Roney v. Organ
| Decision Date | 11 December 1913 |
| Citation | 161 S.W. 868,176 Mo.App. 234 |
| Parties | WILLIAM W. RONEY, Appellant, v. JOHN E. ORGAN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Shannon County Circuit Court.--Hon. W. N. Evans, Judge.
REMANDED (with directions).
J. D Gustin and Wm. P. Elmer for appellant.
The verdict and judgment for exemplary damages is good, although no actual or nominal damage is given. The only party to the record who could question a verdict of this kind is the plaintiff. The defendant is in no position to raise any objection to it. He cannot complain the verdict is for less than it should be. Lampert v. Drug Co., 141 S.W 1097, and cases cited; Hoagland v. Amusement Co., 170 Mo. 345; Ferguson v. Publishing Co., 72 Mo.App 462; Adams v. Frisco, 130 S.W. 50.
G. C Dalton, A. J. Arthur and Robert Lamar for respondent.
(1) At least nominal damages must be found to warrant recovery of punitive damages. Brennan v. Paul, 83 S.W. 283, 108 Mo.App. 336; Hoagland v. Amusement Co., 170 Mo. 335. (2) Punitive damages may be awarded in a legal action, though only nominal damages are recovered. Lampert v. Drug Co., 141 S.W. 1097, 238 Mo. 412; Miller v. Taylor, 85 Mo.App. 115; Brennan v. Paul, 83 S.W. 283, 108 Mo.App. 336. (3) The trial court was on the ground, heard all of the testimony, both pro and con and observed the appearance of the witnesses and knows better than anyone else what justice is in this case. Discretion in granting a new trial means an honest attempt, in the exercise of judicial duty, to see that justice is done to establish a legal right. Johnson v. Grayson, 130 S.W. 673, 230 Mo. 380.
Action for libel filed in the Dent county circuit court. Change of venue to Shannon county. Trial by jury and verdict for plaintiff for one hundred dollars 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, Missouri, 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 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, wilfully and maliciously made and circulated as aforesaid to the great damage of the plaintiff. Actual damages in the sum of ten thousand dollars and exemplary damages in the sum of ten thousand dollars 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:
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, 472, 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 & Green, 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 Mo.App. 317, 320, 85 S.W. 929.]
Section 1850, Revised Statutes 1909, requires the trial court in every stage of the action to disregard any error or defect in the proceedings which shall not affect the substantial rights of the adverse party.
In the case of Lampert v. Drug Co., 238 Mo. 409, 141 S.W 1095, our Supreme Court said: "The concensus of authority is to the effect that punitive damages are not recoverable where no actual damages are allowed." And it was held in that case, as it has been in other Missouri cases, that exemplary damages are recoverable where there are allowed only nominal actual damages. Thus, in Favorite v. Cottrill, 62 Mo.App. 119, the verdict was for one dollar compensatory damages and a large sum as exemplary damages, and in Ferguson v. Chronicle Pub. Co., 72 Mo.App. 462, the verdict was for one cent actual damages and three hundred dollars as exemplary damages. In Mills v. Taylor, 85 Mo.App. 111, no actual damages were assessed in the verdict, the finding being for the plaintiff accompanied by an assessment of exemplary damages in the sum of five hundred dollars. When the verdict was returned the plaintiff requested the court to give to the jury a further instruction directing it to retire and correct its verdict by further finding for the plaintiff nominal actual damages. The appellate court held that the trial court erred in refusing to direct the jury to correct its verdict for the reason that in...
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