Patterson v. Evans

• Decision Date: 03 January 1914
• Citation: Patterson v. Evans, 254 Mo. 293, 162 S.W. 179 (Mo. 1914)
• Parties: MARY E. S. PATTERSON v. SAMUEL L. EVANS, Appellant
• Court: Missouri Supreme Court

162 S.W. 179

254 Mo. 293

MARY E. S. PATTERSON v. SAMUEL L. EVANS, Appellant

Supreme Court of Missouri, First Division

January 3, 1914

Appeal from Jackson Circuit Court.-- Hon. Thomas J. Seehorn, Judge.

Affirmed.

Holmes Holmes & Page for appellant.

(1)This court has jurisdiction of this appeal, as the constitutional question is lodged herein of the construction of Sec. 14, article 2 of the Constitution of Missouri.Williams v. Railroad,233 Mo. 666;Hanlon v Pulitzer Co.,167 Mo. 124;Creve, etc., Co. v Tamm,138 Mo. 387;Logan v. Field,192 Mo. 66.(2)Plaintiff's instruction 1 erroneously withdrew from the jury the question of libel or no libel, in violation of Sec. 14, art. 2 of the Constitution of Missouri.Heller v. Pub. Co.,153 Mo. 205;State v. Simpson,136 Mo.App. 664;Grimes v. Thorp,113 Mo.App. 652;Diener v. Chronicle Co.,230 Mo. 613;Sands v. Marquardt,113 Mo.App. 495.(3)Plaintiff's instruction 1 erroneously permitted the jury to attribute to the publication a meaning not ascribed thereto in the petition or proof, and therefore not within the issues.Patterson v. Evans,153 Mo.App. 684;Bank v. Armstrong, 62 Mo. 66.

Lyon & Lyon for respondent.

(1)Plaintiff's instruction 1 did not withdraw from the jury the question of libel or no libel in violation of Sec. 14, art. 2 of the Missouri Constitution, and even if it did, defendant is estopped to complain because his instructions D-14 and D-16 were guilty of the same error and are practically the converse of plaintiff's instruction 1.Mitchell v. Bradstreet Co.,116 Mo. 226;Minter v. Bradstreet Co.,174 Mo. 444;Harrington v. Sedalia,98 Mo. 583;Reilly v. Railroad,94 Mo. 600;Gordon v. Park,219 Mo. 600;Stevens v. Crane,116 Mo. 408;Greggs v. Land & Mining Co.,97 Mo.App. 44;Bridge Co. v. Brewing Assn.,129 Mo. 343;State v. Haines,160 Mo. 555;Cook v. Printing Co.,227 Mo. 471, 538;McGonigle v. Daugherty,71 Mo. 259;Davis v. Brown,67 Mo. 313;Bank v. Armstrong,92 Mo. 265;Ellis v. Railroad,234 Mo. 657;Lange v. Railroad,208 Mo. 475;Smart v. Kansas City,208 Mo. 162;Church v. Railroad,119 Mo. 203;Riggs v. Railroad,216 Mo. 304;McMullen v. Railroad,60 Mo.App. 238;Richardson v. Marceline,73 Mo.App. 360;Overstreet v. Street,154 Mo.App. 546;Bank v. Stewart,160 Mo.App. 643;McCloskey v. Railroad,162 Mo.App. 583.(2) It was proper to insert in plaintiff's first instruction "that 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," etc. (a)Plaintiff's instruction on this point has been expressly approved.Minter v. Bradstreet Co.,174 Mo. 444;Patterson v. Evans,153 Mo.App. 684;Julian v. Star Co.,209 Mo. 90.(b) Even if this part of plaintiff's instruction 1 was error it was in defendant's favor and he cannot complain.Patterson v. Evans,153 Mo.App. 684;Mitchell v. Bradstreet Co.,116 Mo. 226;Harrington v. Sedalia,98 Mo. 583;Seawell v. Fort Scott Co.,119 Mo. 223;Paretti v. Rebenback,81 Mo.App. 494;Cook v. Printing Co.,227 Mo. 471;Brown v. Printing Co.,213 Mo. 611;Berry v. Railroad,214 Mo. 593;McHugh v. Transit Co.,190 Mo. 85;Summers v. Insurance Co.,90 Mo.App. 702.(c) As defendant has not brought up all the evidence in this casehe cannot assert that this part of plaintiff's instruction was not confined to the proof.Phelps v. Zinc & Lead Co.,218 Mo. 581;State v. Brown,75 Mo. 317;State v. Sevils,105 Mo. 530.(d) As the publication is libelous per se, no innuendo is necessary and if one is given it may be rejected as surplusage and hence our petition is broad enough to cover this part of our instruction.Patterson v. Evans,153 Mo.App. 684;Callahan v. Ingram,122 Mo. 355;Minter v. Bradstreet Co.,174 Mo. 445;Dobbin v. Railroad,157 Mo.App. 689;Hudson v. Garner,22 Mo. 423;Pub. Co. v. Trade Journal,108 Mo.App. 223.(e) The publication being libelous per se, no evidence as to the meaning of the publication was necessary and plaintiff had a right to fall back on the publication itself taken in its natural meaning in connection with other parts of the journal without the aid of extrinsic evidence.Patterson v. Evans,153 Mo.App. 684;Minter v. Bradstreet Co.,174 Mo. 444;Julian v. Star Co.,209 Mo. 90;Academy v. Gaiser,125 Mo. 517.(3) The verdict in this case was for the right party and should not be disturbed, for a new trial to defendant could only result in another verdict for plaintiff.R. S. 1909, sec. 2082;Stauffer v. Railroad,243 Mo. 305;Moore v. Railroad,176 Mo. 545;Orth v. Dorschlein,32 Mo. 366;Mockowik v. Railroad,196 Mo. 550;Peterson v. Transit Co.,199 Mo. 331;Crocker v. Mann,3 Mo. 473;Gillespie v. Hendren,98 Mo.App. 622;Wear v. McCorkle,1 Mo. 588;Ittner v. Hughes,133 Mo. 679;Homuth v. Railroad,129 Mo. 629;Fritz v. Railroad,243 Mo. 62;Cook v. Printing Co.,227 Mo. 471;Lipscomb v. Talbott,243 Mo. 1;Berry v. Railroad, 214 Mo. 593.

BLAIR, C. Bond, J., concurs in the result only.

OPINION

BLAIR, C. --

This is an appeal from a judgment for plaintiff for $ 2000 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 plaintiffs' 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 Patterson9 Mrs. 3129Bell, 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, article 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. 358the 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...