Jones v. Pulitzer Pub. Co.

• Decision Date: 19 December 1911
• Parties: JONES v. PULITZER PUB. CO.
• Court: Missouri Supreme Court

144 S.W. 441

240 Mo. 200

JONES v. PULITZER PUB. CO.

Supreme Court of Missouri, Division No. 2.

December 19, 1911.

Rehearing Denied February 27, 1912.

1. APPEAL AND ERROR (§ 171)—QUESTIONS REVIEWABLE—THEORY OF CASE.

A party who tries a case on one theory may not urge another theory on appeal.

2. LIBEL AND SLANDER (§ 42)—JUDICIAL PROCEEDINGS—PRIVILEGED PUBLICATION.

A hearing on a motion for alimony in a suit for divorce and on a plea in abatement is such judicial action in the case that a publication of a fair report of the proceedings including the pleadings in the case and depositions on file is privileged.

3. APPEAL AND ERROR (§ 172)—REVIEW—ISSUES BELOW.

A plaintiff in an action for libel, who does not raise the issue of obscene publication in violation of Rev. St. 1909, § 4737, and who does not ask any instruction on that theory, may not on appeal complain that the article is obscene and is not privileged.

4. LIBEL AND SLANDER (§ 124)—ISSUES—INSTRUCTIONS.

Where, in an action for libel based on a publication libelous per se, the answer alleged that the publication was a fair report of a judicial proceeding, but did not plead the truth of the publication, and the reply denied the new matter, and the court charged that the only issue was whether the article was a fair report of a judicial proceeding, a charge that whether the publication was a full and fair report was for the jury, and that if the article contained matter of unfair comment derogatory to plaintiff, which was not true, such comment was not privileged, etc., was erroneous, for separating the publication into report and comment, leaving what was report under the protection of the privilege and what was unfair comment under the defense of truth not raised by the pleadings.

5. LIBEL AND SLANDER (§ 51)—PRIVILEGED COMMUNICATIONS—"FAIR."

A newspaper publication, to be privileged as a publication of judicial proceedings, must be fair; that is, just, impartial, as to the party complaining, and reasonably correct.

6. LIBEL AND SLANDER (§ 124)—PRIVILEGED COMMUNICATIONS—INSTRUCTIONS.

An instruction, in an action for libel alleged by defendant to be privileged as a publication of a judicial proceeding, that, if the article was a reasonably fair and correct report of the proceeding, the verdict must be for defendant, and that the question was whether the article taken as a whole was a reasonably fair and correct report of the proceeding during the trial and of the contents of the depositions on file in court, was objectionable as fixing an erroneous standard of fairness.

7. APPEAL AND ERROR (§ 1031)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Error in instructions is presumptively prejudicial.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Orville D. Jones against the Pulitzer Publishing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. G. Trimble and Joseph G. Wheless, for appellant. Judson & Green, for respondent.

KENNISH, P. J.

This action for libel was brought by appellant, Orville D. Jones, against respondent, Pulitzer Publishing Company, in the circuit court of the city of St. Louis. Plaintiff is an attorney at law, residing at Edina, Mo. The defendant is a corporation, and owns and publishes the newspaper known as "The St. Louis Post-Dispatch," published at the city of St. Louis, the paper in which the alleged libelous publication appeared. The petition contains six counts. Upon a trial the jury returned a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed to this court.

It appears from the pleadings and the record before us that plaintiff's wife, in the month of January, 1906, left her home in Edina, for a visit with relatives in St. Louis. She did not return to her home, but in the month of April next following filed a suit for divorce against her husband, the plaintiff herein, in the circuit court of the said city of St. Louis. Before the divorce suit was filed, plaintiff's wife went to Edina and appeared before a notary public, accompanied by a negro woman named Katie Bryant, who had formerly been employed by plaintiff and his wife as a domestic. Both women made oath to certain affidavits which plaintiff's wife had in her possession, already prepared, and the notary public was requested to attach his jurat without reading the contents, which was accordingly done. After the filing of the divorce suit, plaintiff's wife took depositions in the city of St. Louis, in which charges of improper and immoral conduct, on the part of plaintiff with said Katie Bryant, were made by the plaintiff's wife, and about the same time the notary public informed plaintiff of the incident of his wife and Katie Bryant having executed the said affidavits before him. Thereupon, on April 20th and 21st, plaintiff took the depositions of 18 witnesses in Edina, to be used as evidence in the divorce suit, for the purpose of contradicting the evidence on the part of his wife by which she attempted to prove that plaintiff had sought to have improper relations with Katie Bryant. These depositions were filed by plaintiff in the office of the clerk of the circuit court in the city of St. Louis on the 25th day of April, 1906. Plaintiff's wife filed a motion for temporary alimony in the divorce suit, and plaintiff filed an answer to the petition, containing, in addition to a general denial, a plea to the jurisdiction of the court, on the ground that his wife was not a resident of the city of St. Louis. The motion for temporary alimony and the plea to the jurisdiction were taken up by the court on April 27, 1906, and after hearing testimony thereon the court set the case for trial on the merits on the 14th day of June following. The cause came on for trial on the date set, and the taking of testimony occupied three days. On the 28th day of April, 1906, the day after the hearing of the motion for temporary alimony and the plea in abatement, and again on the day following, the Post-Dispatch published in its columns a report of the case, including an abridgment of the testimony in the depositions theretofore taken and filed in court by plaintiff. The first and second counts of the petition in this case are based upon the alleged libelous publication in the said issues of April 28th and 29th; the latter being a reproduction of the article published the day before. The other counts are based upon reports of the testimony in the divorce case as published in the daily editions of the paper during the progress of the trial on the merits. The answer contained substantially the same defenses to each count of the petition. It admitted the formal allegations of inducement and the publication of the article complained of, but denied that the article published was a libel on plaintiff. The answer to each count further alleged that the publication was a reasonably fair and impartial report of the testimony in the divorce case, and therefore privileged as such under the law. It was further alleged, by way of mitigation, that when the court had decided the divorce case in favor of the plaintiff herein, the defendant published the fact of said favorable decision and stated that such decision discredited the testimony against plaintiff at the trial. The reply was a general denial of all new matter in each paragraph of the answer. At the close of all the evidence appellant voluntarily dismissed as to the fourth and fifth counts of the petition, and the case was submitted to the jury upon the remaining counts, with the result heretofore stated.

As it is conceded that the publications, if false and not privileged, were libelous per se on their face, we do not deem it necessary to set them out at length. Such parts of the pleadings and the instructions as may be necessary to an understanding of the questions discussed will be set out in the course of the opinion.

The Constitution of this state provides that in all suits for libel the jury, under the direction of the court, shall determine both the law and the fact. In this case no complaint is made by appellant as to the ruling of the court in admitting or excluding evidence, and as the verdict of the jury, upon the issue of libel or no libel, was for the defendant, the only matter for review upon this appeal is the action of the court in giving and refusing instructions to the jury.

1. Appellant first complains that the court erred "in refusing plaintiff's instruction declaring the law to be that the articles complained of in the first and second count in the petition were not privileged," for the reason that said articles were not reports of judicial proceedings. The first and second counts of the petition were based upon the articles published in the issues of the paper of the 28th and 29th of April, and each purported to give an abridged report of the testimony contained in the depositions theretofore taken and filed in court by plaintiff. When the motion for temporary alimony and the plea in abatement were heard on the 27th of April, although testimony was introduced, the depositions were not used and had not been offered in evidence when their contents were published in the articles complained of in said first and second counts. At the request of the plaintiff, the court instructed the jury that the defendant claimed the articles as published were privileged as a...