Roney v. Organ

• Citation: 176 Mo. App. 234,161 S.W. 868
• Parties: RONEY v. ORGAN.
• Decision Date: 11 December 1913
• Court: Missouri Court of Appeals

161 S.W. 868

176 Mo. App. 234

RONEY v. ORGAN.

Springfield Court of Appeals. Missouri.

December 11, 1913.

1. APPEAL AND ERROR (§ 867)—REVIEW— GRANTING NEW TRIAL.

In determining whether the trial court erred in granting defendant a new trial, the appellate court must decide, not whether defendant could complain of the verdict on appeal, but rather whether the new trial was granted for good cause shown.

2. APPEAL AND ERROR (§ 854)—HARMLESS ERROR —ERRONEOUS REASON.

The appellate court will not reverse an order granting a new trial because it specifies an erroneous reason for such action, if other valid reasons raised by the motion exist, but the burden is on respondent to show such other reasons.

3. LIBEL AND SLANDER (§ 7)—CONSTRUCTION.

A bare statement that one has sworn falsely in court imputes the crime of perjury.

4. LIBEL AND SLANDER (§ 7)—WORDS ACTIONABLE PER SE.

A charge of perjury is actionable per se, the law implying damage from such a charge.

5. LIBEL AND SLANDER (§ 33)—DAMAGES— WORDS ACTIONABLE PER SE.

The law presumes that damage results from the publication of words actionable per se.

6. APPEAL AND ERROR (§ 1170)—VERDICT— ACTUAL DAMAGES—NECESSITY OF FINDING.

A new trial should not be granted to defendant in an action for libel for charging perjury, because the verdict for plaintiff only found exemplary damages for him, without mentioning actual damages, in view of Rev. St. 1909, § 1850, requiring the court to disregard defects not affecting the substantial rights of the parties.

7. EVIDENCE (§ 82)—PRESUMPTIONS—OFFICIAL DUTY.

It is presumed that the courts will pursue the proper course if their power is properly invoked.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by William W. Roney against John E. Organ. From an order sustaining a motion for a new trial after verdict for plaintiff, he appeals. Reversed and remanded, with directions to reinstate judgment rendered on the verdict.

Wm. P. Elmer and J. D. Gustin, both of Salem, for appellant. G. C. Dalton and A. J. Arthur, both of Salem, and Robt. Lamar, of Houston, for respondent.

FARRINGTON, J.

Action for libel filed in the Dent county circuit court. Change of venue to Shannon county. Trial by jury, and verdict for plaintiff for $100 exemplary damages, nothing being said in the verdict as to actual damages. The circuit court granted defendant a new trial, specifying as the reason that the form of the verdict was erroneous. Plaintiff appealed from the order sustaining the motion for a new trial.

In his petition, the plaintiff alleges that he is now and for a long time has been a resident of Salem, Dent county, Mo., and that the defendant is a resident of the same place, and engaged in publishing a newspaper called "The Salem Monitor" which has a circulation in Dent county and several other counties in Missouri and in various states; that plaintiff was sworn as a witness and testified in the trial of an action in the circuit court of Shannon county, wherein the city of Salem, at the relation and to the use of William W. Roney and Jesse Ward, was plaintiff, and W. W. Young was defendant, in September, 1911; that said defendant in said action, W. W. Young, advised and procured the defendant herein to publish, and that the defendant herein did publish, in The Salem Monitor certain false, defamatory, malicious, and libelous language of and concerning the plaintiff, to wit: "The case of the city of Salem against W. W. Young on tax bill for building a sidewalk was tried before a jury in circuit court in Shannon county last week and resulted in a verdict for the city. A motion for a new trial was made and a notice of an appeal to the state Supreme Court was filed. The verdict of the jury was probably influenced by the false testimony of one of the witnesses interested in the suit, and the April grand jury may investigate. This case was first decided in favor of Young here, Harry-Clymer, special judge, but reversed and remanded by the Springfield Court of Appeals, and the end is not yet." The petition then averred that the person referred to in said publication was the plaintiff herein, and that it was so intended by the defendant, and that the readers of said newspaper should understand that the person referred to was the plaintiff, and that it was understood by the readers of said newspaper that the person referred to in said publication was the plaintiff. It is then alleged that said publication tends to expose plaintiff to public contempt and ridicule and deprive him of the benefits of business and social intercourse, and charges him with having committed the crime of perjury; that the publication was wantonly, willfully, and maliciously made and circulated as aforesaid, to the great damage of the plaintiff. Actual damages in the sum of $10,000, and exemplary damages in the sum of $10,000 constitute the prayer.

As the case stands in this court, it is unnecessary to set out the answer or reply. The evidence and instructions are not contained in the abstract. The judgment is copied in the abstract, and in the judgment is recited the verdict, as follows: "We, the jury, find the issue for the plaintiff in the sum of $100.00 as an exemplary damage against J. E. Organ, H. C. Adair, Foreman."

Our question: Did the trial court commit reversible error in granting defendant a new trial? In answering this question, we are required to decide, not whether the defendant could complain of the verdict in this court, which was a question for decision in the case of Adams v. Railroad, 149 Mo. App. 278, 130 S. W. 48, but rather, whether the trial court granted a new trial for good cause shown.

The order granting a new trial states a specific reason, to wit, "that the form of the verdict is erroneous." The respondent, as the record is presented to us, has accepted this as being the only ground assigned for granting a new trial. He has not shown, as he might have done, that even though the trial court assigned a wrong reason for its action, yet there were errors committed during the course of the trial warranting the order granting a new trial. This court will not reverse an order granting a new trial which specifies a wrong reason when it is shown that other valid reasons—complained of in the motion for a new trial—actually exist. Hewitt v. Steele, 118 Mo. 463, 473, 24 S. W. 440; Morelock v. Railway Co., 112 Mo. App. 640, 644, 87 S. W. 5. But the burden is upon the respondent to show such other valid reasons. It is intimated in respondent's brief that the court granted the new trial because the verdict was against the weight of the evidence. The trial court had an undoubted right to do this, but the record presented to us shows it did not act on that ground, and neither the motion for a new trial nor the evidence are before us. Had this record shown that the order was based on the weight of the evidence, or any other ground assigned in the motion for a new trial which would be a valid reason to support the order, we would not disturb it, in the absence of an abuse of discretion. But as the case is presented here, the order granting the new trial must stand or fall on the ground specified in the order, "that the form of the verdict is erroneous," and if that is found to be untenable, the order must be set aside.

The cases of Morrison Mfg. Co. v. Roach & Greene, 104 Mo. App. 632, 637, 78 S. W. 644, and Ensor v. Smith, 57 Mo. App. 584, 589, hold that it is the duty of the appellant to bring up the whole record, so that the court may see that there is no reason assigned in the motion for a new trial justifying the court in sustaining it, and that in the absence of such showing the appellate court will presume there was sufficient reason. The two cases last cited, however, cannot be recognized as authority, since the Supreme Court has placed such burden upon the respondent. See Crawford v. Stockyards Co., 215 Mo. 394, 402, 114 S. W. 1057; Millar v. Madison Car Co., 130 Mo. 517, 31 S. W. 574; Dale & Bennett v. Mining Co., 110...