mo. l. c. 341, plaintiff introduced no-evidence in chief except the alleged libelous publication.

True, in the case at bar, plaintiff alleged the publication was false, and defendant, with many specific denials, denied generally the allegations not admitted; but “no principle is better established than that the truth of slanderous words cannot be given in evidence under the general issue either as a defense or in mitigation of damages.” And the plea of justification must with precision directly and distinctly allege the truth-of the defamatory matter charged. We need not dis-cuss the question whether a plaintiff should be non-suited if, in making his case in court, he unequivocally admitted the truth of the charge as made, for that question is not in this case.

*594Defendant having deliberately elected not to justify by alleging the truth (thus withdrawing that issue of fact from the jury) may not raise it on demurrer and have us establish it ás a matter of law. The principal opinion ruled with the divisional opinion on that point. But, as pointed out, all these phases of the case were pleaded as matter in diminution of damages and went to the jury on that issue. So that, on the quantum of damages, we have them presented legitimately to us for our consideration.

We take it as a sound proposition to be granted by all men as of course that if defendant, instead of charging Mr. Cook with actually swearing to a lie, had contented itself with publishing excerpts from his testimony given in the Cardwell case (and which testimony had become an established historical fact universally blazoned abroad in a matter affecting the public interests and involving the duties of officials or quasi-officials in their relations to the public) and had commented thereon to the effect that while Mr. Cook made no affidavit yet he intentionally and effectually made the path straight and plain for the treasurer to make a misleading and false one, that he had industriously caused the documentary data to be prepared and furnished whereby the public would be deceived and the good purposes of the law adroitly circumvented and struck down to the ground, it would have been guilty of no libel, although it had further charged that what Mr. Cook did was precisely as bad as what the treasurer did or Mr. Niedringhaus was charged with doing. Nor would it have been libel if the newspaper had drawn a political moral by pointing out that defeat was bound to follow the exposure of such violations of a good law, although persons guilty, in that behalf were merely actuated by mistaken sentiments of party pride and fealty as contradistinguished from the general public weal.

The premises considered, the sum of the matter is *595this: In so far' as Mr. Cook was charged with violating the heart and intent of the Corrupt Practices Act by taking an active, chief and accommodating part in concealing the source of certain political contributions, he may not say he was not (in so far forth) so guilty as to be the fair subject of public criticism. In so far forth as he knowingly and accommodatingly furnished and arranged the data upon which the treasurer made a misleading sworn public statement, we cannot consent that the whole blame should be laid upon the treasurer of the committee as a scapegoat and Mr. Cook he acquit. The difference between what Mr. Cook actually did and what the “Old Politician” charged him with doing may not be the difference between tweedledee and tweedledum but it is not so manifest and great that in estimating his damages the difference between the true and the false can be judicially estimated at $50,000. What are $50,000 to be paid for except for the difference between doing the thing (of which he was not guilty) and preparing the way and means for another to do it (of which he was guilty) ? Therefore, we humbly submit that even if we are to make the judicial attempt to squeeze and wring the prejudice and passion out of a jury’s verdict, that commendable and baffling result has hot been worked out in this case.

But this court has never yet ruled that it will allow to stand for any amount a verdict that is the evil product of passion, prejudice or favor. With all due deference the majority opinion plows around that proposition by holding that the verdict was not so enormous as to indicate the presence of those abhorrent influences. In Chitty v. Railroad, 148 Mo. 64, after a most exhaustive and learned review of the authorities upon the question we held by way of conclusion as follows (p. 82): “If this was a case where the judgment of the circuit court was otherwise errorless a remittitur would be proper under the old rule, but under the law as it is now interpreted, *596it is a case where the verdict on its face appears to be the result of passion or prejudice (otherwise unjust), which the action of the circuit court has not cured, and the judgment should therefore be set aside. ’ ’ And in a very late case in Division Two, Partello v. Railroad, 217 Mo. 645 (l.c. 661), it was said of a verdict in a case of tort: “Prom a reading of the facts disclosed by the record in this case, it is apparent that the amount of the verdict is excessive and beyond reason, and so gross as to shock the sense of justice. It cannot be accounted for upon any theory other than prejudice or passion. That it was largely excessive was tacitly admitted by plaintiff when she remitted therefrom the large sum of $10,000, leaving the verdict yet remaining at an excessive amount. [Gribney v. Railroad, 204 Mo. 704.] We think the ends of justice will be subserved by a néw trial. ’ ’ In Rodney v. Railroad, 127 Mo. l. c. 691, the argument turns on the presence or absence of passion and prejudice. Said Brace, P. J.: “ The verdict is large, we think excessive, but not so excessive, under the circumstances of the case, as to induce the belief that it was the result of favor, passion or prejudice on the part of the jury. The appellant, therefore, is not entitled as of right to have the judgment reversed for this reason. ’ ’

