Ellsworth v. Martindale-Hubbell Law Directory, Inc.
| Decision Date | 13 December 1939 |
| Docket Number | 6600 |
| Citation | 289 N.W. 101,69 N.D. 610 |
| Court | North Dakota Supreme Court |
Rehearing Denied December 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 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.
Knauf & Knauf and S. E. Ellsworth in pro. per., for appellant.
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. Laws 1931, chap. 133; First Nat. Bank v. Strauss, 50 N.D. 71, 194 N.W 900; Jones v. St. Paul, 130 Minn. 260, 153 N.W. 516; Matz v. Martinson, 127 Minn. 262, 149 N.W. 370.
An error in the charge of the court to the jury can be reviewed on appeal from the judgment without a motion for a new trial being made. McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685.
The giving of a peremptory instruction violates a substantial right and is per se reversible error. Small v. Virginia R. & Power Co. 125 Va. 416, 99 S.E. 525; Norfolk & W.R. Co. v. Simmons, 127 Va. 419, 103 S.E. 609.
An error shall not be regarded immaterial or harmless unless it appears beyond a doubt that it did not and could not have prejudiced the rights of the objecting party. Norfolk & P. Traction Co. v. Miller, 174 F. 607.
Where error is shown, there is a presumption that it is prejudicial, and, unless the appellate court can clearly see that the party has not been prejudiced by reason of the error, the presumption of prejudice will prevail. Weller v. Hildebrandt, 19 S.D. 45, 101 N.W. 1108.
The burden is on the appellee to show that an error pointed out by the appellant is harmless. Merriam v. Merriam (Ind.) 55 N.E. 73; Chicago, I. & L.R. Co. v. Martin, 63 N.E. 247; Campau v. Traub, 27 Mich. 215.
An erroneous instruction is presumed to be prejudicial. Smith v. Perham (Mont.) 83 P. 492.
Every error is presumed to work injury to the party against whom it is committed, unless it affirmatively appears from the record that no injury did or could result. Rice v. Heath, 39 Cal. 609; Cleary v. City R. Co. (Cal.) 18 P. 269; Painter v. Lebannan Land Co. 164 Mich. 260, 130 N.W. 205; Stanley v. Taylor, 160 Iowa 427, 142 N.W. 81; Taggart v. Bosch (Cal.) 48 P. 1092.
Where incorrect instructions are given, the error will not be deemed harmless on review unless such fact is made to appear from the record. McCook v. Kemp (Kan.) 59 P. 1100.
Where the court on appeal cannot say that the jury was not misled by erroneous instructions, in view of the state of proof, resulting prejudice to the defeated party must be presumed. Great Western Sugar Co. v. Parker (Colo. App.) 123 P. 670.
An erroneous instruction, which was excepted to, is presumed to be prejudicial to the party excepting, so as to warrant a reversal of the judgment. Quinlivan v. Buffalo, R. & P.R. Co. 64 N.Y.S. 795; Carney v. Dunniway (Or.) 57 P. 192.
Printed words are actionable, although not in themselves libelous, when they convey imputation in connection with plaintiff's trade, profession or occupation. Lyman v. New England Newspaper Pub. Co. (Mass.) 190 N.E. 542, 92 A.L.R. 1124.
Where statements concerning plaintiff in his professional character are susceptible, in their ordinary meaning, of such construction as would tend to injure him in that capacity, they are libelous per se and complaint even in the absence of special damage states a cause of action. Pleebury v. Sipser (N.Y.) 191 N.E. 875; Walker v. Cronin, 107 Mass. 107; Delz v. Winfree (Tex.) 16 S.W. 111.
The litigant must confine his journey to the road on which he invites the court and his adversary to travel with him. American F. Ins. Co. v. Landfare, 56 Neb. 482, 76 N.W. 1068; Deupree v. Thornton, 98 Neb. 804, 154 N.W. 557.
