Friedman v. Pulitzer Publishing Co.

REYBURN, J. (after stating the facts as above).— 1. In support of the lower court’s action upon the mo — 693 — tion for new trial, respondent urges that the court erred in excluding testimony of defendant’s reporter, who obtained and prepared for publication the article complained of as libelous to the effect that he had no personal acquaintance with plaintiff and bore no malice or ill will toward him; but the record, as exhibited, discloses that questions seeking to elicit this character of testimony were addressed to and fully answered by this witness, whose testimony was offered in form of deposition, and that defendant derived the full benefit of his testimony to establish the absence of any individual malice by the author of the article toward plaintiff. Upon the hypothesis, however, that the ruling of the trial court in this regard has been erroneously transcribed, it may be proper to remark that in the opinion of this court, such testimony was competent and proper. If the publication had been dictated by express malice against plaintiff, such fact could have been established by plaintiff and imputed to defendant. Buckley v. Knapp, 48 Mo. 152; Haehl v. Railroad, 119 Mo. 325. And as the plaintiff sought to recover punitive, as well as compensatory damages, such testimony was admissible, as any facts or circumstances disproving or tending to disprove malice are admissible for the purpose of mitigating the punishment by way of exemplary damages. Weaver v. Hendrick, 30 Mo. 502; Lewis v. Humphries, 64 Mo. App. 466. The motives or purposes with which the slanderous words were spoken, lie at the very foundation of malice, and are the conditions upon which exemplary damages are based; and, accompanied with the caution to the jury that evidence of the intention and motive of defendant might be considered for the purpose of abating the punitive damages, but did not constitute a defense or bar to the action, such testimony was admissible. Callahan v. Ingram, 122 Mo. 255, and commentators cited. 2. The petition embraced no elements of special damages, but simply and generally charged that plain — 694 — tiff had been greatly damaged by the publication, with prayer for $10,000 damages, actual and punitive, and even contained no express averment that plaintiff was engaged. in business of any description. The court, however, at the trial permitted evidence to be introduced of the suspension of plaintiff from the ticket brokers’ association and also admitting plaintiff’s testimony of decrease in his business earnings. In Hughes v. Telegraph Co., 79 Mo. App. 133, this court adopted the definition announced by the Eederal Supreme Court of special damages: ‘ ‘ Special, as contradistinguished from general, damage, is that which is the natural, but not the necessary consequence of the act complained of.” Roberts v. Graham, 73 U. S. (6 Wall.) 578. There was no foundation for the admission of either species of testimony in the plaintiff’s statement of his cause of action, and all such testimony should have been rigorously excluded. This position is- abundantly supported by commentators as well as by adjudicated cases. “ The general rule is that no evidence of special damages is admissible, unless it be averred in the pleadings; and this is so whether special damages be the gist of the action, or be used as matter of aggravation when the words are in themselves actionable. ’ ’ Starkie, Slander and Libel (5 Ed.), p. 489; Newell, Slander and Libel (2 Ed.), p. 779; 3 Sutherland, Damages (2 Ed.), sec. 1215; Steibeling v. Lockhaus, 28 Sup. Ct. Rep. (21 Hun) 457; Hatt v. Evening News Ass’n, 94 Mich. 119. “Special damages, whether resulting from tort or breach of contract, must be particularly averred, in order that the defendant may be notified of the charge and come prepared to meet it.” Roberts v. Graham, 73 U. S. (6 Wall.) 578. 3. The third instruction given for plaintiff was as follows: “The court further instructs the jury that if they find for the plaintiff, in estimating the damages they — 695 — may take into consideration the character of the defamation, the circumstances under which it was published, the extent of the circulation of the paper, and of the publicity thus given to the libel, the absence of any apology' and the pecuniary circumstances of the defendant. ’ ’ There is not a syllable to be found in the evidence respecting an apology; the record is dumb and silent as to any such reparation being asked for or declined. In this negative condition of the testimony, the attention of the jury should not have been directed to the absence of an apology as a circumstance to be taken into consideration in estimating plaintiff’s damages, as it was clearly calculated to have a material effect in the computation of the exemplary, if not the compensatory, damages awarded. The instruction was misleading and prejudicial in this regard, and tended to emphasize and render prominent and conspicuous a phase of the case, respecting which no testimony has been introduced on either side. Instructions should be confined safely within the bounds of the evidence introduced and should not be given without substantial testimony to support them. Hewitt v. Steele, 118 Mo. 463; Mateer v. Railroad, 105 Mo. 320; Kansas & Texas Coal Co. v. Millett, 50 Mo. App. 382. 4. Among other grounds for its action in sustaining the motion for new trial, the circuit court assigned that the verdict was so exorbitant as to both classes of damages awarded, as to indicate passion and prejudice on the part of the jury. In a long, unbroken line of decisions of the Supreme Court, as well as of this court, the rule has been frequently proclaimed that it is not only the prerogative, but it is the peculiar and special duty, of trial courts to grant new trials, when the verdict is deemed arbitrary or manifestly wrong, or when the verdict appears to be the result of passion, prejudice or misconduct on the part of the jury, and that unless it is manifest that the trial court has abused its judicial discretion, or that injustice has been done, its ruling will — 696 — not be disturbed by the appellate courts. Kuenzel v. Stevens, 155 Mo. 280; Chouquette v. Railroad, 152 Mo. 257; Lee v. Geo. Knapp Co., 137 Mo. 385; Parker v. Cassingham, 130 Mo. 348; Bank v. Wood, 124 Mo. 72; Hewitt v. Steele, 118 Mo. 463; McCullough v. Ins. Co., 113 Mo. 606; Price v. Evans, 49 Mo. 396; Reed v. Ins. Co., 58 Mo. 421; Woolfolk v. Tate, 25 Mo. 597; Mason v. Onan, 67 Mo. App. 290; Powell v. Railroad, 59 Mo. App. 335; Ensor v. Smith, 57 Mo. 584; Longdon v. Kelly, 51 Mo. 572. As far back as the last decision of the Supreme Court above relied on, the eminent jurist delivering the opinion observes: “But in this connection, 'it is well enough to make another remark. Constant complaints are reaching us that in some of the circuits the rule adopted here is followed [i. e., to refuse to weigh the evidence], and that the judges consider themselves bound thereby. But this is founded in an entire misapprehension. The trial courts have opportunities which we have not. • In witnessing and presiding over the trial, they are put in possession of facts which we can not possibly attain. They see the witnesses; can form an opinion respecting their veracity; can observe whether they are biased or prejudiced; can notice their willingness or unwillingness, and a great many other circumstances which it is impossible to transfer to paper. They can also form a correct conclusion as to whether any improper influences operated on the jury in producing the verdict. All these considerations render it peculiarly proper that the question of granting new trials, on account of the verdict being against the weight of testimony, should be exclusively exercised by the court trying the cause, and where the trial court is of the opinion that the verdict is not supported by the evidence, or is against the weight of evidence, it should never hesitate in exercising the power and giving the aggrieved party a new trial.” All presumptions are in favor of the action of the trial court, and the exercise of the right and duty of — 697 — granting new trials, deemed proper by the trial courts in tbe attainment of justice is commendable and should be upheld under the rules of law and limitations above declared. "We can find no evidence in this record of any abuse of its discretionary authority by the trial court, and the judgment is, accordingly, affirmed. Blcmd, P. J., and Goode, J., concur.