Cattell v. Dispatch Publ'g Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 356
• Parties: CATTELL, Appellant, v. THE DISPATCH PUBLISHING COMPANY.
• Court: Missouri Supreme Court

88 Mo. 356

CATTELL, Appellant,

v.THE DISPATCH PUBLISHING COMPANY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

Brown & Hamm for appellant.

(1) The court erred in withdrawing an instruction from the jurors after they had retired to deliberate on their verdict. Thompson on Charging the Jury, p. 131. (2) The court had no right whatever to direct the jurors as to which party they should find for, and when the court suggested to the jury that their verdict should be, “We, the jury, find for the defendant,” it was error, and tended to prejudice the jury against the plaintiff, and in favor of the defendant. Thompson on Charging the Jury, sec. 54; Proffat on Jury Trials, sec. 457. If the court was dissatisfied with the verdict as rendered by the jury, it was the duty of the judge to either discharge the jury, or send them back for further deliberation. (3) The verdict is utterly senseless and outside the province of the jury. Whether the plaintiff had a cause of action is a question of law and not of fact; and the court had already ruled that there was a cause of action. Proffat on Jury Trials, secs. 382, 375. (4) The verdict was insufficient to support the judgment. Bishop's C, P., sec. 1004 (2 Ed.); Hawkin's Pleas of Crown, p. 622. note 2. (5) The court erred in refusing to give to the jury the instructions asked by plaintiff. (6) The court erred in computing the time within which the motion for a new trial should have been filed, and in overruling said motion on the ground that the same was not filed within the time allowed by law; and the court of appeals erred in holding that said motion was not filed within the time allowed by law. Nat. Bank v. Williams, 46 Mo. 17. (7) The court erred in refusing to grant a new trial on the ground that the defective verdict was not taken advantage of by a motion in arrest of judgment, and the court of appeals erred in holding that a new trial was properly refused, owing to plaintiff's failure to file a motion in arrest of judgment.

Dyer, Lee & Ellis for respondent.

(1) The manifest meaning of the language used by the jury in framing their verdict, is that the plaintiff had no cause of action on the evidence in the case. This is equivalent to a verdict against the plaintiff, and to one in favor of the defendant, and although informal is in substance sufficient. Parmelee v. Smith, 21 Ill. 620; Petters v. Bingham, 10 N. H. 514; Simmons v. Raiden, 9 Ga. 543; McRae v. Calcalough, 2 Ala. 74; Jones v. Julian, 12 Ind. 274; State, etc., v. Knight, 46 Mo. 83; Carter v. Blankenship, 3 Mo. 583; Longacre v. State, 2 How. [Miss.] 637; 2 Hilliard on New Trials, 133; Schaabs v. Wheel Co., 56 Mo. 173; Edwardson v. Garnhart, 56 Mo. 81. (2) The objection to the form of the verdict can only be raised by motion in arrest of judgment, and not by motion for a new trial. Erdbruegger v. Meier, 14 Mo. App. 258; Finney v. State, 9 Mo. 225. (3) The instructions given fully presented all the law there was in the case, and more favorably than plaintiff was entitled to.

NORTON, J.

This is an action for libel, in which the defendant is charged with publishing certain libelous statements, particularly set forth in the petition. The answer admitted the publication of the statements charged in the petition as libelous, and by way of justification, alleged the statements so published to be true. The jury to which the cause was submitted returned into court the following verdict, to-wit: “We, the jury, in the case of David A. Cattell v. The Dispatch Publishing Company, find no cause for action. F. W. Weber, Foreman.” The foreman of the jury handed this verdict to the court, who after examining it, suggested to the foreman that the verdict should be in the following form: “We, the jury, find for the defendant.” To which the foreman replied that the jury had agreed on the particular form of verdict returned and did not wish to change the same. Whereupon the jury were asked by the clerk, after reading the verdict to them, if the verdict was their verdict, to which all replied in the affirmative, and the said verdict was received and filed, and judgment was rendered thereon in favor of defendant This judgment was affirmed on appeal to the St. Louis court of appeals.

It is evident that the verdict of the jury is informal and unsatisfactory, and is not directly responsive to the issues submitted to them, and the conclusion that they intended by it to find...