The term "publication," in its ordinary and popular sense, has a narrower meaning than its technical legal meaning which, in the law of libel, embraces the entire means whereby libelous matter is made public. 32 Cyc. 751, note 99; Wheaton v. Beecher, 79 Mich. 443, 44 N.W. 927; 17 R.C.L. 373.
The accrual of a cause of action, within the statute of limitations, means the right to sue and when one person may sue another, a cause of action has accrued. 1 Words & Phrases, 56.
Libel action commenced within two years of the date book was reissued or republished is not barred by the statute of limitations, since every separate publication of defamatory matter is a distinct offense. Mack, Miller Candle Co. v. Macmillan Co. 239 A.D. 738, 269 N.Y.S. 33.
Nilles, Oehlert & Nilles, for respondent.
No statement of the case or certification to testimony of a fact shall be made by a court without notice to the litigants concerned. Harris v. Hessin, 30 N.D. 33, 151 N.W. 4.
A statement of the case must be settled embodying the trial court's minutes, as is essential to a review by the supreme court of the specifications of error based thereon. Davis v. Jacobson & Dinnie, 13 N.D. 430, 101 N.W. 314; Goose River Bank v. Gilmore, 3 N.D. 188, 54 N.W. 1032; Bowen v. Malbon, 20 Wis. 491; Hubbard v. Lyndon, 24 Wis. 231; Oakland Gaslight Co. v. Cameron, 57 Cal. 292; Ashe v. Beasley & Co. 6 N.D. 191, 69 N.W. 188; Macmillan v. Conat, 11 N.D. 256, 91 N.W. 67; King v. Hanson, 13 N.D. 85, 99 N.W. 1085; St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N.W. 497.
Where on any contingency supposable in the state of the record, the decision below might have been valid, such contingency will be so presumed. Raad v. Grant & Grant, 43 N.D. 546, 550, 169 N.W. 588.
He who urges error in the order of the trial court must prepare and present a record of the facts upon which the trial court acted. State v. Scholfield, 13 N.D. 664, 102 N.W. 878; Schomberg v. Long, 15 N.D. 506, 108 N.W. 332; State v. Gerhart, 13 N.D. 663, 102 N.W. 880; Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592; Brissman v. Thistlethwaite, 49 N.D. 417, 192 N.W. 85.
Where the appeal is on the judgment roll, no statement of the case having been settled, the court had no means of determining whether the evidence is sufficient or insufficient, and that consequently, the determination and judgment of the trial court could not be disturbed. Lemke v. Merchants Nat. Bank & T. Co. 66 N.D. 48, 262 N.W. 246.
Under the statute the court is inhibited from passing on the merits of a motion for a directed verdict, when the adverse party objects to such motion. The presentation of an argument on the merits of such motion is, in a sense, inconsistent with such objection. First Nat. Bank v. Strauss, 50 N.D. 71, 194 N.W. 900.
The law contemplates an issue of fact. If there be no issue of fact, there is nothing that can be submitted. Thoreson v. Hector, 54 N.D. 651, 210 N.W. 169; Matz v. Martinson, 127 Minn. 262, 149 N.W. 370.
Where the record does not affirmatively show error, it will be presumed that every proceeding below essential to its legality was validly taken, and that every fact essential to its regularity was legally shown. And where on any contingency supposable in the state of the record, the decision below might have been valid, such contingency will be so presumed. 2 Enc. Pl. & Pr. 425, 428-433; Raad v. Grant & Grant, 43 N.D. 546, 169 N.W. 588.
Unfavorable statements of comparison were not libelous and not actionable. Axton Fisher Tobacco Co. v. Evening Post Co. 169 Ky. 64, 183 S.W. 269; McDermott v. Union Credit Co. 76 Minn. 88, 79 N.W. 673; Thompson v. Matthiasen, 135 N.Y.S. 796.
If the words are not in any proper sense ambiguous or doubtful, and in their ordinary and proper signification, convey...
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