Lupkey v. Weldon

419 S.W.2d 91, 1967 Mo. LEXIS 804

• Court: Supreme Court of Missouri
• Decided: September 11, 1967
• Docket: 51811
• Status: Published

Opinions

DONNELLY, Judge.

This is a libel action. Plaintiff had a jury verdict of $1,000 actual damages and $50,000 punitive damages. The trial court granted defendants a new trial on the sole ground that the verdict was “against the weight of the evidence.” Plaintiff appealed. 0

Plaintiff concedes that a new trial may be granted in a libel action on the ground that the verdict was against the weight of the evidence. 53 C.J.S. Libel and Slander § 234, p. 359; Johnson v. Scribner, 6 Conn. 185. A trial court may grant a new trial in a libel action on a recognized legal ground. Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332. A recognized legal ground is that the verdict is against the weight of the evidence. Section 510.330 RSMo 1959, V.A.M.S.; Supreme Court Rule 78.01, V.A.M.R.

Plaintiff contends there was no substantial evidence to have supported a verdict for defendants and, therefore, that the trial court erred in granting a new trial on the ground the verdict was against the weight of the evidence. He asserts the editorial complained of is libelous per se; that, therefore, the only defense is truth; that there was no evidence to support said defense; and, therefore, that there was no evidence to weigh.

Plaintiff relies upon a rule of law stated in Castorina v. Herrmann, 340 Mo. 1026, 1032, 104 S.W.2d 297, 300, as follows: “ * * * To grant a new trial, on the ground that the finding was against the weight of the evidence, would be arbitrary if there was no evidence to weigh. Therefore, on appeal from such an order based on that ground, the appellate court will determine whether or not there was sufficient substantial evidence to sustain a verdict for the party to whom the new trial was granted. * *

The question for determination is whether this rule of law is available to plaintiff in a libel action when there is a verdict for plaintiff and defendants are granted a new trial on the ground the verdict is against the weight of the evidence. We are of the opinion it is not.

In interpreting the Castorina statement, we must view it as but an application of the rule of law that we will overturn an order granting a new trial on the ground the verdict was against the weight of the evidence only in cases where no verdict in favor of the party at whose instance the new trial was granted “could ever be permitted to stand.” Haven v. Missouri Railroad Company, 155 Mo. 216, 230, 55 S.W. 1035, 1039.

The essential question is whether, in a given case, the appellate court must declare as a matter of law that the trial court should have directed a verdict against the party at whose instance the new trial was granted. Or, to state it in a different way, the question is whether, in this case, we must declare that the trial court should have directed a verdict for plaintiff. We cannot do this in a libel action.

Article I, Section 8 of the Missouri Constitution, V.A.M.S., provides in part that “in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.” This provision has been interpreted to mean that the court may not direct a verdict for a plaintiff in a libel case. In this respect libel cases differ from other cases. Heller v. Pulitzer Pub. Co., 153 Mo. 205, 212, 213, 214, 54 S.W. 457, 458, 459; Diener v. Star-Chronical Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216. In Ukman v. Daily Record Co., 189 Mo. 378, 390, 88 S.W. 60, 64, the Court stated:

“Libel cases are sui generis, in that the gist of Fox’s Libel Act, imbedded in our Constitution, section 14, art. 2, Bill of Rights, leaves to the jury the issue of libel or no libel; and from this certain peculiar results logically flow and are recognized by the courts, to wit, that a defendant in a libel suit has two strings to his bow, the one the jury and the other the court, whereas the plaintiff has but one, and, if he succeed, must win a verdict from the jury. Stated in a different way, if the defendant can get either the court or the jury to be in his favor, he succeeds, while the prosecutor or plaintiff cannot succeed unless he gets both the court and the jury to decide for him. From this condition of things it further follows that the court may direct a non-suit, but cannot coerce a verdict for plaintiff. * * *.”

This Court has consistently declined to weigh evidence on appeal when the trial court granted a new trial on the ground the jury verdict is against the weight of the evidence. See Clark v. Quality Dairy Co., Mo.Sup., 400 S.W.2d 78, for a review of our judicial history in this regard. As stated in the Clark case, weighing evidence involves a qualitative analysis as well as a quantitative analysis. We have long recognized the superior ability of a trial court to perform this function, and we will not substitute our judgment for that of the trial court when it grants a new trial on the ground the jury verdict is against the weight of the evidence.

We cannot hold as a matter of law that a jury verdict for defendants could not have been permitted to stand. We will not overturn the order of the trial court granting a new trial.

Plaintiff asserts that when the trial court submitted the facts to the jury, and denied defendants’ contention that defendants should prevail as a matter of law, the trial court divested itself of the power to grant a new trial on the ground the jury verdict was against the weight of the evidence. We do not agree. State ex rel. State Highway Commission v. Belvidere Development Company, Mo.Sup., 315 S.W. 2d 781, 785.

The order granting a new trial is affirmed.

HOLMAN, C. J., and HENLEY, FINCH and EAGER, JJ., concur. SEILER, J., concurs in result in separate concurring opinion filed. STORCKMAN, J., dissents in dissenting opinion filed.