Speaking of “prejudice and passion,” they may be traced in no other way except through, their visible result in swollen and inflamed verdicts. Sometimes misconduct can be shown and a verdict arrested because of it. Sometimes the cause of the prejudice and inflammation may be traced to improper and bitter invective of counsel or a misstatement of facts. But courts would be powerless indeed if they could not reason from effect back to cause or if they had no way of discovering passion and prejudice except in palpable misconduct of some one or more jurors in the trial or of misconduct of counsel. In this case no such misconduct appears. Indeed eloquent counsel for respond*597ent (out of abundant caution) assured us ore tenus, that their conduct below was “calm,” that calmness reigned throughout the trial, that calmness (like order at Warsaw, maybe) entered with the jury into their room and presided serenely over their deliberations. We have no disposition to doubt the. utmost sincerity of counsel in giving us those assurances. Doubtless, too, counsel felt they were “calm” when they assured us at our bar that although there never had been such a verdict in any case before, yet there never had been in all the annals of time so wanton and wicked a libel, one so free from mitigating circumstances. We were assured, calmly, that if the columns of the Globe-Democrat containing the libel were put end to end they would reach from here to Kansas City^a living, scorching flame of slander one hundred and fifty miles long. It was argued that the verdict was about one dollar for each copy of its Sunday issue and that a dollar for each was little, enough. We were urged, calmly, to sustain the entire verdict because the people demanded at our hands to make an example of the “yellow press.” As if it was our judicial duty to smite defendant hip and thigh as a member of the yellow press (assuming calmly it was a member of it) — as if it was our judicial duty to turn a flexible and receptive ear to catch an assumed groundswell of popular or partisan clamor, or become a weather vane to point the way the wind sits — as if we sit to administer revenge and not justice. Though doubting much, we may assume that Although such fervid appeals appear in the dry stick in the appellate court there was entire “calmness” in the green stick of the trial nisi. And yet in spite of assurances from distinguished counsel of the calmness below there was a verdict of such outrageous proportions in view of the matter of mitigation we have pointed out, as brings a blush spontaneously to the cheek. A $150,000 verdict in a suit for libel in a case where plaintiff is entitled to damages, but is *598not shown to have lost a single friend or a single dollar by virtue of an excess of criticism beyond what was just and proper (and such excess plainly existed) is an anxious fact challenging sharp and instantaneous judicial solicitude. For be it always remembered that if a verdict of that size can stand then all those litigants who hitherto sailed on the frequented or unfrequented seas of Jurisprudence on voyages of quest for the land of the golden fleece of heavy damages quite missed the felicity of sighting it and came home poorer in pocket and consolation because of such failure. There is no such verdict can be found in the savage days of English libel law before the enactment of the Fox Libel Act. There is no such verdict can be found returned in any reported case in any court in any land since the dawn of civilization, so far as my research goes, and I have been persistent and diligent in search. Counsel point out no such verdict. The same remarles are true of the amount allowed to stand by the judgment of my brethren. There is no other record of a $50’,000 libel verdict. If even the inventive imagination of Jonathan Swift conceived of such a verdict as possible in that land of gigantic growths, yclept Brobdingnag, he made no note of it in Gulliver’s Travels. The verdict was spectacular, passionate, whimsical, and its grotesque amount earmarks it as springing from the hot bed of a welter of hatred and emotion. "When the din and dust of this hour have passed away this verdict will stand as a blot on the jurisprudence of this State.

Let us examine the records of the appellate courts of Missouri in libel and slander suits. Those cases include libels and slanders by and of the high and the low, by and of the rich and the poor, the strong and the weak, women and men. Therein damages were assessed for libels and slanders running the whole gamut of possible defamation. The schedule is instructive and fully sustains our estimate of this verdict.

*599MISSOURI CASES. ON LIBEL AND SLANDER, SHOWING CHARACTER OF CHARGE AND AMOUNT RECOYERED:

Estes v. Antrobus, 1 Mo. 197. Slander. “Thief.” Judgment for plaintiff; no amount given. Affirmed.

Anthony v. Stephens, 1 Mo. 254. Slander. “Murderer.” Judgment for plaintiff for one cent. Reversed and remanded on plaintiff’s appeal.

Watson v. Musick, 2 Mo. 29. Slander. “Plogstealer,” etc. Judgment for defendant. Reversed.

Cooper v. Marlow, 3 Mo. 188. Slander. “Forgery.” Judgment for plaintiff; no amount given. Reversed and remanded.

Adams v. Hannon, 3 Mo. 222. Slander (Plaintiff a woman.) “I [meaning defendant Hannon] stroked her [meaning plaintiff].” Judgment for plaintiff; no amount given. Reversed and remanded.

Williams v. Harrison, 3 Mo. 411. Slander. “You stole two of my hogs.” Judgment for plaintiff; no amount given. Reversed and remanded.

Dyer v. Morris, 4 Mo. 214. Slander. “She has gone down the river with two whores to a goose-horn.” Female plaintiff. Judgment for plaintiff; no amount given. Reversed and remanded.

Barnard v. Boulware, 5 Mo. 454. Slander. Words not given. Plaintiff nonsuited. Affirmed.

Hibler v. Servoss, 6 Mo. 24. Slander. “He had sworn a lie.” Judgment for defendant. Affirmed.

Moberly v. Preston, 8 Mo. 462. Slander. “She had a child” (fornication). Female plaintiff. Judgment for plaintiff for $1300. Affirmed.

Palmer v. Hunter, 8 Mo. 512. Slander. “Perjury.” Judgment for plaintiff for $946. Affirmed.

