State v. Ellison

• Decision Date: 03 December 1917
• Docket Number: No. 20055.,20055.
• Parties: STATE ex rel. BYRNE v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

199 S.W. 403

STATE ex rel. BYRNE v. ELLISON et al., Judges.

No. 20055.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Certiorari by the State, on the relation of Ulysses Byrne, against James Ellison and others, Judges of the Kansas City Court of Appeals, to bring for review a judgment of such court in the case of Byrne v. News Corporation, 190 S. W. 933, reversing a judgment of the Buchanan circuit court. Writ quashed.

Randolph & Randolph, of St. Joseph, for petitioner. Lucian J. Eastin, of St. Joseph, for respondent Robert I. Young. Culver & Phillip, of St. Joseph, for News Corp.

BROWN, C.

This is certiorari to the judges of the Kansas City Court of Appeals to bring to this court for examination and review a judgment of the said Court of Appeals reversing a judgment of the Buchanan circuit court in a cause in which Ulysses S. Byrne was plaintiff and News Corporation and Robert I. Young were defendants and appellants, and remanding said cause for a new trial. 190 S. W. 933. The writ was allowed upon the allegation that the Court of Appeals, in rendering said judgment, was not controlled by the authority of the last preceding rulings of this court on certain questions of law, which were decided therein, but certain of its decisions were contrary to such rulings. That the writ lies in such cases is now the settled doctrine of this court and needs no further examination. State ex rel. v. Robertson, 264 Mo. 661, 175 S. W. 610, and cases there cited; State ex rel. Miles v. Ellison, 269 Mo. 151, 190 S. W. 274; State ex rel. Delano v. Ellison, 181 S. W. 78; State ex rel. Petigo v. Robertson, 181 S. W. 987; State ex rel. Iba v. Ellison, 256 Mo. loc. cit. 666, 165 S. W. 369.

The suit was for damages for libel published in the News-Press, a newspaper published and printed at St. Joseph, in this state, in the form of a communication signed by the defendant Young in which the libelous words charged in the petition to have been written and published of and concerning the plaintiff are as follows:

"I am not a `hoss' man and know nothing about that department, but the superintendent of the swine department was a hummer. There is a number of forged pedigrees of hogs in the secretary's office to his credit, and swine breeders were disgusted. Why place such a man in such a position?"

The entire communication, which was quite long, was published in the issue of the News-Press of September 18, 1914. Both the publication and authorship of the communication were admitted in the separate answers of the respective defendants, and each of them contained a general denial of "each and every other allegation in the petition contained." There were no other denials in either answer. The defendant corporation pleaded at length the good character, reputation, and financial standing of defendant Young, that it believed what he wrote, which did not mention the name of the plaintiff, and published it as requested by Young without any intention or desire to libel plaintiff and without malice and without knowledge or information that plaintiff was the person referred to in the publication or that said publication meant to or did charge the plaintiff with any of the things alleged in the petition. It also contained the following words:

"For a further answer and defense this defendant says that in the publication of the said words complained of by plaintiff, to wit, there is a number of forged pedigrees of hogs in the secretary's office to his credit, defendant wrote and published what was substantially true."

The answer of Young contains the same plea of the truth of the matter published in practically the same words.

Before proceeding to consider the points before us on this writ, it is necessary to determine what they are with reference to our constitutional jurisdiction. The last clause of section 6 of the constitutional amendment of 1884 provides that:

"The last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals."

Section 8 of the same amendment gives this court "superintending control over the courts of appeals by mandamus, prohibition and certiorari." These are the writs by which the Courts of Appeals may be required by this court: (1) To proceed to exercise its jurisdiction; (2) to prevent them from acting without jurisdiction; and (3) to require them to exercise their jurisdiction in accordance with their constitutional powers. It is under the last named of these that we are now proceeding to ascertain whether or not the Court of Appeals has disregarded the constitutional mandate that it shall be controlled by the last previous ruling of this court on any question of law or equity which it may be called upon, in the exercise of its jurisdiction, to determine.

