Jones v. Pulitzer Publishing Co.

144 S.W. 441, 240 Mo. 200, 1912 Mo. LEXIS 124

• Court: Supreme Court of Missouri
• Decided: February 27, 1912
• Status: Published

Opinion

KENNISIT, P. J.

This action for libel was brought by appellant, Orville D. Jones, against respondent, Pulitzer Publishing Company, in the circuit court of the city of St. Louis. Plaintiff is an attorney at law, residing at Edina, Missouri. The defendant is a corporation, and owns and publishes the newspaper known as The St. Louis Post-Dispatch, published at the city of St. Louis, the paper in which the alleged libelous publication appeared. The petition contains six counts. . Upon a trial the jury returned a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed to this court.

It appears from the pleadings and the record before us that plaintiff’s wife, in the month of January, 1906, left her home in Edina, for a visit with relatives in St. Louis. She did not return to her home, but in the month of April next following filed a suit for divorce against her husband, the plaintiff herein, in the circuit court of the said city of St. Louis. Before the divorce suit was filed plaintiff’s wife went to Edina and appeared before a notary public, accompanied by a negro woman named Katie Bryant, who had formerly been employed by plaintiff and his wife as a domestic. Both women made oath to certain affidavits which plaintiff’s wife had in her possession, already prepared, and the notary public was requested to attach,his jurat without reading the contents, which was accordingly done. ■, After the filing of the divorce suit plaintiff’s wife took depositions in the city of St. Louis, in which charges of improper and immoral conduct, .on the part of plaintiff with said Katie Bryant, were made by the plaintiff’s wife, and about the same time the notary public informed plaintiff of the incident of his wife and Katie Bryant having executed the said affidavits before him. Thereupon, on April 20th and 21st, plaintiff took the depositions of eighteen witnesses in Edina, to be used as evidence in the divorce suit, for the purpose of contradicting the evidence on the part of his wife by which she attempted to prove that plaintiff had sought to have improper relations with Katie Bryant. These depositions were filed by plaintiff in the office of the clerk of the circuit court in the city of St. Louis on the 25th day of April, 1906. Plaintiff’s wife filed a motion for temporary alimony in the divorce suit, and plaintiff filed an answer to the petition, containing, in addition to a general denial, a plea to the jurisdiction of the court, on the ground that his wife was not a resident of the city of St. Louis. The motion for temporary alimony and the plea to the jurisdiction were taken up by the court on April 27, 1906, and after hearing testimony thereon the court set the case for trial on the merits on the 14th day of June following. The cause came on for trial on the date set, and the taking of testimony occupied three days. On the 28th day of April, 1906, the day after the hearing of the motion for temporary alimony and the plea in abatement, and again on the day following, the Post-Dispatch published in its columns a report of the case, including an abridgment of the testimony^ in the depositions theretofore taken and filed in court by plaintiff. The first and second counts of the petition in this case are based upon the alleged libelous publication in the said issues of April 28th and 29th, the latter being a reproduction of the article published the day before. The other counts are based upon reports of the testimony in the divorce case as published in the daily editions of the paper during the progress of the trial on the merits.

The answer contained substantially the same defenses to each count of the petition. It admitted the formal allegations of inducement and the publication of the article complained of, but denied that the article published was a libel on. plaintiff. The answer to each count further alleged that the publication was a reasonably fair and impartial report of the testimony in the divorce case, and therefore privileged as such under the law. It was further alleged, by way of mitigation, that when the court had decided the divorce case in favor of the plaintiff herein, the defendant published the fact of said favorable decision and stated that such decision discredited the testimony against plaintiff at the trial. The reply was a general denial of all new matter in each paragraph of the answer.

At the close of all the evidence appellant voluntarily dismissed as to the fourth and fifth counts of the petition, and the case was submitted to the jury upon the remaining counts, with the result heretofore stated.