Harris v. Woody, 9 Mo. 112. Slander. “Swearing alie.” Judgment for defendant. Affirmed.

Edgar v. McCutchen, 9 Mo. 759. Slander. “Carnal knowledge of a mare;” using unprintable word. Judgment for plaintiff; no amount given. Affirmed.

*600Keemle v. Sass, 12 Mo. 199. Libel.. “This impertinent fellow withheld from ns . . . paper . . . intrusted to him for this office. ’ ’ Judgment for plaintiff for $100. Affirmed.

Sutton v. Smith, 13 Mo. 120. Slander. “Mrs. Sutton stole my corn.” Judgment for defendant. Affirmed as to finding; reversed as to costs.

Fallenstein v. Booth, 13 Mo. 127. Slander. “Stole my note. ’ ’ Judgment for plaintiff for $1000. Affirmed.

Self v. Gardner, 15 Mo. 180. Slander. “Stealing a dollar.” Judgment for plaintiff for $250. Affirmed.

Stieber v. Wensel, 19 Mo. 513. Slander. “Ye are whores.” Female plaintiff. Judgment for plaintiff; no amount given. Affirmed.

Perselly v. Bacon, 20 Mo. 330. Slander. “Swore a lie before grand jury. ’ ’ Demurrer sustained. Reversed and remanded.

Dowd v. Winters, 20 Mo. 361. Slander. “False swearing.” Plaintiff nonsuited. Reversed and remanded.

Pasley v. Kemp, 22 Mo. 409. Slander. “A rogue;” and “stealing,” etc. Verdict for plaintiff for $750. Plaintiff remitted $250. Judgment for $500. Affirmed.

Hudson v. Garner, 22 Mo. 123. Slander. “Whore. ’ ’ “Whorish mother,” — adultery with a negro. Female plaintiff. Judgment for plaintiff for $3000. Affirmed.

Street v. Bushnell, 21 Mo. 328. Slander. ‘‘Theft. ’ ’ Plaintiff nonsuited. Affirmed.

Johnson v. Dicten, 25 Mo. 580. Slander. “Stealing corn.” Judgment for plaintiff; no amount given. Reversed and remanded.

Birch v. Benton, 26 Mo. 153. "Slander. “Whipping wife; ” “ D — d sheep-tilling dog. ’ ’ Judgment for plaintiff ; no amount given. Reversed and remanded.

Speater v. McKenzie, 26 Mo. 255. Slander. “Whipped his mother.” Demurrer to petition sustained. Affirmed.

*601Atteberry v. Powell, 29 Mo. 429. Slander. “Perjury.” Judgment for plaintiff; no amount given. Reversed and remanded.

Weaver v. Hendrick, 30 Mo. 502. Slander. “Larceny.” Judgment for plaintiff for $3000. Affirmed.

Coghill v. Chandler, 33 Mo. 115. Slander. “Larceny.” Judgment for plaintiff; no amount given. Affirmed.

Curry v. Collins, 37 Mo. 324. Slander. “He is a bushwhacker.” Demurrer to petition sustained. Affirmed.

Pennington v. Meeks, 46 Mo. 217. Slander. “Stole my hog.” Judgment for plaintiff; no amount given. Affirmed.

Atwinger v. Fellner, 46 Mo. 276. Slander. Words not given. Judgment for plaintiff; no amount given. Affirmed.

Bundy v. Hart, 46 Mo. 460. Slander. “Burning a barn.” Judgment for plaintiff; no amount given. Reversed and remanded.

Buckley v. Knapp, 48 Mo. 152. Libel. “Lack of chastity.” Female, plaintiff. Judgment for plaintiff for $5000. Affirmed.

Barbee v. Hereford, 48 Mo. 323. Slander. “Perjury.” “Swore to a d — n lie.” Judgment for plaintiff ; no amount given. Affirmed.

Price v. Whitely, 50 Mo. 439. Libel. “An imp of the devil; ” “ Cowardly snail. ’ ’ Judgment for plain tiff; no amount given. Affirmed.

Elfrank v. Seiler, 54 Mo. 134. Slander. Words in Dutch, charging Elfranks (woman plaintiff) as follows: “Elfrank! that mean people; whoring folks!” Non-suit. Reversed and remanded.

Polston v. See, 54 Mo. 291. Slander. ‘ ‘ Stealing. ’ ’ Judgment for plaintiff for $500. Affirmed.

Clements v. Maloney, 55 Mo. 352. Slander. “Forgery.” Judgment for plaintiff for $200. Affirmed.

*602Hall v. Adkins, 59 Mo. 144. Slander. “Larceny.” Judgment for plaintiff; no amount given. Eeversed and remanded.

Rammell v. Otis, 60 Mo. 365. Slander. ‘ ‘Larceny, ’ ’ and “keeping false books.” Judgment for plaintiff; no amount given. Eeversed and remanded.

Johnson v. St. Louis Dispatch Co., 65 Mo. 539. Libel. ‘ ‘ Grand Larceny. ’ ’ Judgment for plaintiff; no amount given. Affirmed.

Boogher v. Knapp, 76 Mo. 457. Libel. ‘ ‘ Convicted and sentence to prison.” Judgment for plaintiff; no amount given. Affirmed.

