176 Mo. App. 234 | Mo. Ct. App. | 1913
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 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
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 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
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 hew 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 & 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 rea
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. l. c. 415, 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 finding the issues for the plaintiff the jury found
There is no doubt under the authorities that to-say one has sworn falsely in a court of justice, without more, carries an imputation of perjury. [Krup v. Corley, 96 Mo. App. l. c. 647, 69 S. W. 609; Perselly v. Bacon. 20 Mo. 331.] The charge of perjury is actionable per se. [Brown v. Knapp & Co., 213 Mo. l. c. 682, 112 S. W. 474.] In the case just cited, it is said (1. c. 691): “Words charging another with a commission of a crime as heinous as perjury are actionable although they do not set forth the particulars of the offense in language necessary to make a good indictment. ’ ’ The law presumes damage from the publication of words actionable per se. [Vanloon v. Vanloon, 159 Mo. App. 255, 140 S. W. 631.] In the case at bar, the jury did find for the plaintiff, and in so doing found that the defendant had published the libel,, and -upon -that finding the plaintiff was entitled to have actual damages assessed in his favor, the libel being of that character from which the Taw implies such damages. [Courtney v. Blackwell, supra, l. c, 277.] The rule that punitive damages cannot be recovered in the absence of an allowance of some actual damages—at least nominal actual damages—would seem from the decisions in this State to rest upon the principle that there can be no punitive damages in the absence of a cause of action which would warrant the awarding of at least nominal actual damages. Otherwise stated: Where there is an utter failure of
With what grace, therefore, did defendant stand before the trial court on his motion for a new trial? If the jury had not been discharged, the trial court in all probability would have directed it to retire and correct its verdict by further finding for the plaintiff nominal actual damages, for such would have been the proper course to pursue under the authority of Mills v. Taylor, supra, and it is always presumed that courts will pursue the proper course where the
For the reasons ñerein appearing, the cause is remanded with directions to the trial court to set aside its order granting a new trial and to reinstate the judgment which was rendered on the verdict.