Harrington v. Butte Miner Co.

• Citation: 139 P. 451,48 Mont. 550
• Parties: HARRINGTON v. BUTTE MINER CO. ET AL.
• Decision Date: 27 February 1914
• Court: United States State Supreme Court of Montana

139 P. 451

48 Mont. 550

HARRINGTON v. BUTTE MINER CO. ET AL.

Supreme Court of Montana

February 27, 1914

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by T. J. Harrington, administrator, against the Butte Miner Company and another. From an order granting a new trial defendants appeal. Reversed.

Geo. F Shelton, M. P. Gilchrist, Fred J. Furman, and A. J. Verheyen all of Butte, for appellants.

D. M. Kelly, of Helena, and Canning & Geagan, of Butte, for respondent.

HOLLOWAY J.

Action for damages for libel. Upon the trial of this cause, at the instance of the plaintiff, the court gave instruction No. 2, as follows: "You are instructed that the article complained of in this action is libelous in itself, and, under the law and the evidence, you should find for the plaintiff and against the defendants, Butte Miner Company and J. Lawrence Dobell, and award him such damages as, in your judgment, are just and fair under the circumstances." Notwithstanding this direction, the jury returned a general verdict in favor of the company and Mr. Dobell. Plaintiff moved for a new trial upon three grounds: Insufficiency of the evidence, that the verdict is against law, and error in law occurring at the trial. The motion was sustained, and a new trial granted in an order as follows: "This day the motion of the plaintiff for a new trial herein is by the court granted, solely and entirely upon the single ground presented to this court that the jury disregarded and refused to obey the instruction of the court to find a verdict for the plaintiff." The appeal is from that order.

Counsel for respondent in their brief suggest that the order should be upheld, if it can be done upon any ground of the motion. That rule, however, applies only to a case where the order is a general one, not disclosing the particular ground upon which the court acted, or to a case where counsel have invoked the provisions of the act for the compensation of errors (section 7118, Rev. Codes). In this instance counsel did not except to the order of the trial court, which, in effect, overruled their motion upon every other ground save the one designatd in the order. But, assuming counsel's position to be correct, they do not indicate to us any error in the record claimed by them to be prejudicial to the plaintiff, other than the one upon which the trial court acted, and they cannot expect the members of this court to go through a record of more than 500 pages in a microscopic search for some error which they do not suggest exists there.

The one question before us is: Were the jurors bound by the trial court's instruction No. 2? In Murray v. Heinze, 17 Mont. 353, 42 P. 1057, 43 P. 714, this court held that in all cases, except libel, the jury are bound by the instructions of the court, and a verdict in disregard of them will be set aside as against law. That decision has been affirmed, repeatedly, and, if in any given instance the exception noted above has been omitted in the statement of the rule, it was mere oversight. There has never been any intention on the part of the court to modify the rule as there expressed; so that, in the investigation of the question before us, we are not embarrassed by any conflicting statements heretofore made by this court; indeed, the question has never been presented directly before this. In Paxton v. Woodward, 31 Mont. 195, 78 P. 215, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, it was suggested, but decision was reserved, as the question was not so directly involved that its determination was necessary to the proper disposition of the appeals in that case.

Section 10 of article 3 of the Constitution of Montana contains this provision: "In all suits and prosecutions for libel, the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts." In its general scope, it is not new to the law. Prior to 1792, the law of libel in England was in an unsatisfactory, if not uncertain, state, and, for the purpose of setting at rest all questions as to the province of the jury in the trial of a libel case, the Parliament passed what is known as the Fox Libel Act, entitled "An act to remove doubts respecting the functions of juries in cases of libel" (32 Geo. III, c. 60). The act was by its terms made applicable only to criminal libels. It provides that the trial court shall give the jury instructions as in other criminal cases, but that the jurors may determine for themselves the question of libel or no libel. The act will be found in its entirety in Odgers on Libel and Slander (2d Ed.) p. 710.

In Bank v. Henty, 7 App. Cas. 741, the Judicial Committee of the Privy Council, considering the effect of the Fox Act upon the practice in England, said: "Since Fox's Act at least, however the law may have been before, the prosecutor or plaintiff must also satisfy a jury that the words are such, and so published, as to convey the libelous imputation. If the defendant can get either the court or the jury to be in his favor, he succeeds. The prosecutor, or plaintiff, cannot succeed unless he gets both the court and the jury to decide for him."

In Odgers on Libel and Slander (2d Ed.) p. 604, the proceeding in the trial of a criminal libel after the enactment of the Fox Act is tersely stated as follows: "The judge, of course, may still direct the jury on any point of law, stating his own opinion thereon, if he thinks fit; but the question of libel or no libel must ultimately be decided by the jury."

Commenting upon the practice in England before the passage of the Fox Act, under which the courts reserved to themselves the right to determine the question of libel or no libel, Judge Cooley in his Principles of Constitutional Law, 281, says: "This doctrine was overruled by statute in England, and the jury are now permitted to judge of the whole case, and to decide, not merely upon the responsibility of the publication, but upon the animus with which it was made, and whether within the rules of law the publication is libelous. The instructions of the judge upon the law become under this rule advisory merely, and the jury may disregard them if their judgment is not convinced."

That these authorities correctly interpret the statutory law of libel in England would seem to be beyond controversy.

Early in the history of this country, like provisions, applicable only to criminal prosecutions for libel, were enacted. Most of them have found expression in state Constitutions. For instance, in Alabama the Constitution (article 1, § 13) provides "that in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court," and a like provision is found in Arkansas, California, Connecticut, Delaware, Kentucky, Maine, Michigan, Mississippi, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, and Wisconsin, and in the statute law of Iowa and Kansas. In every instance, however, it is limited to criminal libels.

Upon the question before us, it is idle to cite cases from states which have no provision of Constitution or law respecting the functions of a jury in the trial of a libel case. In the absence of any such provision, the general rule that the court's instructions are binding upon the jury would prevail (Gregory v. Atkins, 42 Vt. 237); and this would be the rule also in the trial of civil cases for libel in the states enumerated above, where the provision is limited to criminal libels. But a decision from any one of those states in a criminal prosecution is a precedent and valuable, to the extent that the reasoning of ...