Lupkey v. Weldon

• Decision Date: 11 September 1967
• Docket Number: No. 51811,51811
• Citation: 419 S.W.2d 91
• Parties: Dean LUPKEY, Plaintiff-Appellant, v. William H. WELDON, News Tribune Company, a Corporation, and Jefferson Television Company, a Corporation, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 91

419 S.W.2d 91

Dean LUPKEY, Plaintiff-Appellant, v. William H. WELDON, News Tribune Company, a Corporation, and Jefferson Television Company, a Corporation,

Defendants-Respondents.

No. 51811.

Supreme Court of Missouri, En Banc.

Sept. 11, 1967.

Rehearing Denied Oct. 9, 1967.

Robert Kingsland, Cullen Coil, Jefferson City, for appellant, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.

Lon Hocker, St. Louis, for respondents, Hocker, Goodwin & MacGreevy, St. Louis, of counsel.

DONNELLY, Judge.

This is a libel action. Plaintiff had a jury verdict of $1,000 actual damages and $50,000 punitive damages. The trial court granted defendants a new trial on the sole ground that the verdict was 'against the weight of the evidence.' Plaintiff appealed.

Plaintiff concedes that a new trial may be granted in a libel action on the ground that the verdict was against the weight of the evidence. 53 C.J.S. Libel and Slander § 234, p. 359; Johnson v. Scribner, 6 Conn. 185. A trial court may grant a new trial in a libel action on a recognized legal ground. Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332. A recognized legal ground is that the verdict is against the weight of the evidence. Section 510.330 RSMo 1959, V.A.M.S.; Supreme Court Rule 78.01, V.A.M.R.

Plaintiff contends there was no substantial evidence to have supported a verdict for defendants and, therefore, that the trial court erred in granting a new trial on the ground the verdict was against the weight of the evidence. He asserts the editorial complained of is libelous per se; that, therefore, the only defense is truth; that there was no evidence to support said defense; and, therefore, that there was no evidence to weigh.

Plaintiff relies upon a rule of law stated in Castorina v. Herrmann, 340 Mo. 1026, 1032, 104 S.W.2d 297, 300, as follows: '* * * To grant a new trial, on the ground that the finding was against the weight of the evidence, would be arbitrary if there was no evidence to weigh. Therefore, on appeal from such an order based on that ground, the appellate court will determine whether or not there was sufficient substantial evidence to sustain a verdict for the party to whom the new trail was granted. * * *.'

The question for determination is whether this rule of law is available to plaintiff in a libel action when there is a verdict for plaintiff and defendants are granted a new trial on the ground the verdict is against the weight of the evidence. We are of the opinion it is not.

In interpreting the Castorina statement, we must view it as but an application of the rule of law that we will overturn an order granting a new trial on the ground the verdict was against the weight of the evidence only in cases where no verdict in favor of the party at whose instance the new trial was granted 'could ever be permitted to stand.' Haven v. Missouri Railroad Company, 155 Mo. 216, 230, 55 S.W. 1035, 1039.

The essential question is whether, in a given case, the appellate court must declare as a matter of law that the trial court should have directed a verdict against the party at whose instance the new trial was granted. Or, to state it in a different way, the question is whether, in this case, we must declare that the trial court should have directed a verdict for plaintiff. We cannot do this in a libel action.

Article I, Section 8 of the Missouri Constitution, V.A.M.S., provides in part that 'in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.' This provision has been interpreted to mean that the court may not direct a verdict for a plaintiff in a libel case. In this respect libel cases differ from other cases. Heller v. Pulitzer Pub. Co., 153 Mo. 205, 212, 213, 214, 54 S.W. 457, 458, 459; Diener v. Star-Chronical Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A., N.S., 216. In Ukman v. Daily Record Co., 189 Mo. 378, 390, 88 S.W. 60, 64, the Court stated:

'Libel cases are sui generis, in that the gist of Fox's Libel Act, imbedded in our Constitution, section 14, art. 2, Bill of Rights, leaves to the jury the issue of libel or no libel; and from this certain peculiar results logically flow and are recognized by the courts, to wit, that a defendant in a libel suit has two strings to his bow, the one the jury and the other the court, whereas the plaintiff has but one, and, if he succeed, must win a verdict from the jury. Stated in a different way, if the defendant can get either the court or the jury to be in his favor, he succeeds, while the prosecutor or plaintiff cannot succeed unless he gets both the court and the jury to decide for him. From this condition of things it further follows that the court may direct a nonsuit, but cannot coerce a verdict for plaintiff. * * *.'

