Patterson v. Evans

• Decision Date: 06 December 1913
• Citation: 162 S.W. 179,254 Mo. 293
• Parties: PATTERSON v. EVANS.
• Court: Missouri Supreme Court

162 S.W. 179

254 Mo. 293

PATTERSON v. EVANS.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

Rehearing Denied January 3, 1914.

1. TRIAL (§ 296) — INSTRUCTIONS — CURE OF ERROR.

Mere conflict of instructions is not reversible error, but for such conflict to work a reversal there must be error in some instruction given over the losing party's exception; the rule being that the giving of a correct instruction for a defeated litigant does not cure the error in a conflicting, incorrect instruction given over an exception.

2. LIBEL AND SLANDER (§ 123) — QUESTION FOR JURY.

A trial court has no power to direct a verdict for plaintiff in an action for libel, though it may compel a nonsuit or direct a verdict for defendant in a proper case.

3. TRIAL (§ 295) — INSTRUCTIONS — CONSTRUCTION.

Instructions must be read together.

4. APPEAL AND ERROR (§ 930) — REVIEW — INSTRUCTIONS.

Appellate courts must proceed on the theory that instructions were construed together by the jury.

5. LIBEL AND SLANDER (§ 124) — TRIAL — INSTRUCTIONS.

Notwithstanding Const. art. 2, § 14, providing that in all suits for libel the jury, under the direction of the court, shall determine the law and facts, the trial court is justified in informing the jury that a publication is libelous per se, though it is better to include in such instruction the qualification as to the jury's right to determine the law for themselves; nor is it incumbent upon the court to so frame its instructions as to lead the jurors to believe that they are under any obligation to disregard the law as given thereby.

6. TRIAL (§ 296) — INSTRUCTION — CURE BY OTHER INSTRUCTION.

Const. art. 2, § 14, provides that in all suits for libel the jury, under the direction of the court, shall determine the law and the facts. In a suit for libel for publishing of plaintiff, a boarding house keeper, that she was delinquent in payment of debts, the court instructed that, if such publication imputed that plaintiff was unworthy of credit and was injurious to her business standing, the verdict should be for plaintiff, and then instructed that in such case the jury were the sole judges of the law of libel and whether the alleged publication was in fact libelous, and, if it was not libelous, the plaintiff would not recover. Held, that the failure, in instruction for plaintiff, to inform the jury as to their constitutional right to find both the facts and the law was so modified and supplemented by the express instruction as to such right as to sufficiently present that right.

7. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — INSTRUCTIONS.

In an action for libel for a publication alleged to charge that plaintiff, a boarding house keeper, was delinquent, the court instructed that if such publication imputed that plaintiff was "unworthy of credit or of conduct which would prejudice her in her business of boarding house keeper or be injurious to her standing as a business woman," etc., together with an instruction that there was no evidence that the publication meant that plaintiff was dishonest or a deadbeat. Held, that as plaintiff was not entitled to recover if the jury believed she was unworthy of credit, the meaningless clause referring to conduct could not have prejudiced defendant as to require reversal of a judgment for plaintiff.

Brown, C., dissenting in part.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Mary E. S. Patterson against Samuel L. Evans. Judgment for plaintiff, and defendant appeals. Affirmed.

Holmes, Holmes & Page, of Kansas City, for appellant. Lyon & Lyon, of Kansas City, for respondent.

BLAIR, C.

This is an appeal from a judgment for plaintiff for $2,000 in an action for libel. Jurisdiction vests in this court by reason of the presence of a constitutional question.

The petition upon which the case was tried alleges, among other things, that defendant caused to be published in the Edgar Merchants Exchange certain words and figures which are alleged to have imputed to plaintiff unworthiness of credit and dishonesty and that she was a "deadbeat."