Coe v. Griggs, 76 Mo. 619. Slander. “Stealing;” “D — d thieving scoundrel.” Judgment for defendant. Affirmed.

Landis v. Campbell, 79 Mo. 433. Libel. “Excommunication;” “False and malicious statements.” Judgment for plaintiff; no amount given. Eeversed.

Christal v. Craig, 80 Mo. 367. Slander. “Perjury, larceny, adultery.” Female plaintiff. Judgment for plaintiff for $500. Eeversed and remanded.

Legg v. Dunleavy, 80 Mo. 558. Libel. ‘ ‘ Dishonesty in business.” Judgment for defendant. Affirmed.

Lewis v. McDaniel, 82 Mo. 577. Slander. “Biggest thief on this creek;” “hog stealing.” Judgment for plaintiff for one cent. Affirmed.

Trimble v. Foster, 87 Mo. 49. Slander. “Thief . . . a d — n thief.” Judgment for defendant. Eeversed.

Noeninger v. Vogt, 88 Mo. 589. Slander. “Defrauder, incendiary and murderer.” Judgment for defendant on demurrer. Reversed and remanded.

Caruth v. Richeson, 96 Mo. 186. Libel. “Corruption in office.” Judgment for defendant. Affirmed.

Boogher v. Knapp, 97 Mo. 122. Libel. ‘ ‘ Convicted of conspiracy and libel.” Judgment for defendant. Affirmed.

*603Edwards v. Geo. Knapp & Co., 97 Mo. 432. Libel. ‘ ‘ Sexual intercourse with her brother. ’ ’ Female plaintiff. Judgment for plaintiff for $5000. Reversed and remanded.

Hyde v. McCabe, 100 Mo. 412. Libel. “False swearing.” Judgment for defendant on demurrer. Reversed and remanded.

Powell v. Crawford, 107 Mo. 595. Slander. “Larceny. ’ ’ Plaintiff nonsuited. Affirmed.

McGinnis v. Geo. Knapp & Co., 109 Mo. 131. Libel. ‘ ‘ Bribery. ’ ’ Demurrer to petition sustained. Reversed and remanded.

Mitchell v. Bradstreet Co., 116 Mo. 226. Libel. “Assigned” — said of a commercial firm. Judgment for plaintiff for $5500. Affirmed.

Callahan v. Ingram, 122 Mo. 355. Slander. ‘ ‘ Downright thief.” Judgment for plaintiff for $5500. Reversed and remanded on instructions.

Fulkerson v. Murdock, 123 Mo. 292. Slander. Words not disclosed. Judgment for plaintiff for $1350. Affirmed.

Arnold v. Jewett, 125 Mo. 241. Libel. “Falsely representing defendants.” Judgment for defendant. Affirmed.

St. James Military Academy v. Gaiser, 125 Mo. 517. Libel. “Teachers dancing,” etc. Defendant’s objection to the introduction of testimony sustained. Plaintiff nonsuited. Reversed and remanded.

Nicholson v. Rogers, 129 Mo. 136. Slander. “Keeping a whorehouse. ’ ’ Judgment for plaintiff; no amount given. Reversed and remanded on instructions.

Hancock v. Blackwell, 139 Mo. 440. Slander. “Larceny from a dwelling;’ “adventuress and destined to become noted crook.” Female plaintiff. Judgment for plaintiff for $3500. Reversed and remanded on improper evidence.

*604Sullivan v. Com. Co., 152 Mo. 268. Libel. “Afraid to deal with him, ’ ’ etc. Demurrer to evidence sustained —nonsuit. Reversed and remanded.

McCloskey v. Pulitzer Pub. Co., 152 Mo. 339. Libel. “Mistreatment of wife,” etc. Judgment for defendant. Reversed and remanded on instructions.

Taylor v. Pullen, 152 Mo. 434. Slander. Words not given. Judgment for plaintiff for $801. Affirmed.

Heller v. Pulitzer Pub. Co., 153 Mo. 205. Libel. “Embezzler;” “Shipped out.” Court instructed jury to find for plaintiff. Judgment for plaintiff; no amount given. Reversed and remanded.

Bray v. Callihan, 155 Mo. 43. Slander. “A villainous reptile” — “not fit to be in a decent community. He is not fit to go with deeent girls,” etc. Objection to introduction of evidence sustained; nonsuit. Reversed and remanded.

St. L. Clo. Co. v. Hail D. G. Co., 156 Mo. 393. Libel. “Fake advertisement.” Judgment for defendant. Affirmed.

Finley v. Steele, 159 Mo. 299. Libel. “Tyrannical, abusive and indecent.” Young lady school teacher, plaintiff. Judgment for defendant on mandatory instruction. Affirmed.

Stark v. Geo. Knapp & Co., 160 Mo. 529. Libel. “Lobbyist — corruption, etc.” Judgment for defendant. Affirmed.

Jones v. Brownlee, 161 Mo. 258. Libel. “Adultery.” Female plaintiff. Judgment for defendant. Affirmed.

McCloskey v. Pulitzer Pub. Co., 163 Mo. 22. Libel. Same as 152 Mo. 339, supra. Judgment for plaintiff for $6558. Motion for new trial sustained because of excessive verdict. Affirmed.

