McCloskey v. Pulitzer Pub. Co.

• Decision Date: 07 May 1901
• Citation: 63 S.W. 99,163 Mo. 22
• Parties: McCLOSKEY v. PULITZER PUB. CO.
• Court: Missouri Supreme Court

63 S.W. 99

163 Mo. 22

McCLOSKEY v. PULITZER PUB. CO.

Supreme Court of Missouri, Division No. 2.

May 7, 1901.

NEW TRIAL — GRANTING AFTER TRIAL TERM — SUFFICIENCY OF MOTION — EXCESSIVE DAMAGES.

1. A motion for a new trial, alleging that the verdict is unwarranted by the evidence, is sufficient to authorize the granting of a new trial, after the trial term, on the ground that the verdict is excessive.

2. A motion for a new trial, alleging that the verdict is the result of passion and prejudice, is sufficient to authorize the granting of a new trial, after the trial term, on the ground that the verdict is excessive.

3. A motion for a new trial, alleging that there is no evidence authorizing a verdict for compensatory or punitive damages, and that the verdict should have been for nominal damages only, is sufficient to authorize the granting of a new trial, after the trial term, on the ground that the verdict is excessive.

4. A motion for a new trial, alleging that the verdict is contrary to the law and the evidence, is sufficient to authorize the granting of a new trial, after the trial term, on the ground that the verdict is excessive.

5. The decision of the trial court in setting aside a verdict as excessive will not be interfered with on appeal, unless the discretion of the trial court has been unreasonably or arbitrarily exercised.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action for libel by John McCloskey against the Pulitzer Publishing Company. From an order of the trial court granting a new trial, the plaintiff appeals. Affirmed.

Charles & Lackey, for appellant. F. N. Judson and J. C. Taussig, for respondent.

BURGESS, J.

This is an appeal from an order of the trial court setting aside a verdict and judgment in favor of plaintiff for $6,558,-$4,500 compensatory, and $2,058 punitive, damages. The case was before this court at the October term, 1899, and a judgment in favor of defendant was reversed, and the cause remanded, on the ground that the trial court erred in refusing to give an instruction defining libel in accordance with the statute. The case will be found reported in 152 Mo. 339, 53 S. W. 1087. The facts disclosed upon the last trial were substantially the same as upon the first, about the only difference being that plaintiff testified in his own behalf on the last trial as to his family differences; while his wife, who had in the meantime been divorced, and thereby made a competent witness, testified in behalf of defendant, as did also the two sons of plaintiff. The evidence of defendant showed that Mrs. McCloskey, the wife of the plaintiff, having seen the article in the Post-Dispatch entitled "A Question of Finance," was desirous that the paper should publish her side of the controversy between her husband and herself. Thereupon, accompanied by her daughter, she called at the office of the Post-Dispatch, and, in the presence of her daughter, told to the reporter that which was credited to her in the alleged libelous article. Miss Annie McCloskey, the daughter, testified that the interview with her mother published in the article complained of was substantially as Mrs. McCloskey had given it to the reporter. The evidence shows that the article, so far as it related to the pending of a divorce suit and the state of feeling between the husband and wife, was true. As to the adequacy of the support of his wife and seven children, the only evidence for the plaintiff was his own testimony, while he was directly contradicted by four witnesses, — his two sons, his daughter, and his wife. The plaintiff was at the head of a large establishment, the St. Louis Carbonating Company, and worth about $100,000, yet, according to the evidence, his wife was obliged to wear heavy clothing in July, and to go without suitable shoes. Their son John McCloskey testified that on one occasion he went to his father to get money to buy a pair of shoes for his mother, and that he refused to give it to him, saying that he was through buying shoes and clothes or anything else for her. The younger children were poorly clad, and by reason thereof seldom appeared upon the street. The evidence upon the part of the plaintiff tended to show to the contrary, and that he provided fairly well for his family. But both Mrs. McCloskey and her daughter testified that the article was true. Mrs. McCloskey testified that her husband gave her six or seven dollars a week for meat, "and made me spend nearly all of it on Sunday to support him," and that they only had lots to eat when he had company. Both Mrs. McCloskey and her daughter Annie testified that they did not get enough to eat. There was no evidence of actual malice or recklessness. On the contrary, good faith was affirmatively shown. Mr. Underwood, who was city editor at the time the article was published, offered plaintiff the use of the paper's columns for the publication of any statement he cared to make in refutation of his wife's statement. There was no evidence or claim of actual or pecuniary damages. As to the mental suffering or mortification of plaintiff, it appeared that the domestic troubles of the McCloskey family had been previously ventilated in the St. Louis newspapers, on account of the divorce proceedings. On the 12th day of March, 1900, and within four days after verdict, defendant filed its motion to set aside the verdict and for a new trial, and, among others, as grounds therefor assigned the...