Ellsworth v. Martindale-Hubbell Law Directory, Inc., 6600.

• Court: United States State Supreme Court of North Dakota
• Citation: 289 N.W. 101,69 N.D. 610
• Docket Number: No. 6600.,6600.
• Parties: ELLSWORTH v. MARTINDALE-HUBBELL LAW DIRECTORY, Inc.
• Decision Date: 30 December 1939

69 N.D. 610
289 N.W. 101

ELLSWORTH
v.
MARTINDALE-HUBBELL LAW DIRECTORY, Inc.

No. 6600.

Supreme Court of North Dakota.

Dec. 13, 1939.
Rehearing Denied Dec. 30, 1939.

Syllabus by the Court.

1. When at the close of the testimony a party to an action moves the court to direct a verdict in his favor and the adverse party

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objects thereto, it is error for the trial court to grant the motion for a directed verdict.

2. Where the trial court has directed a verdict contrary to the provisions of Chapter 245, Session Laws N.D.1935, and the whole record is before us from which it appears that a judgment in favor of the moving party must be entered notwithstanding the verdict either upon a motion therefor in the trial court or upon appeal, the party against whom the verdict is directed is not entitled to a new trial, the error in directing the verdict not being prejudicial.

3. In determining the actionable quality of words alleged to be libelous, the entire publication may be considered for the purpose of determining the meaning of that portion upon which the action is based.

4. In an action to recover damages for an alleged defamatory publication; if it is necessary to plead and prove an innuendo in order to establish libel and there is a reasonable possibility that a libelous meaning can be given to the publication under the pleadings and evidence, it is for the jury to determine if the libelous meaning was intended and conveyed, but, if at the close of the testimony the evidence does not tend to establish the innuendo, no jury question is presented.

5. In an action for libel based upon a publication not libelous per se wherein the plaintiff seeks damages for diminution of his business, he must present evidence tending to show that the decrease in the volume of his business was the result of the publication. In the absence of such evidence no jury question is presented.

6. Evidence examined and it is held, that upon the whole record the defendant is entitled to judgment as a matter of law.

Appeal from District Court, Stutsman County; Geo. M. McKenna, Special Judge.

Libel action by S. E. Ellsworth against Martindale-Hubbell Law Directory, Inc. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

BURR, J., dissenting.

Knauf & Knauf, of Jamestown, for plaintiff and appellant.

S. E. Ellsworth, of Bismarck, in pro. per.

Nilles, Oehlert & Nilles, of Fargo, for defendant and respondent.

MORRIS, Judge.

This is an action for libel. Upon a former appeal (66 N.D. 578, 268 N.W. 400) involving a demurrer to the complaint, we held that the matter alleged to be defamatory did not constitute libel per se, but that the complaint did allege a libel per quod, and sufficiently set forth facts constituting a defamatory publication. We further held that general damages do not result as a matter of course from the publication of defamatory matter that is not libelous per se and that the complaint was demurrable for failure to allege special damages. We also held that the complaint was demurrable for failure to allege a defamatory understanding. The case was remanded to the district court with permission to amend. The plaintiff amended his complaint to which the defendant again demurred. From the order overruling this demurrer the defendant appealed to this court. In 68 N.D. 425, 280 N.W. 879, we passed upon the sufficiency of the amended complaint with respect to the pleading of special damages. We held that special damages were sufficiently pleaded and stated the law to be that where damages are claimed on account of a general diminution of professional business and income resulting from the publication, it is sufficient, where it appears impossible to be more specific, to plead what the business amounted to prior to publication and what it was after publication, and that such diminution resulted from the publication. The case went back to the district court for trial. At the close of the testimony the defendant moved for a directed verdict. In stating the grounds for this motion the defendant contended that no defamatory matter or special damages were proved in connection with the publication. The court granted the motion and directed a verdict for the defendant over the resistance and objection of the plaintiff. The plaintiff contends that Chapter 245, Session Laws N.D.1935, forbids the granting of such motion and that the granting thereof is, therefore, error which prejudiced the plaintiff and that the plaintiff is entitled to a new trial. The defendant contends that the statute does not prohibit the granting of a motion for a directed verdict in all cases tried to a jury regardless of the evidence, and that even if the court's action in directing a verdict be considered as erroneous the error is without prejudice because the testimony shows that as a matter of law the defendant must prevail.