As it is conceded that the publications, if false and not privileged, were libelous per se on their face, we do not deem it necessary to set them out at length. Such parts of the pleadings and the instructions as may be necessary to an understanding of the questions discussed, will be set out in the course of the opinion.

The Constitution of this State provides that in all suits for libel the jury under the direction of the court, shall determine both the law and the fact. In •this case no complaint is made by appellant as to the ruling of the court in admitting or excluding evidence, and as the verdict of the jury, upon the issue of libel or no libel, was for the defendant, the only matter for review upon this appeal is the action of the court in giving and refusing instructions to the jury.

I. Appellant first complains that the court erred “in refusing plaintiff’s instruction declaring the law to be that the articles complained of in the first and second counts in the petition were not privileged, ’ ’ for the reason that said articles were not reports of judicial proceedings.

The first and second counts of the petition were based upon the articles published in the issues of the paper of the 28th and 29th of April, and each purported to give an abridged report of the testimony contained in the depositions theretofore taken and filed in court by plaintiff. When the motion for temporary alimony and the plea in abatement were heard on the 27th of April, although testimony was introduced, the depositions were not used and had not been offered .in evidence when their contents were published in the articles complained of in said first and second counts. At the request of the plaintiff the court instructed the jury that the defendant claimed the articles as published were privileged as a full and fair report of the testimony contained in depositions on file in court and that whether said publications were a full and fair report of such testimony was a question of fact to be determined by the jury, under other instructions of the court.

Under the facts thus shown by the record, there are two sufficient answers to this assignment of error.

First: .Appellant’s own instructions submitted the issue of the fairness of the published reports of the contents of the depositions, as a question of fact to be determined by the jury, and having tried the case upon that theory he will not be permitted to shift his position on appeal. “When a party by instructions, has submitted an issue to a trial court as one of fact, he cannot, on appeal, maintain that it should have been-treated as an issue of law.” [Ellis v. Harrison, 104 Mo. 307; Sawyer v. Walker, 204 Mo. 133.]

Second:. When the hearing was had in court on the motion for alimony and plea in abatement, the depositions were on file, and we think that hearing was such judicial action in the case that the publication of a fair report of the proceedings, including the pleadings and the depositions on file, was privileged under the law. [Meriwether v. Knapp & Co., 211 Mo. 199.]

II. Error is assigned to the action of the court “in not holding that the articles were obscene, scandalous and unfit for publication, as a matter of law.” By section 4737, Revised Statutes 1909, it is made a misdemeanor, punishable by fine, or imprisonment, or both, for any person to publish in a newspaper any vulgar, scandalous, obscene or immoral pleadings or evidence in a judicial proceeding. In addition to the prohibition of the statute it is the established law that the privilege of publishing a fair report of judicial proceedings does not extend to the publication of what is obscene and indecent. But appellant does not bring this case within that exception to the law of privilege, for the reason that he asked no instruction upon that theory of the case, and the court is not required to give instructions of its own motion in a civil suit. Neither was such an issue made by the pleadings. [Brown v. Globe Co., 213 Mo. 611; Morgan v. Mulhall, 214 Mo. 451.]

III. Complaint is made that the court erred in refusing, in the form asked, appellant’s instructions numbered 1, 2, 3 and 4, on the first, second, third and sixth counts of the petition, and in giving them as modified by the court.

These instructions were the same in form, the difference being only in so far as was necessary to adapt them to the several publications set forth in the different counts. The same modification was made by the court in each instruction, so that what is said as to one will apply equally to the others.

Instruction numbered 1, as requested by appellant, was as follows:

“The plaintiff sues the defendant corporation for the publication of and concerning himself in the St. Louis Post-Dispatch of the six newspaper articles set out in the six counts of his petition and alleges that the same are false and malicious and libelous; and the publication of such articles is admitted by the defendant. In the first count of his petition plaintiff complains of the publication by the defendant, in its issue of Saturday, April 28, 1906, of the article, as follows, to-wit: [Here follows a copy of the publication complained of.]