Wagner v. Scott, 164 Mo. 289. Libel. “Charges affecting plaintiff’s professional and personal standing.” Nonsuit on mandatory instruction. Reversed and remanded.

*605Jones v. Murray, 167 Mo. 25. Libel. * ‘ Murderer; ’ ’ “Robber.” Judgment for defendant. Reversed and remanded.

Weltmer v. Bishop, 171 Mo. 110. Libel. “Misc.able charlatans,” etc. Judgment for plaintiff for $750. Reversed.

Minter v. Bradstreet Co., 174 Mo. 444. . Libel. “Attack on credit and responsibility.” Judgment for plaintiff for $30,000. New trial granted, because excessive, etc. Judgment for plaintiff for $27,000 on second trial. Affirmed.

Carpenter v. Hamilton, 185 Mo. 603. Slander. “Stealing paint.” Judgment for plaintiff' for $800. Affirmed.

Ukman v. Daily Record Co., 189 Mo. 378. Libel. “Transfer of stock of cigars for $1.” Plaintiff non-suited. Affirmed.

Julian v. Kansas City Star, 209 Mo. 35. Libel. “Did well in a legislative way,” etc. Affirmed for $15,000 damages.

Meriwether v. Knapp & Co., 211 Mo. 199. Libel. “Hypocrite, tricks, falsehood, political associate of boodlers,” etc. Judgment for $10,000. Reversed and remanded.

Brown v. Globe Printing Co., 213 Mo. 611. Libel. “Perjury,” etc. Judgment for $12,000. Affirmed.

Brown v. Knapp & Co., 213 Mo. 655. Libel. “Perjury,” etc. Judgment for $10,000. Affirmed.

Flowers v. Smith, 214 Mo. 98. Libel. Many charges reflecting on official integrity. Judgment for $6000. Reversed and remanded.

Branch v. Knapp & Co., 222 Mo. 580. Libel. “Bribery,” etc. Judgment for $10,000. ' Reversed.

Meriwether v. Knapp & Co., 224 Mo. 617, same as 211 Mo. 199. Libel. Judgment for plaintiff for $6000. Affirmed.

*606MISSOURI APPEAL CASES ON LIBEL AND SLANDER.

Barber v. St. L. Dis. Co., 3 Mo. App. 377. Libel. “Adultery.” Female plaintiff. Verdict for plaintiff for $3500. Remittitur for $1000. Judgment for plaintiff for $2500. Reversed and remanded for instructions.

Blackwell v. Smith, 8 Mo. App. 43. Slander. “Thief,” etc. Judgment for defendant. Affirmed.

See: Memorandum cases in 8 Mo. App., pp. 561, 591.

Salvatelli v. Ghio, 9 Mo. App. 155. Libel. Attaching blame to Priest in stealing, etc. Judgment for defendant. Affirmed.

Hawkins v. Globe Printing Co., 10 Mo. App. 174. Libel. “Adultery.” Female plaintiff. Judgment for plaintiff for $1000. Affirmed.

Meyrose v. Adams, 12 Mo. App. 329. Libel of title. Judgment for defendant. Reversed and remanded.

Hillebrand v. Dreinhoefer, 13 Mo. App. 586. (Appendix; Mem. Case, no amount given.) Affirmed. See also: Appendix, 14 Mo. App. 601.

Hermann v. Bradstreet Co., 19 Mo. App. 227. Libel. “In the hands of the sheriff.” Judgment for plaintiff for $600. Reversed and remanded on pleadings.

Lanius v. Druggist Pub. Co., 20 Mo. App. 12. Libel. Charging plaintiff with traveling through country and representing defendant, etc. Judgment for plaintiff for $2000. Affirmed.

Mix v. McCoy, 22 Mo. App. 488. .Slander. “Larceny of hogs.” Judgment for plaintiff for $500'. Affirmed.

Wood v. Hilbish, 23 Mo. App. 389. Slander. “Stealing.” Judgment for plaintiff; no amount given. Reversed and remanded.

*607Casey v. Aubuchon, 25 Mo. App. 91. Slander. “Larceny.” Judgment for plaintiff for $500. Affirmed.

McMurry v. Martin, 26 Mo. App. 437. Libel. (See letter on pp. 441-2 for grossly indecent and scandalous charges made.) Judgment for plaintiff; no amount given. Reversed and remanded on instructions.

Lally v. Cantwell, 30 Mo. App. 524. Slander. “False statements, causing a discharge from profitable employment.” Demurrer to petition sustained. Reversed and remanded.

Elder v. Oliver, 30 Mo. App. 575. Slander. “Larceny.” Judgment for plaintiff for $75. Affirmed.

Boyce v. Aubuchon, 34 Mo. App. 315. Slander. “Burglary and larceny.” Judgment for plaintiff; no amount given. Reversed and remanded.

Morgan v. Rice, 35 Mo. App. 591. Slander. “Thief.” Judgment for plaintiff for $500'. Affirmed.

Houston v. Woolley, 37 Mo. App. 15. Libel (Attachment for). “Larceny,” and other crimes. Special judgment of $500 against property. Special judgment made general and affirmed.

Baldwin v. Walser, 41 Mo. App. 243. Libel. “Notice of dissolution of partnership.” Demurrer to petition sustained. Affirmed.

