Skain v. Weldon

• Decision Date: 11 December 1967
• Docket Number: No. 52550,No. 2,52550,2
• Citation: Skain v. Weldon, 422 S.W.2d 271 (Mo. 1967)
• Parties: Richard P. SKAIN, Appellant, v. William WELDON et al., Respondents
• Court: Missouri Supreme Court

Page 271

422 S.W.2d 271

Richard P. SKAIN, Appellant, v.William WELDON et al., Respondents.

No. 52550.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 8, 1968.

James E. Conway, Boonville, Robert D. Kingsland, Jefferson City, Cullen Coil, Jefferson City, for appellant, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.

Lon Hocker, St. Louis, for respondents.

BARRETT, Commissioner.

In this libel action in which Dr. Richard P. Skain, a dentist, and in September 1964 also a member of the City Counsel of Jefferson City, sought $50,000.00 actual and $200,000.00 exemplary damages, a jury returned a verdict for the defendants and he has appealed.The sole assignment of error by Dr. Skain is that instructions 7 and 8 are manifestly erroneous and prejudicial and that therefore he is entitled to a new trial.The defendants are News Tribune Company, publisher of The Sunday News and Tribune newspaper, and Jefferson Television Company, then the corporate owner of television station KRCG, and Mr. William H. Weldon, then president of both corporate defendants and, admittedly, the author of the editorial complained of in this action.The controversy, the publishing of the editorial and this suit, arose out of Dean Lupkey's attempt in September 1964 to secure a cable television franchise from Jefferson City and is a companion case to Lupkey v. Weldon, Mo., 419 S.W.2d 91.The fundamental difference in the two cases is that in Mr. Lupkey's case reliance was on the accompanying news article as well as upon the editorial in the Sunday, September 20, 1964, issue of 'The Sunday News and Tribune' and basically the defense in that suit was truth while here the defenses are (1)'that the editorial condemnation could not be reasonably considered to refer to the plaintiff' and (2) that there was no proof of actual malice, Dr. Skain being a public official, and therefore there was no right of recovery under the doctrine of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.And for these latter reasons the respondents contend that plaintiff'failed to prove a case for relief' and that therefore any error in instructions is immaterial thus compelling, if the instructions are prejudicially erroneous, some consideration of the substantive law of libel and at least in part this cause upon its essential merits.

Given instructions 7 and 8, prepared and offered by the respondents, are as follows:

'InstructionNo. 7.

'The Court instructs the jury that it is the right of the defendants to comment on matters of public interest, and this means the right to express opinions as to the acts of a public officer and to draw inferences as to his motives, whether such opinions or inferences are right or wrong, reasonable or unreasonable, provided they are made in good faith and based upon the truth.'

'InstructionNo. 8.

'And even if you find that any statement of fact, on which comment or inferences were based, was untrue, and derogatory of the plaintiff, yet plaintiff, being a public official, cannot recover any damages unless he proves that the statement was made with actual malice--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'

There are no specifically applicable MAI pattern instructions but the appellant contends that as adaptations they not only violate the spirit and theory of MAI they plainly violate CivilRule 70.01(e), V.A.M.R.'where there is no applicable MAI so that an instruction not in MAI must be given, then * * * such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.'And in this connection the appellant suggests what he considers appropriate and proper adaptations of certain pattern instructions, for exampleMAI 28.09.There are numerous objections to these instructions but basically the appellant objects that they are 'highly argumentative, the language was favorable to defendants and the instructions did not submit ultimate issues in the simple manner ultimate issues are submitted in Missouri Approved Instructions.'

It is true that the subject matter of these instructions is not specifically covered by MAI, neither as the respondents suggest are they'an effort to 'improve' an MAI form' as was true in several of the cited cases.Noting only briefly in this posture the respondents say that the instructions should be considered together, that it was only because of the plaintiff's position that it was made 'impossible to cast these two instructions in the style typical of MAI' thus tacitly conceding it would seem that at least technically they do not measure up to MAI standards.They say, however, that 'prejudicial effect is to be judicially determined'(Civil Rule 70.01(c)) and that these instructions are not erroneous as a matter of law.And finally respondents urge that 'what defendants submitted in instruction 7 was the defense of fair comment on actions by public officials, i.e., the rule of law promulgated in the Cook case;'(Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480).As a matter of fact instruction 7 is a single sentence lifted from the court's general discussion of the 'right to comment' on the conduct of public officials (241 Mo. l.c. 354, 145 S.W. 480) but 'Instructions should not incorporate a discourse on general principles of law'(Taylor v. Commerce Trust Co., Mo.App., 319 S.W.2d 895, 897), or, as was said in Dill v. Dallas County Farmers' Exchange No. 177, Mo., 267 S.W.2d 677, 680, 'mere abstract statements of law do not make proper verdict-directing instructions.'

It is not necessary to further set forth and explore the contentions of the parties, it requires no analysis to demonstrate that instruction 7 is but an abstract, abstruse statement with no factual or other specific relevance to any determinative fact or issue directly involved in the trial of the merits of this cause.It is obviously argumentative--a lecturing type instruction--and it does not direct a verdict or require a jury finding, negatively or affirmatively, of any fact essential to the cause or of any issue involved in the cause.The instructions need not be further characterized, the parties are represented by able, experienced counsel and it is not necessary to indicate just what specific instructions should be given, it is sufficient in disposition of this appeal to say, as plainly indicated by the rationale of the very recent decisions of Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255andMurphy v. Land, Mo., 420 S.W.2d 505 that instruction 7 or 8 is not within either the spirit or form of the philosophy and purpose of MAI and is manifestly and prejudicially erroneous and demands the granting of a new trial.While dealing with modifications or attempts to improve upon applicable pattern instructions consider also the rationale of Hunter v. Norton, Mo., 412 S.W.2d 163;Reckert v. Roco Petroleum Corporation, Mo., 411 S.W.2d 199;Motsinger v. Queen City Casket Co., Mo., 408 S.W.2d 857andLeathem v. Longenecker, Mo., 405 S.W.2d 873, 876--877.

Upon the merits of the cause the respondents do not claim that the editorial is not libelous, even libelous per se, and necessarily they do not rely on truth as a defense as they did in the Lupkey case.Since there is no denial of its defamatory character only so much of the editorial is set out as is necessary to an understanding of the respondents' specific claims that plaintiff failed to make a case for relief in that, one, as a matter of law the publication complained of did not refer to plaintiff, and, two, no malice was proved within the meaning of New York Times Company v. Sullivan.Bearing in mind that Dr. Skain was a member of the city council, the libelous editorial contained this paragraph:

'All nine councilmen have been contacted by News-Tribune reporters and only Mr. Hawes, Mr. Kliegel and Mr. Debo have stated that they will oppose waiving of the rules, which would allow execution of the Lupkey scheme.'

As a matter of fact the City Council of Jefferson City consists of ten councilmen and there were ten council members until Saturday afternoon, September 19, 1964, the day before the editorial was to appear.In truth Mr. Weldon had written the editorial and it was ready for front page printing in Sunday's paper when he learned of Councilman Jobe's death (notice of which together with his photograph also appeared on the front page of the Sunday edition).Because of Mr. Jobe's death Mr. Weldon rewrote the editorial, of necessity changing references to the number of councilmen.On behalf of the respondents Mr. Weldon now claims that deducting from 'all nine councilmen' the three named councilmen, Hawes, Debo and Kliegel, that 'nine,' or the remaining six did not include and refer to the appellant Dr. Skain although he was not specifically...