It will be observed that this provision does not apply to questions of fact, but only to the legal and equitable rules governing their ascertainment and application. While by the previous portion of section 6 we are required to take jurisdiction of such cases as may be certified and transferred to us by the Courts of Appeals and to rehear and determine the same, we have no such jurisdiction under the last clause. In all matters which do not come within its terms their jurisdiction is final; so that upon this writ our jurisdiction is limited to the single question whether or not, in the matter brought before us, they have failed to follow our last preceding announcement of the law. State ex rel. v. Ellison, 196 S. W. 1140. In this case the writ has been issued upon the allegation that they have failed to do this in four particulars to which our examination will be confined.

We are properly invited by petitioners to look at its opinion, which is in this record for that purpose, to ascertain what the Court of Appeals decided. State ex rel. v. Robertson, supra; State ex rel. Iba v. Ellison, supra; State ex rel. Petigo v. Robertson, supra; State ex rel. Miles v. Ellison, supra.

The suit, as we have already said, is for libel alleged to have been written and published of and concerning the plaintiff. The judgment was for $5,000 ($1,000 actual and $4,000 punitive damages). One of the grounds upon which it was reversed, and which the relator insists is contrary to a last preceding decision of this court, is stated in the opinion as follows:

"The jury should have been required to find that the readers of said article understood that it referred to plaintiff. If they did not understand that plaintiff was the superintendent mentioned, then there was no libel as to him. For the `gravamen of an action for libel is not injury to the plaintiff's feelings, but damage to his reputation in the eyes of others. It is not sufficient, therefore, that the plaintiff should understand himself to be referred to in the article.' * * *"

Plaintiff's first instruction, however, covered the case, and authorized a verdict without requiring the jury to find that the readers of the article so understood it. It reads:

"The court instructs the jury that it stands admitted in this case that the defendants made the publication set out in the plaintiff's petition of and concerning the plaintiff. Therefore the court instructs the jury that, if they find and believe from the evidence that the publication complained of is false and libelous, they should return a verdict for the plaintiff; and the jury are further instructed that in determining the amount of actual damages sustained by the plaintiff, if any, you will take into consideration such injury, if any, as was naturally and probably done to the plaintiff's reputation, and to his business and character, and such damages as he may have suffered because of mental anguish, shame, and humiliation, if any, you believe he has suffered by reason of such publication."

The petition for the writ then proceeds as follows:

"After quoting said instruction, the court say that there must be some proof that third persons understood its actual meaning, and also understood to whom the words applied, citing 25 Cyc. 362, 452, 453; Wisner v. Nichols, 165 Iowa. 15, 143 N. W. 1020, 1025; De Witt v. Wright, 57 Cal. 576. They further say: `We do not understand that, because plaintiff said his attention was called to the article, this supplied that proof, but, if it did, the jury should still be allowed and required to pass on the matter.' Then follows this anomalous paragraph; `Nor did the defendants, either by their respective answers or in the course of trial or by their proof, concede that the readers of said article would understand it as applying to plaintiff. These things had no reference whatever to the construction the readers would put on the article or their understanding as to who was meant. Consequently we are of the opinion that instruction No. 1 for plaintiff was erroneous.'

"All of the foregoing refers to that part of said instruction which told the jury that `it stands admitted in this case that the defendants made the publication set out in the plaintiff's petition of and concerning the plaintiff.'

"The holding of the Court of Appeals, as above shown, is in direct conflict with Stieber v. Wensel, 19 Mo. 513; Atwinger v. Fellner, 46 Mo. 276; McGinnis v. Geo. Knapp & Co., 109 Mo. 131 . And also in conflict with section 1837 of the Revised Statutes of Missouri, 1909; Cook v. Globe Printing Co., 227 Mo. loc. cit. 538 ."

This constitutes the first ground upon which our interference with this judgment is asked. Did we have the whole case before us it would suggest interesting questions for our determination. But when we consider that the cause is within the appellate jurisdiction of the Kansas City Court of Appeals, which had the same jurisdiction to commit error as we have in the effort to reach a final determination in controversy within our constitutional jurisdiction, and that our function is limited to the inquiry whether that court has, in its...