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[1][2][3][4][5] That portion of Chapter 245, Session Laws N.D.1935, involved here, reads as follows: “When at the close of the testimony any party to the action moves the Court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the Court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request, but upon subsequent motion, by such moving party after verdict rendered in such action, that judgment be entered notwithstanding the verdict, or if the jury have failed to agree upon a verdict, for a directed verdict, the Court shall grant the same if, upon the evidence as it stood at the time such motion to direct a verdict was made, the moving party was entitled to such directed verdict.”

The portion of the statute above quoted was originally enacted as a part of Chapter 133, Session Laws N.D.1921. This statute has been referred to in First National Bank v. Strauss, 50 N.D. 71, 194 N.W. 900;McLeod v. Simon, 51 N.D. 533, 200 N.W. 790;Rokusek v. National Union Fire Ins. Co., 50 N.D. 123, 195 N.W. 300;Thoreson v. Hector, 54 N.D. 651, 210 N.W. 169. In McLeod v. Simon, supra, this court said [51 N.D. 533, 200 N.W. 793], “The plain purpose of this statute is to defer a ruling by the court on the sufficiency of the evidence until after a verdict has been returned. To attain that purpose it is the duty of the court to submit the cause to the jury on such of the various theories presented by the pleadings, and on which any evidence has been offered as shall be requested by any party to the action. * * *”

Under the statute and authorities above cited it was the duty of the court to deny the motion for directed verdict and submit the case to the jury. Failure so to do constituted error. However, every error of the trial court is not prejudicial error upon which a reversal can be predicated. Burdick v. Haggart, 4 Dak. 13, 22 N.W. 589;Bostwick v. Minneapolis & P. Railway Co., 2 N.D. 440, 51 N.W. 781; Kelly & McLaughlin v. Pierce & Champine, 16 N.D. 234, 112 N.W. 995, 12 L.R.A.,N.S., 180; Bristol & Sweet Co. v. Skapple & Montgomery, 17 N.D. 271, 115 N.W. 841;McGregor v. Harm, 19 N.D. 599, 125 N.W. 885, 30 L.R.A.,N.S., 649; Willoughby v. Smith, 26 N.D. 209, 144 N.W. 79;Carr v. Neva, 38 N.D. 158, 164 N.W. 729.

In 5 C.J.S., Appeal and Error, § 1677, p. 810, it is said, “The existence of prejudicial error must appear from the record, the test as to whether error will be presumed prejudicial or harmless or must be proved so being whether it was such as had any reasonable tendency to influence the final result, which sometimes depends on the intrinsic character of the error and sometimes upon all the circumstances of the particular case disclosed by the record and by legitimate inference therefrom.”

In this case the error consists of a violation of a statute forbidding the direction of a verdict. It may be said that prejudice will be presumed from such error and that the party against whom the error is committed need not show that he was, in fact, injured. The presumption of injury, however, is not conclusive. The effect of the presumption of prejudice is to place the burden on the party in whose favor the error might tend to operate to show that the other party was not, in fact, injured by such error. McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685. The ultimate question is still the effect of the error on the rights of the party against whom it was committed. If he is not injured he is not prejudiced, and these proceedings should not be prolonged through another trial which could not bring about a different result. In Thoreson v. Hector, supra, the trial court directed a verdict for the plaintiff over the defendant's objection. There was no evidence on which a verdict for the defendant could have been based. In considering whether the error arising upon the direction of the verdict contrary to statute constituted prejudicial error, this court said [54 N.D. 651, 210 N.W. 171], “Chapter 133, Sess.Laws 1921, requires the court, when objection is made to granting a motion for a directed verdict, to ‘submit to the jury such issue or issues, within the pleadings on which any evidence has been taken.’ In other words, the law contemplates an issue of fact. If there be no issue of fact, there is nothing that can be submitted. Certainly it cannot be reversible error to do in advance that which must inevitably be done after an erroneous verdict; namely, to order the only judgment which can be entered in view of the evidence.”

In Rattie v. Minneapolis, St. P. & S. Ste. M. R. Co., 55 N.D. 686, 215 N.W. 158, 160, the trial court granted a motion to dismiss the case at the close of plaintiff's testimony. The dismissal was assigned as error. In

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disposing of the assignment the court said, “Since the plaintiff's evidence shows affirmatively that he has no cause of action, the granting of defendant's motion to dismiss, and the entry of judgment on the merits thereon, a practice not to be...