Wagner v. Printing Co., 45 Mo. App. 6. Libel. “Embezzlement.” Judgment for plaintiff for $2000. Affirmed.

Baldwin v. Fries, 46 Mo. App. 288. Slander. “Thief.” Judgment for plaintiff; no amount given. Affirmed.

Nelson v. Wallace, 48 Mo. App. 193. Slander. Husband and wife, plaintiffs. Charging wife with “Fornication, while single.” Judgment for plaintiff for $1800. Reversed and remanded on instruction.

Manget v. O’Neill, 51 Mo. App. 35. Libel. “Fakir,” “Confidence man,” etc. Judgment for plaintiff for $600. Affirmed.

*608Walter v. Hoeffner, 51 Mo. App. 46. Slander. Female plaintiff. ‘ ‘ Slut, bitch and whore. ’ ’ Judgment for plaintiff for $2500'. Reversed and remanded on admission of evidence.

Unterberger v. Scharff, 51 Mo. App. 102. Slander. “Thief.” Verdict for plaintiff for $1500. Renuttitur, $750. Judgment for $750. Reversed and remanded on instructions.

Fulkerson v. Murdock, 53 Mo. App. 151. Slander. “Stealing.” Judgment for plaintiff for $1350'. Reversed and remanded on account of error in admission of evidence. Certified to the Supreme Court. Judgment of the circuit court affirmed in Supreme Court. (123 Mo. 292.)

Walker v. Hoeffner, 54 Mo. App. 554. Slander. Same as 51 Mo. App. 46. Judgment for plaintiff for $500 ($250 on each count). Affirmed as to first count. Remittitur ordered for $250.

Bridgman v. Armer, 57, Mo. App. 528. Slander. “Thief.” Judgment for plaintiff for $400. Reversed and remanded on account of refused instructions.

Liske v. Stevenson, 58 Mo. App. 220. Slander. “Stealing.” Demurrer to evidence sustained. Non-suit. Reversed, and remanded on plaintiff’s appeal.

Spurlock v. Lombard Inv. Co., 59 Mo. App. 225. Libel. Advertising a “Trustee’s Sale.” Judgment for plaintiff for $700. Reversed.

Crecelius v. Bierman, 59 Mo. App. 513. Slander. ‘ ‘ Forgery. ’ ’ Judgment for plaintiff for $500. Reversed and remanded.

Schmidt v. Bauer, 60 Mo. App. 212. Slander. “Defamation” .of female plaintiff. Judgment for plaintiff for $1500. Reversed and remanded.

Lewis v. Humphries, 64 Mo. App. 466. Slander. ‘ ‘ Larceny. ’ ’ Judgment for plaintiff; no amount given. Reversed and remanded.

*609Lamberson v. Long, 66 Mo. App. 253. Slander. “Larceny.” Judgment for plaintiff for $100. Affirmed.

Crecelius v. Bierman, 68 Mo. App. 34. Slander. ‘ ‘ Forgery. ’ ’ (Supra, 59 Mo. App. 521.) Judgment for plaintiff; no amount given. Affirmed.

Ferguson v. Chronicle Pub. Co., 72 Mo. App. 462. Libel. “Gambling,” “Craps.” Judgment for plaintiff for $300. Affirmed.

Linville v. Rhoades, 73 Mo. App. 217. Slander of title. Judgment for plaintiff; no amount given. Affirmed.

McAtee v. Valandingham, 75 Mo. App. 45. Slander. Female plaintiff charged with borrowing and keeping an obscene book for months. Judgment for plaintiff for $500. Reversed and remanded on instruction.

Arnold v. Sayings Co., 76 Mo. App. 159. Libel. “Larceny.” Judgment for plaintiff for $1500'. Affirmed.

Michael v. Matheis, 77 Mo. App. 556. Slander. Female plaintiff. “Common whore.” Judgment for plaintiff for $325. Affirmed.

Baldwin v. Boulware, 79 Mo. App. 5. Slander. “Arson.” Judgment for plaintiff; no amount given. Affirmed.

Alderson v. Auerswald, 80 Mo. App. 370. Slander. “Perjury.” Judgment for plaintiff for $200. Reversed.

Hall v. Jennings, 87 Mo. App. 627. Slander. “Stealing.” Judgment for plaintiff for $2000. Affirmed.

Hess v. Gansz, 90 Mo. App. 439. Libel. “Defamation of character. ’ ’ Judgment for plaintiff; no amount given. Reversed and remanded.

Butts v. Long, 94 Mo. App. 687. Slander. ‘ ‘ Slander of title.” Judgment for defendant on demurrer. Affirmed.

*610Krup v. Corley, 95 Mo. App. 640. Slander. “False swearing, thief, forger.” Judgment for plaintiff for $500. Beversed and remanded on admission of testimony.

Weber v. Lane, 99 Mo. App. 69. Libel. “Disorderly house.” Judgment for plaintiff for $500. Be-versed.

Fish v. S. L. Ptg. & Pub. Co., 102 Mo. App. 6. Libel. “Bogus Beformer,” etc. Judgment for plaintiff for $500. Beversed and remanded.

Friedman v. Pulitzer Co., 102 Mo. App. 683. Libel. “Forgery,” etc. Verdict for plaintiff for $2800 — new trial granted. Affirmed.