“In respect of the foregoing publication, defendant claims in the amended answer, among other defenses, that the article complained of contains a full and fair report of the testimony of witnesses contained in depositions on file in court, and that the publication of the same as an item of news is privileged in law.

“Whether or not said publication is a full and fair .report of such testimony, is a question of fact to be determined by you under other instructions of the court.

■“But the court instructs you as a matter of law, that if said article contains matter and comments which are not tru,e then such matter of comment deprives it of the benefits of the legal privilege claimed by the defendant if said privilege otherwise existed; so that the plea of privilege set up by the defendant in its amended answer is no defense to the publication of the said article, unless you find that all the statements therein.are true as a matter of fact.”

The part of the instruction in italics was stricken out by the court, and in lieu thereof the following was substituted:

“But the court instructs you, as a matter of law, that if said article contains matter of unfair comments, derogatory to plaintiff, which are not true, then such matter of comments are not entitled to be regarded by you and is not privileged; so that the pleas of privilege as set up> by the defendant in its amended answer is no defense to the publication of said comments, unless you find them true as a matter of fact.”

As thus modified, the instruction was given by the court, over appellant’s objection.

In order to a better understanding of tbe complaint urged against tbe foregoing instruction as given, it is well to have in mind the issues as made by the pleadings. The alleged libelous publication to which the instruction referred was set forth in extenso in tbe petition, with such other allegations as were necessary in stating the cause of action. One of the defenses of the answer was that the publication “was a reasonably fair and impartial statement and account of testimony given in open court upon the trial in said' court of the divorce suit of Mary Elizabeth Jones against the plaintiff herein. ’ ’ The reply was a general denial of the new matter in the answer. The answer did not justify by pleading the truth of the publication, and the court gave an instruction, at plaintiff’s request, that the truth of the testimony, as stated in the publication, was not in issue and should be treated as untrue. We therefore have before us a cause of action in which the publication is libelous per se; an answer that the publication is a fair report of a judicial proceeding and privileged as such; and a reply denying the new matter in the answer.

In asking the instruction in. the form requested, the theory of the plaintiff evidently was that if part of the publication consisted of unfair comment, then the report was not fair and the privilege was destroyed as to the entire publication. But the instruction, as requested, was clearly outside of the issues, in that the truth or falsity of what is termed comment is submitted as an issue of fact for the jury. It is clear that the court did not err in refusing it.

The instruction, as modified by the court and given to the jury, was still more objectionable, for the modification attempts to separate the publication into two parts, report and comment, leaving what is report under the protection of the privilege, and what is unfair comment under the defense of justification by proving the truth thereof, an issue not found in the pleadings. Under that theory a report might be ever so unfair and the publisher escape liability, provided the part that was unfair could be called comment and proved to be true, and the remainder shown to be a correct report of proceedings in court and therefore privileged. In a condensed report of judicial proceedings it is 'not always clear what is comment and what is report. Neither the. pleadings nor the instructions in this ease suggested any guide to the jury that would enable them to make the distinction. How was the jury to know what part of the publication was comment and what report, so as to apply the defense of truth to the one and privilege to the other ?

In the case of Stiles v. Nokes, 7 East, 506, discussing a libel case, on a state of facts not greatly dissimilar to that in hand, Lord Ellenborough, C. J. said: “The account of the proceedings in court is so interwoven with the comments that we cannot with certainty separate them throughout, although we can see plainly enough that certain parts are an overcharged account of the judicial proceedings. The court cannot decompose this mass; but the party wbo requires the separation to be made for his own defense ought to have taken upon himself the burthen of doing it, in order that the court might see with certainty what parts he meant to justify. I should have great difficulty in saying what parts purport to contain an account of the trial and what parts are libelous. If they cannot be separated by the industry of the pleader, how can they be so by general reference? If they can be so separated, they ought to have been.”