In defendant's abstract of record it is stated that the evidence tended to prove, among other things, that defendant, in causing such publication to be made, did so maliciously, wrongfully, without cause, and for the sole purpose of destroying plaintiff's credit and branding her to the public as a person who did not pay her debts and for the purpose of humiliating plaintiff and forcing her to pay an unjust claim; that the publication was false and known by defendant to be so; and that plaintiff's business, upon which she depended for a living, required large credit which, on account of this publication, was withdrawn and her business thereby destroyed. With respect to defendant's evidence, the abstract states merely that "defendant introduced evidence on his behalf and rested his case."

At plaintiff's request the trial court gave, among others, the following instruction: "The court instructs the jury that if they believe from a preponderance of the evidence that plaintiff was on and after June, 1907, engaged in keeping a boarding house, and that plaintiff had established a reasonable credit in said business among the business men and merchants of Kansas City, Missouri and Kansas, and was worthy of the confidence thus established, and that defendant caused to be published in the retail trade journal, known as the Edgar Merchants Exchange, in the month of June, 1907, and thereafter, of and concerning the plaintiff, the following words and figures, to wit, `82 Patterson 9 Mrs. 3129 Bell, K. C. Mo., 2552,' that the number 82, according to the rules and instructions of said publication, meant Kansas City, Mo., and the number 2552, according to the rules and instructions of said publication referred to said defendant, whose name appeared opposite that number on page 21 of said publication, that said publication all appeared under the general head of `K. C. Mo. Reported Delinquents,' and if you further believe from the evidence that said publication imputed that plaintiff was unworthy of credit or conduct which would prejudice her in her business of boarding house keeper or be injurious to her standing and credit as a business woman, then the jury will find for plaintiff, unless you further believe from the evidence that plaintiff was unworthy of credit at the time said publication was made."

It is contended that this instruction (1) "withdrew from the jury the question of libel or no libel in violation of section 14, art. 2, of the Constitution of Missouri," and (2) was erroneous because it included the words "conduct which would prejudice her in her business of boarding house keeper or be injurious to her standing and credit as a business woman."

I. Section 14 of article 2 of the Constitution provides that "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 recognition of this provision the trial court, at defendant's request, gave the following: "The court instructs the jury that in a case of this kind it can give such instructions as it deems proper, but the jury are not only the sole judges of the weight to be given to the testimony and facts, but under the Constitution and laws of Missouri you are yourselves the sole judges of the law of libel and as to whether the alleged publication was in fact libelous; and, if you find that said article complained of was not libelous, you will find for the defendant." There is therefore no complaint of a failure of the court to inform the jury of its constitutional prerogative, but the contention is that plaintiff's instruction, as set forth in the statement, is erroneous, and that the error in it was not cured by the instruction given for defendant, since, it is insisted, the two directly conflict. Questions very like that thus presented have heretofore been considered by this court and with varying results.

In Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592, the trial court had peremptorily directed a verdict for plaintiff, leaving only the amount of the damages to the jury. Defendant failed to ask an instruction to the effect that the jury were the judges of the law as well as the facts so far as the question of libel or no libel was concerned, and this court held that appellant was not, therefore, in a position to complain of the mandatory instruction.

In Minter v. Bradstreet Co., 174 Mo. 444, 496, 73 S. W. 668, 683, the trial court had instructed the jury in substance that the article was libelous in its nature, and that, if the publication was made and was untrue and imputed insolvency to plaintiff, then, unless it was found to be privileged, "defendant is liable to plaintiff for damages." Another instruction told the jury in effect that, if the publication was made, was false, and imputed insolvency to plaintiffs, then "plaintiffs are entitled to recover damages to be estimated under all the instructions in the case." Still another instruction told the jury that, if the publication was made, was false, was not privileged, and was calculated to have the effect before explained, "then you should find the issues for plaintiff." These instructions were assailed on the ground that they took from the jury the question whether the publication was libelous, thereby contravening the constitutional provision now invoked. Responding to this assignment the court said: "But defendant did not ask an instruction upon this phase of the case, nor is any such question raised in the motion for new trial and must therefore be considered as waived. This same question was before this court in Mitchell v. Bradstreet Co., 116 Mo. 226 [22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. St. Rep. 592], and it was held that while section 14, art. 2, of the Constitution, provides that...