McCloskey v. The Pulitzer Publishing Company
| Decision Date | 21 May 1901 |
| Parties | McCLOSKEY, Appellant, v. THE PULITZER PUBLISHING COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.
Affirmed.
Charles & Lackey for appellant.
(1) That the verdict is excessive is not one of the grounds for a new trial found in defendant's motion. It was, however argued orally and in defendant's brief, almost to the exclusion of any other point, and the court, of its own motion, sustained the same, but at a subsequent term. The trial court may, during the same term the verdict is rendered, set it aside for any valid reason, whether included in the motion for a new trial or not, the whole matter being still in the breast of the court. Smith v. Perkins, 124 Mo. 53. But after the term, the court has no jurisdiction or authority to pass on any questions except such as may have been carried over to a subsequent term by motion for a new trial. State ex rel. v. Adams, 84 Mo. 316; Baughman v. Nat. Waterworks Co., 58 Mo.App. 580; Clement v. Barnes, 6 S. Dak. 485; 1 Hayne on New Trials, sec. 10, p. 50. (2) The verdict for $ 6,558 was not excessive; defendant's motion for a new trial should have been overruled; and plaintiff should not have been ordered to remit $ 3,000. Buckley v. Knapp, 48 Mo. 152; Courtney v. Blackwell, 150 Mo. 245; Wilson v Fitch, 41 Cal. 363; Mitchell v. Bradstreet, 116 Mo. 226; Callahan v. Ingram, 122 Mo. 355; MacLean v. Scripps, 52 Mich. 214; Malloy v. Bennett, 15 F. 376; Bryce v. Rusden, 2 Times, L. R. 435; Woodgate v. Ridout, 4 F. & F. 202; Times Pub. Co. v. Carlisle, 94 F. 762; Young v. Fox, 49 N.Y.S. 634; s. c., 26 App.Div. N. Y. 261; Belt v. Lawes, 53 L. J. R. Q. B. 249; s. c., 12 Q. B. Div. 356; Fry v. Bennett, 4 Duer, 247; s. c., 28 N.Y. 324; Gibson v. Cincinnati Enquirer, 2 Flippin (U.S.), 121; Townshend on Slander and Libel (4 Ed.), sec. 293, p. 524 and note 5; Malloy v. Bennett, 15 F. 376; Wilson v. Fitch, 41 Cal. 386; 1 Graham on New Trials, p. 426; Hollenbeck v. Railroad, 141 Mo. 112. (3) It is peculiarly within the province of the jury to determine the actual damages sustained in a libel case, and therefore to fix the amount of compensatory damages. (a) No actual pecuniary damage need be proved. Price v. Whiteley, 50 Mo. 439; King v. Sassman (Tex.) 54 S.W. 305; Arnold v. Sayings Co., 76 Mo.App. 184; McCloskey v. Pulitzer Co., 152 Mo. 347. (b) The jury are the sole judges of the amount of punitive damages to be allowed. Times Pub. Co. v. Carlisle, 94 F. 762; Nicholson v. Rogers, 129 Mo. 141, 142. (c) When the falseness of the libel is proven it is generally sufficient to warrant the jury in giving exemplary damages. Bergman v. Jones, 94 N.Y. 51, cited in Callahan v. Ingram, 122 Mo. 372; Ferguson v. Chronicle Pub. Co., 72 Mo.App. 467. (d) Refusal to retract after request to do so is good reason to increase the amount of damages. Arnold v. Sayings Co., 76 Mo.App. 184; Times Pub. Co. v. Carlisle, 94 F. 762; and cases, supra.
Frederick N. Judson and J. Clarence Taussig for respondent.
(1) It is the peculiar and special duty of trial courts to grant new trials where the verdict is arbitrary, or manifestly and clearly wrong, or where it appears that the verdict was the result of passion, prejudice or misconduct on the part of the jury. Chouquette v. Railroad, 152 Mo. 257; Burdict v. Railroad, 123 Mo. 221; Reid v. Ins. Co., 58 Mo. 421; Price v. Evans, 49 Mo. 396; Lockwood v. Ins. Co., 47 Mo. 50; Woolfolk v. Tate, 25 Mo. 597. (2) The granting of a new trial rests peculiarly within the province of the trial court, in the determination of which it has a large discretion, and the appellate court will not interfere with the exercise of that discretion unless it plainly appears that it has been arbitrarily or unreasonably exercised. Chouquette v. Railroad, supra; Lee v. Knapp & Co., 137 Mo. 385; Parker v. Cassingham, 130 Mo. 348; Bank v. Wood, 124 Mo. 72; Kuenzel v. Stevens, 155 Mo. 280. And it has been held that the appellate court will review the trial court's discretion more freely, when that court has refused, than when it has granted a new trial. Enson v. Smith, 57 Mo.App. 584; Powell v. Railroad, 59 Mo.App. 335. (3) The discretion of the trial court will not be interfered with solely for the reason that the appellate court might in the premises have arrived at a different result. To authorize such a step, it should plainly appear that injustice has been done; that the lower court has acted arbitrarily. Faber v. Bruner, 13 Mo. 541; Griffin v. Veil, 56 Mo. 310; Eidemiller v. Kump, 61 Mo. 340. (4) The rule that a verdict will not be disturbed where the evidence is conflicting, applies only to appellate courts which have no opportunity of seeing the witnesses and hearing the evidence. It has no application to trial courts, whose imperative duty it is to review the evidence and set aside the verdict if not satisfied with it. McKay v. Underwood, 47 Mo. 185; Reed v. Ins. Co., 58 Mo. 421; Bank v. Armstrong, 92 Mo. 265; State v. Young, 119 Mo. 495; Lawson v. Mills, 130 Mo. 170; Kuenzel v. Stevens, 155 Mo. 280. (5) The award by a jury of excessive or inadequate damages as a ground for a new trial is but a branch of the more general ground that the verdict is contrary to the evidence, for it is evident that if the damages be either excessive or too small, the verdict must be contrary to the evidence. 