Dunlevy v. Wolferman, 106 Mo. App. 46. Slander. Female plaintiff accused of carrying meat out of store. Verdict for $875. Beduced, and judgment for plaintiff for $500. Affirmed.

Butts v. Long, 106 Mo. App. 313. Slander. “Slander of title.” Judgment for defendants. Affirmed.

Kersting v. White, 107 Mo. App. 265. Slander. Female plaintiff. ‘ ‘ Fornication. ’ ’ Judgment for plaintiff; no amount given. Beversed and remanded.

Duncan v. Williams, 107 Mo. App. 539. Libel. Female plaintiff. “Convicted and fined $1.” Judgment for defendant. Affirmed.

Midland Pub. Co. v. Trade Journal Co., 108 Mo. App. 223. Libel. “Fake.” Affirmed as to first count ($500); reversed as to second.

Israel v. Israel, 109 Mo. App. 366. Slander. Female plaintiff. “Whore and s — n of a b — h.” Judgment for plaintiff for $1270. Affirmed.

Brown v. Wintsch, 110 Mo. App. 264. Slander. Female plaintiff. “Fornication,” etc. Judgment for plaintiff; no amount given. Affirmed.

Farley v. Pub. Co., 113 Mo. App. 216. Libel. ‘ ‘ Dishonest conduct. ’ ’ Judgment for plaintiff for $400. Affirmed.

*611Grimes v. Thorp, 113 Mo. App. 652. Slander. “Stealing corn.” Judgment for plaintiff for $2000. Eeversed and remanded on instructions.

Yager v. Bruce, 116 Mo. App. 473. Slander. “Thief.” Judgment for plaintiff for $1000'. Eeversed and remanded. Improper evidence. Kenworthy v. Journal Co., 117 Mo. App. 327. Libel. “Perjury.” Judgment for plaintiff; no amount given. Eeversed and remanded.

Overton v. White, 117 Mo. App. 576. Slander. “Fornication.” (2d appeal of 107 Mo. App. 265.) Judgment for plaintiff for $2000. Affirmed.

Meriwether v. Knapp & Co., 120 Mo. App. 354. Libel. “Denouncing a politician as a criminal; connected with Ed. Butler.” Verdict for plaintiff for $5000. Eemittitur. Judgment for $4500. Affirmed.

Dust Sprayer Mfg. Co. v. Western Fruit Grower, 126 Mo. App. 139. Libel. (Tendency of whole article libelous — false representation.) Demurrer sustained. Affirmed.

Maginn v. Schmick, 127 Mo. App. 411. Libel of title. Judgment for plaintiff; no amount. Affirmed.

Payton v. Clothing Co., 136 Mo. App. 577. Slander. “Dirty thief.” Judgment for plaintiff; no amount given. Affirmed.

If my figures are correct the total amount of damages assessed in libel and slander suits in this State in the ninety years of its existence, in cases that were affirmed .as well as those reversed, ascertainable from the printed volumes of appellate courts, is $184,576.02'. Mr. Cook recovered within $34,578.02 of as much as all the others put together. Are we to be told that such a verdict does not irresistibly bespeak passion and prejudice? The amount of damages left standing is less than one-third and more than one-fourth of the total damages assessed in all cases of libel or slander that ever reached an appellate court in Missouri. Doubtless the defendant can suffer the loss and still *612print its newspaper. But I most respectfully doubt whether the cause of Jurisprudence can well suffer the loss of judicially estimating the damages of this plaintiff at the sum of $50,000 — of judicially determining that $100,000 of excess in a verdict does not show prejudice and passion and of judicially cutting away two-thirds of a verdict and leaving one-third standing, with no rule to guide the court but a guess, and power to enforce the guess.

It was said of Mr. Justice B uller that in writing down the reasons of the judgments he delivered he looked as well before as behind in order to keep within reasoned precedents and avoid making bad ones. I have been told that it was once said of soothsayers in very olden times that two of them could not meet in the highway without smiling at each other. If $10.0,000 of excess in a verdict be not indubitable evidence of prejudice and passion how can we hereafter (without smiling at each other) ever-hold in any case of tort that any amount of excess in any verdict indicates prejudice and passion? Nay more, as rules of law are not established for one case or for one day but for all time and all cases of like character, therefore it seems to me that in this case we have struck down the recognized rule of reason and law hitherto guiding us in deducing prejudice, and passion from such an inflamed excess of damages as makes a just man instinctively cry out against it. Sure am I that no exigency of the law either requires this verdict to stand or a new and anxious precedent to be established. Therefore, I respectfully dissent from the conclusions reached by my esteemed brethren.

Graves, J., concurs in these views and files a concurring opinion.

*613SEPARATE DISSENTING OPINION.

GRAVES, J.

Concurring fully in what is said by Lamm, J., in Ms dissenting opinion, I wish by way of emphasis to add a few thoughts upon the results of this case upon future jurisprudence in this State. The opinion, after reviewing several late cases, in my judgment foreign to the real issues in this case, says:

“The rationale of these late cases is that the fact that a verdict is too large does not itself indicate that the jury was actuated by passion or prejudice where there ivas no error in the admission or rejection of testimony or in the instructions of the court and no misconduct on the part of the jury was shown and the evidence established that the plaintiff w.as entitled to a substantial verdict, and that in such case .if the plaintiff would consent to a remittitur of a part of his verdict, the defendant could not complain.”