The issue of unfair comment, or the truth of such comment, or whether a part of the publication consisted of comment, was not in the case, nor were such issues recognized in the instructions given at the request of the defendant. In defendant’s instruction numhered 15 the jury was instructed that “the only issue under the, first and second counts of plaintiff’s petition is as to whether the articles published by the defendant on April 28th and 29th were fair reports of proceedings then had and of the contents of depositions then filed in the case of Jones v. Jones,” etc. A corresponding instruction was given as to the third and sixth counts. These instructions and those given by the court as modified are clearly inconsistent and contradictory, and it is obvious that the giving of plaintiff’s instructions, as modified, constituted a misdirection to the jury and was prejudicial error.

IV. Appellant also assigns error in the language of the defendant’s instructions, attempting to define the defense of privilege in the publication of the alleged libel, as a fair report of a judicial proceeding. The text-books and the decisions all agree as to the law upon that subject, so far as it is involved in the point now before us. It is considered of the greatest public importance that the people should be informed of proceedings in their courts of justice, and to that end the rights of private litigants must yield to the extent that such proceeding may be published, without the publisher incurring any liability for the otherwise libelous character of the publication. And as such proceedings may be of too great length and require too much space to publish a verbatim report thereof, the law permits the publication of an abridged report, provided it is fair and reasonably correct.

The word “fair” has a well recognized meaning when thus used to express the character of the report as an abridgment of the full judicial proceeedings. It is used .to characterize the report in the sense that it must be just and impartial as to the party complaining. The report may be inaccurate and yet not be unfair, or it may be both inaccurate and unfair, but not unfair to the plaintiff, and in such cases the defense of privilege would not be forfeited. As to the complainant, while reasonable accuracy is all that is necessary to bring the report within the privilege, reasonable fairness falls far short of what the law requires. If a reasonably fair and correct report would render the report privileged, then there would be no liability if the report was unfair, provided it was not unreasonably so. But the law does not admit of degrees in the quality of the fairness of the report. To come within the protection of the privilege it must be fair and reasonably correct. [Brown v. Globe Printing Co., 213 Mo. 611; Brown v. Knapp, 213 Mo. 655; Boogher v. Knapp, 97 Mo. 122; Folkard on Law of Slander and Libel (7 Ed.), 108; Odgers on Libel and Slander (4 Ed.), 290.]

Defendant’s instruction number 15> after setting forth the law as to the right of the defendant in publishing a report of the proceedings in the divorce case, contains the following direction to the jury:

“If, therefore, you find from the evidence that the articles complained of in the first and second counts of plaintiff’s petition were reasonably fair and correct reports of the proceedings then had and of the testimony contained in eighteen depositions then filed in said cause, then your verdict must be for the defendant. The court further instructs you that, for the purpose of determining the meaning of any particular words, sentences or headlines contained in the said articles you should consider the entire articles taken as a whole and not isolated portions thereof, and the question for you to determine is whether such publications taken as a whole are a .reasonably fair and correct report of the proceedings of the circuit court of the city of St. Louis during the progress of the trial of said cause and of the contents of the depositions which were then filed therein. ’ ’

The words “reasonably fair and correct report,” as used in the part of the instruction above set out, recur throughout defendant’s instructions, in defining the law of privilege. While the latter part of defendant’s instruction numbered 17 correctly declares the law as to the fairness of the report, the first part requires only that it be reasonably fair. The erroneous standard of fairness was used in so many instances, unaccompanied by any corrective explanation, that it cannot be said the jury were not misled by the repeated use of the words “reasonably fair and correct.” Error is presumptively prejudicial, and after having fully considered the subject we are of the opinion that this error in the instructions was prejudicial to the plaintiff in his substantial rights on the merits of the case.

• Other alleged errors are complained of in appellant’s brief, which, on account of the views herein expressed, we do not consider necessary to discuss.

The judgment is reversed and the cause remanded.

Ferriss and Brown, JJ., concur.