This Court has consistently declined to weigh evidence on appeal when the trial court granted a new trial on the ground the jury verdict is against the weight of the evidence. See Clark v. Quality Dairy Co., Mo.Sup., 400 S.W.2d 78, for a review of our judicial history in this regard. As stated in the Clark case, weighing evidence involves a qualitative analysis as well as a quantitative analysis. We have long recognized the superior ability of a trial court to perform this function, and we will not substitute our judgment for that of the trial court when it grants a new trial on the ground the jury verdict is against the weight of the evidence.

We cannot hold as a matter of law that a jury verdict for defendants could not have been permitted to stand. We will not overturn the order of the trial court granting a new trial.

Plaintiff asserts that then the trial court submitted the facts to the jury, and denied defendants' contention that defendants should prevail as a matter of law, the trial court divested itself of the power to grant a new trial on the ground the jury verdict was against the weight of the evidence. We do not agree. State ex rel. State Highway Commission v. Belvidere Development Company, Mo.Sup., 315 S.W.2d 781, 785.

The order granting a new trial is affirmed.

HOLMAN, C.J., and HENLEY, FINCH and EAGER, JJ., concur.

SEILER, J., concurs in result in separate concurring opinion filed.

STORCKMAN, J., dissents in dissenting opinion filed.

Concurring Opinion

SEILER, Judge.

I concur in the result reached in the opinion written by Judge Donnelly, but would rest the decision on a somewhat different basis. I do not believe that we review a libel case where a new trial has been granted on the ground the verdict is against the weight of the evidence any differently than we do any other damage suit, nor do I believe our review turns on the fact the trial court cannot direct a verdict for a plaintiff in a libel suit. It seems to me that the language in the Castorina opinion (in Castorina the plaintiff had been granted a new trial), relied upon by plaintiff and set out in Judge Donnelly's opinion, must be taken as referring to what the appellate court does when considering the situation where plaintiff has been granted a new trial on the weight of the evidence, which is not this case. The Castorina language relied upon by plaintiff does not apply where defendant gets the new trial on the weight of the evidence (and I do not think this is limited to libel cases). This is the flaw in plaintiff's argument that since there was no substantial evidence to have supported a verdict for defendants, the trial court erred in granting defendants a new trial on the ground the verdict was against the weight of the evidence.

When a defendant is granted a new trial on such ground in a case where plaintiff's claim is denied by the answer and there is oral evidence on the part of plaintiff on which the jury must pass as to credibility and where the plaintiff must face the risk of non-persuasion of the jury (as here where plaintiff put on six members of the city council, the mayor, the city clerk, four witnesses as to good reputation, the deposition of the lawyer advising plaintiff at the time, and plaintiff himself and wife), the test quoted from Castorina does not fit, because a verdict for a defendant can stand even without any substantial evidence in favor of the defendant, Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558; Holtzman v. Holtzman (Mo.App.) 278 S.W.2d 1; Rodgers v. Seidlitz Paint and Varnish Co. (Mo.Sup.) 404 S.W.2d 191; Fitch v. Star-Times Pub. Co. (Mo.Sup.) 263 S.W.2d 32.

We have no way of knowing why the trial court concluded the verdict for plaintiff was against the weight of the evidence. It may have been for some matter known to the court in witnessing and presiding over the trial and which does not and cannot appear in the record. His action in awarding defendants one new trial on the ground stated does not have to be supported by substantial evidence in the record on which the jury could have returned a verdict for the defendants. In effect, under the Missouri practice, when it comes to granting a new trial for the defendant on such ground, the trial court is not limited to a situation where, upon looking back, it can be said there was substantial evidence in the record to have supported a verdict for defendant originally, any more than a jury, under Cluck v. Abe, supra, is limited to returning a verdict for the defendant only where there is substantial evidence in favor of the defendant.

Dissenting Opinion

STORCKMAN, Judge.

The majority opinion seems to be dominated by the mistaken concept that constitutional provisions pertaining to libel actions limit an appellate court's review of rulings of the trial court. The libel act constitutes the jury the adjudicator of the law and the facts in a libel action; consequently, the trial court (as well as the appellate court) cannot direct a verdict in favor of the plaintiff.

Logically it might be contended that once the jury has exercised its prerogative to determine the issue of libel vel non the court could not disturb the finding,...