If this be the law, then this court has erred a great many times in reversing and remanding cases on the ground that the verdict indicated passion and prejudice upon the part of the jury. The most recent instance is that of Partello v. Railroad, 217 Mo. 645. This case, which in my judgment announces the rule of law in this State from the earliest, date up to the present case, comes from our learned brothers of Division Two, all of whom concur in the present opinion. In the Partello case, there was no error in the admission or rejection of evidence; there was no error in the giving or refusing of instructions; there was no proof of the misconduct of the jury. In other words, every element of the new doctrine announced in the present case, was open and obvious in the Partello case, yet our learned brethren in that case said that the verdict itself was evidence of passion and prejudice and reversed and remanded the cause without a suggestion of remittitur. In so doing, they followed every prior precedent in this State, and were right, bnt the announced doctrine hereinabove *614quoted from the present opinion neither comports with the Partello case nor any of its predecessors. The rulings in the two cases are diametrically opposed to each other, yet we find no word overruling the Partello case. Why, when there was no error as to the evidence, no error as to instructions, no evidence as to misconduct of the jury, and evidence that plaintiff was entitled to a verdict in some substantial sum, was Mrs. Partello remitted to another trial of her cause, without privilege of consenting to a remittitur, as given in the case at bar?

But to the real issue in the present case. There is, as in the Partello case, often no means of detecting the passion and prejudice of a trial jury, except by the amount of the verdict. It is no evidence-that there was no passion and prejudice on the part of the jury because the record discloses that the trial court did its duty with reference to the admission of the testimony and the giving of the law. To my mind, if a painstaking trial judge has excluded from the jury all improper evidence and then given to them proper instructions, and yet an unconscionable verdict is returned, that fact alone is the strongest evidence of passion and prejudice. If the court admitted improper evidence and an excessive verdict resulted we might attribute this to error of the court, but if the court did its duty, then we can trace a grossly'excessive verdict to no other source than to the passion and prejudice of the jury. Generally speaking passion and prejudice of a jury cannot be shown other than through the verdict. Jurors imbued with passion and prejudice, do not proclaim that fact from the house-tops, but it is locked up within their breasts, until it is brought to the public gaze through the verdict. So that instead of urging that there is absence of passion and prejudice by reason of absence of error in the course of the trial, the exact opposite should be said. In other words a grossly excessive verdict based upon a record without *615error upon the part of the trial court is the strongest evidence of passion and prejudice upon the part of the jury. That the verdict in this case was grossly excessive, my brothers by their conclusions have announced. That it shocked their conscience is bespoken by their opinion — not in words, but in the minimized judgment.

I repeat, what I have said before, that when the judges of a court are so shocked by the enormity of a verdict, that they feel that they should not permit it to stand, without cutting it down one-half, or in this instance cutting it down two-thirds, such verdicts should be declared to be the result of passion and prejudice and a new trial unconditionally awarded.

Passion and prejudice, if such exists, vitiates the whole verdict, and not a part of it. This doctrine has so often been announced by the courts that citation of authority is useless. In fact, my brothers in effect concede this in the opinion, by announcing the new rule, quoted supra, for ascertaining whether or not there was passion or prejudice.

Under the holding in the present case and others to be mentioned, reversing and remanding a cause for passion and prejudice is a lost doctrine in Missouri. Whilst in the present case it is urged that the absence of error in the admission of testimony is evidence of no passion and prejudice, yet we have met all situations in tort cases-in this and the case of Moore v. Transit Company, 226 Mo. 689 (handed down at this sitting), should there be error in the admission of evidence. In the Moore case it is conceded that evidence was improperly admitted, and further conceded that the verdict was so grossly excessive as to require a remittitur of one-half of the amount. In other words, where we find that there is no error upon the part of the trial court, there is no sufficient evidence of passion and prejudice to disturb the whole verdict, but if on the other hand we chance to find that the court did commit *616error in the admission of evidence, we will say that sneh evidence, improperly admitted, will he weighed hy the court, its effect on the jury analyzed, and an allowance will be made to defendant for the excess of such verdict superinduced by the improper evidence. Taking the two cases, reversing and remanding a cause on account of passion and prejudice is a lost art in Missouri.

Personally, I think that the doctrine of remittitur in tort cases is without foundation in law or logic, but being the established doctrine of the court, I bow to it, but in so doing I think it well to take our bearings upon the vital question as to what shall be sufficient evidence of passion and prejudice to demand at our hands the reversal of a case for retrial before an impartial jury.

To my mind the verdict in this case is so grossly excessive as to indicate passion and prejudice upon the part of the jury. If not in this case, I can hardly conceive of one wherein the doctrine would obtain.. The action of my associates in reducing a $150,000 verdict to $50,000, proclaims the grossness' of the verdict. Even-handed justice demands a new trial in this case. .The passion wrapped up in the excessiveness of this .verdict cannot be eradicated by the paring knife of a remittitur. It permeates the whole verdict and the whole judgment should be set aside and the cause retried.