State v. Ellison

• Decision Date: 22 December 1917
• Docket Number: No. 20080.,20080.
• Citation: 200 S.W. 433
• Parties: STATE ex rel. NATIONAL NEWSPAPERS' ASS'N v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

200 S.W. 433

STATE ex rel. NATIONAL NEWSPAPERS' ASS'N v. ELLISON et al., Judges.

No. 20080.

Supreme Court of Missouri. In Banc.

December 22, 1917.

Rehearing Denied January 19, 1918.

Certiorari by the State, on the relation of the National Newspapers' Association, a corporation, against Hon. James Ellison and others, Judges of the Kansas City Court of Appeals. Writ of certiorari (192 S. W. 129) ordered quashed.

Frank M. Lowe, of Kansas City, for relator. Hadley, Cooper, Neel & Wright, of Kansas City, for respondents.

BOND, J.

The writ of certiorari was sued out in this case to quash the judgment of the Court of Appeals (192 S. W. 129), upon the theory, from which I personally dissent, that the jurisdiction of that court, otherwise full and complete as to questions and subject-matter, was lost eo instanti when it rendered a decision contrary to the last previous ruling of this court.

The contention of relator is that the judgment of the Court of Appeals is in conflict with the ruling of this court, in that the opinions of the three judges of the Court of Appeals upon which the judgment was based held that there was no error, or harmless error only, in an instruction reviewed. Upon the trial of the case in the circuit court plaintiff had judgment for $1,500. A new trial was granted by the successor of the judge who tried the case originally "on account of errors in plaintiff's instructions." An appeal was taken therefrom by plaintiff to the Kansas City Court of Appeals, which reversed the ruling of the trial court and directed the entry of a judgment for plaintiff upon the verdict of the jury. A motion for rehearing was sustained and the cause argued again, and an opinion written by Judge Ellison, concurred in by his associates in separate opinions, reversing again the ruling of the trial court and directing the reinstatement of the verdict for plaintiff. The effect of these three opinions was to rule that there was no error in the giving of any instructions by the trial court on behalf of plaintiff. The contention now made is that the error of the trial judge related to the giving of the following instruction:

"The jury are instructed that in this case the defendant pleads justification; that is, declares the statements contained in the publication complained of are true of and concerning the plaintiff. Under this plea, it is defendant's duty to prove the truth of the statements in the publication complained of in plaintiff's petition. And it is not sufficient for defendant to prove the truth of merely a portion of the statements contained in the publication complained of. Even though the defendant proved the truth of a portion of said publication, yet your verdict should be against defendant's plea of justification if you find from the evidence that it has failed to prove any material statement in the publication complained of, providing such statement is found by you from the evidence to be false and a libel upon plaintiff."

It is insisted that by the giving of the above instruction the trial court assumed a disputed fact, i. e., that the publication complained of referred to the plaintiff. In support of that contention relator cites its answer on the trial, to wit:

"Comes now defendant and for its second amended answer to plaintiff's petition admits that it is a corporation organized under the laws of the state of Colorado, and that it is engaged in printing and publishing at Kansas City the newspaper known as the Kansas City Post. Defendant also admits that it published in its newspaper of August 24, 1910, the article set out in plaintiff's petition, but defendant denies that said article was false or defamatory, or that it was a libel upon plaintiff in any sense, and denies each and every other allegation in plaintiff's petition contained. Wherefore, having fully answered, defendant asks to be hence discharged, with its costs.

"(2) Further answering plaintiff's petition, defendant says that said article so published by it is substantially true in so far as it refers to plaintiff; that is, it is true, as stated in said article, that plaintiff did maintain a baby farm at 1735 Washington street, and that because of the smallness of said house plaintiff moved to 1515 Harrison street, Kansas City, Mo., and there lived on the third floor in said building and continued to conduct a baby farm at said number, and that she was on the 23d day of August, 1910, arrested and taken to the police station in Kansas City, Mo., and on the morning of the 24th of August, 1910, she was arraigned in said police court, and required to give a bond in the sum of $500, which she did, for her appearance for trial at a future date; that at the time of her arrest she had in her possession and under her control in her home four babies, for which she was receiving $2 per day for their care and keeping; that she then and there denied that she knew anything about any babies having been found dead in any sewers in Kansas City, and that she then and there disclaimed that anything was wrong, but that she had no license at any time to so maintain or conduct such baby farm, and that she made no report to any health board as to the babies under her charge. Wherefore, having fully answered, defendant asks to be hence discharged with its costs.

"(3) Further answering plaintiff's petition, defendant says that the statement published by it in said article regarding the arrest and arraignment and giving of bond of said plaintiff was a fair and true statement of what transpired in public court and under the law was privileged, and that this defendant is not liable for having published said facts. And defendant further alleges that if plaintiff has suffered any damages or injury because of the circulation or publication of said report, which this defendant denies, then such damages or injury was caused by her arrest and arraignment in a public court, and not by any publication made by this defendant. Wherefore, having fully answered, defendant asks to be hence discharged with its costs."

The following quotations from the opinions of the judges on rehearing will disclose how the contention of relator was disposed of. Judge Ellison, delivering the opinion of the court, said:

"A reconsideration of this case has left us convinced that our disposal of it at the other hearing was correct. But as defendant insists that the opinion rendered at that time approves plaintiff's instruction No. 2, and that said instruction wrongly affirms that defendant by its answer had admitted that the publication was of and concerning the plaintiff, when in fact the answer did not make such admission, we will add the following to what has been said: Defendant's answer in the respect here involved is not as clear as could be wished. It, in terms, admits it published the article as set out in the petition, but denies that it was false or defamatory, or that it was a libel on plaintiff, `and denies each and every other allegation in plaintiff's petition,' and `that said article so published by it is substantially true in so far as it refers to plaintiff; that is, it is true, as stated in said article, that plaintiff did maintain a baby farm,' etc., setting out a small part of the publication which defendant insists was all which concerned the plaintiff. Instruction No. 2 does state, in effect, that defendant pleads, or admits, that all the statements in the publication are true, and that they were made of and concerning the plaintiff. So this last clause, thus embodied in the instruction is erroneous; for it, in effect, states that defendant admits that the whole article was of and concerning the plaintiff.

"But there is no rule oftener stated than that, though an instruction contain error, the judgment will not, for that reason, be reversed if it be manifest that the error was harmless.

"It is clear that, notwithstanding ...