14 Am. and Eng. Ency. of Pleading and Practice, 755; 4 Minor's Inst., 757; Bennett v. Hobro, 72 Cal. 178; De Brutz v. Jessup, 54 Cal. 118. (6) The trial court should not show undue delicacy and restraint in the exercise of its power to grant a new trial; for a refusal to grant a new trial would deprive defendant of all remedy, for an appellate court would defer to the opinion of the trial judge. Burnish v. Railroad, 102 Mo. 438; Coal & Mining Co. v. Stoop, 56 Kan. 426; Fornice v. Casassa, 101 Cal. 411; Dewey v. Railroad, 31 Iowa 373. See Franklin v. Fisher, 51 Mo.App. 345, for an extreme illustration of the injustice which may result from the refusal of the trial court to do its duty in granting a new trial. (7) That the verdict ($ 4,500 compensatory, and $ 2,058 punitive damages), was grossly excessive, is clearly illustrated by the rulings of different courts, in libel and slander cases, setting aside verdicts as excessive. Haight v. Hoyt, 50 Conn. 583; Peterson v. Tel. Co., 65 Minn. 18; Turton v. N. Y. Recorder, 3 Misc. (N. Y.), 314; affirmed 144 N.Y. 144; Holmes v. Jones, 3 N.Y.S. 156; Davey v. Davey, 50 N.Y.S. 161; Libbey v. Towle, 90 Me. 262; Cummings v. Line, 18 N.Y.S. 469; affirmed 138 N.Y. 675; Holmes v. Holmes, 64 Ill. 294; Freeman v. Tinsley, 50 Ill. 498; Shoaff v. Funk, 73 Ill.App. 550; affirmed 182 Ill. 224; White v. Newcomb, 49 N.Y.S. 704; Peterson v. Tel. Co. (Minn.), 77 N.W. 985; Pratt v. Pioneer Press Co., 30 Minn. 41; Nelson v. Wallace, 48 Mo.App. 193; McHee v. Baumbartner (Mich.), 80 N.W. 21; Sherwood v. Kyle (Cal.), 58 P. 270; Simpson v. Pitman, 13 Ohio 365; Kern v. Bridwell, 119 Ind. 226; Drum v. Gessnum (Kan.), 49 P. 78; Smith v. Times Co., 4 Pa. Dist. Rep. 399; reversed 178 Pa. St. 481; Nunally v. Taliafero, 82 Tex. 286; Henry v. Moberly (Ind.), 51 N.E. 497; Crandle v. Buell, 6 Ohio 67; Newell on Slander and Libel (2 Ed.), p. 912. Where fifty-six verdicts are set out, of which only two larger than in the case at bar were sustained. Callahan v. Ingram, 122 Mo. 355; Times Publishing Co. v. Carlisle, 94 F. 762; Mitchell v. Bradstreet, 116 Mo. 226; Buckley v. Knapp, 48 Mo. 152; Courtney v. Blackwell, 150 Mo. 285, compared to same case under title of Hancock v. Blackwell, 139 Mo. 440.
This is an appeal from an order of the trial court setting aside a verdict and judgment in favor of plaintiff for $ 6,558; $ 4,500 compensatory and $ 2,058 punitive damages.
The case was before this court at the October term, 1899, and a judgment in favor of defendant was reversed and the cause remanded, on the ground that the trial court erred in refusing to give an instruction defining libel in accordance with the statute. The case will be found reported in 152 Mo. 339, 53 S.W. 1087.
The facts disclosed upon the last trial were substantially the same as upon the first, about the only difference being that plaintiff testified in his own behalf on the last trial as to his family differences, while his wife, who had in the meantime been divorced and thereby made a competent witness, testified in behalf of defendant, as did also the two sons of plaintiff.
The evidence of defendant showed that Mrs. McCloskey, the wife of the plaintiff, having seen the article in the Post-Dispatch entitled, "A Question of Finance," was desirous that the paper should publish her side of the controversy between her husband and herself. Thereupon, accompanied by her daughter, she called at the office of the Post-Dispatch, and in the presence of her daughter, told to the reporter that which was credited to her in the alleged libelous article. Miss Annie McCloskey, the daughter, testified that the interview with her mother published in the article complained of was substantially as Mrs. McCloskey had given it to the reporter.
The evidence shows that the article, so far as it related to the pending of a divorce suit and the state of feeling between the husband and wife, was true.
As to the adequacy of the support of his wife and seven children, the only evidence for the plaintiff was his own testimony; while he was directly contradicted by four witnesses, his two sons, his daughter and his wife.
The plaintiff was at the head of a large establishment, the St Louis Carbonating Company, and worth about $ 100,000, yet, according to the evidence, his wife was...
To continue reading
Request your trial