Opinion
No. WD 59936
August 30, 2002
Appeal from the Circuit Court of Jackson County, Missouri, The Honorable W. Stephen Nixon, Judge.
Michael W. Blanton, Lee's Summit, MO, Thomas C. Locke, Independence, MO, Attorneys for Respondent.
James T. Seigfreid, Jr., Kansas City, MO, Michael S. Cessna, Bentonville, AR, Attorneys for Appellant.
Before Ellis, C.J., and Smith and Howard, JJ.
Wal-Mart Stores, Inc., appeals from the judgment of the Circuit Court of Jackson County entered on a jury verdict in favor of the respondent, Carolyn Kenney, on her claim of defamation against the appellant, awarding her $33,750 in compensatory damages and $392,083 in punitive damages. Her claim arose out of the display of a poster in the Missing Children's Network display case in the appellant's Lee's Summit, Missouri, store concerning the respondent's granddaughter. The respondent alleged in her petition that the poster was defamatory in that it insinuated that her granddaughter was missing and that she was involved.
The appellant raises eight points on appeal. In its first seven points, it claims that the trial court erred in denying its motion for directed verdict and motion for judgment notwithstanding the verdict (J.N.O.V.), claiming in Points I-III and V, respectively, that the respondent failed to make a submissible case of defamation, due to insufficient evidence, on the issues of whether the statements contained in the poster were defamatory in nature, whether the appellant published or negligently published the poster, and whether the publication of the poster damaged the respondent. In Point IV, the appellant claims that the respondent failed to make a submissible case "in that Wal-Mart proved that the notice [poster] was substantially true." In Points VI and VII, the appellant claims that the trial court erred in denying its motion for directed verdict and motion for J.N.O.V. "because the poster was privileged under the fair report privilege," and because, on the issue of punitive damages, there was no evidence of actual malice. In its final point, the appellant claims that the trial court erred in denying its motion for new trial "because [in giving the respondent's verdict director, Instruction No. 6,] the trial court made material modifications to the verdict director prescribed by MAI 23.06 that materially affected the merits of the case."
Because we find that the trial court plainly erred in instructing the jury on the requisite elements of proof of the respondent's defamation claim, we reverse and remand for a new trial. And, because we believe that this case presents questions of general interest and importance and the existing law of defamation needs re-examining, pursuant to Rule 83.02, we order this case transferred to the Missouri Supreme Court.
Facts
On April 13, 1995, Lauren Kenney, was born out of wedlock to the respondent's son, Christopher Kenney (Kenney), and his then girlfriend, Angela Mueller (mother). After she was born, Lauren resided with her mother. At that time, there were no court orders establishing custody of or visitation with the child. Despite there being no court-ordered visitation, by agreement with the mother, Kenney visited with Lauren approximately every other weekend from April 1995 to August 1996. Kenney's visitations usually took place at the home of the respondent. As such, Kenney's visitations with Lauren often commenced with the respondent picking her up at her mother's residence.
As arranged with the mother, Kenney was to exercise a weekend visitation with Lauren over the Labor Day weekend in 1996, to commence on Friday, August 30. It was agreed that the respondent would pick up Lauren in the afternoon, and that she would be returned on Sunday, September 1. The respondent, driving a 1996 or 1997 white Honda Accord with no visible license plates, picked up Lauren from her mother's home at approximately 1:30 p.m. on August 30, 1996, and took her to see Kenney at his place of employment.
On that same day, Kenney, believing that the mother was planning on taking Lauren to Georgia, possibly to live, filed a petition (presumably a paternity petition) in the Circuit Court of Clay County to establish custody of Lauren. The petition was set for hearing on the following Tuesday, September 3, 1996. On Saturday, August 31, 1996, Kenney decided to take Lauren to the Lake of the Ozarks and keep her there until the hearing on Tuesday because he feared that if he returned Lauren to her mother, she might take her to Georgia before the hearing. Kenney called the mother to advise her that he would not be returning Lauren on the date agreed upon and that he would be keeping her until the hearing on Tuesday. Kenney not only refused to return Lauren to the mother as agreed, but he also refused to tell her where he was keeping Lauren. Kenney then took Lauren to the Lake of the Ozarks, accompanied by the respondent, whom he had asked to go with them.
On Sunday, September 1, 1996, the mother, with the assistance of her family, prepared a missing child poster, copies of which were posted and distributed throughout the Kansas City Metro area. The poster read:
Although no one knows exactly how, a copy of the poster ended up in the locked display case maintained by the appellant at its Lee's Summit store for posters circulated by the National Center for Missing and Exploited Children. At the time, the display case contained sixteen posters circulated by the National Center.
On September 1, 1996, the mother went to the Kansas City, Missouri, Police Department and spoke with Detective Thomas Blow to report Lauren as missing. After speaking with the mother, Detective Blow filed a missing person's report and issued a pick-up order that instructed all law enforcement officers who come in contact with Lauren to detain her. Also on September 1, 1996, an unidentified woman at the Lee's Summit Wal-Mart store noticed Lauren's poster in the display case and notified an assistant manager, Peggy Lohman, that the contents of the poster were false. Although Lohman attempted to open the display case to take the poster down, she was unable to find the correct key, so the poster was not removed from the case at that time. That same evening, the mother went to KSHB-TV 41 to obtain its help in locating Lauren. The television station agreed to assist her, and the next day issued the following report:
Police are on the lookout for a missing girl who may have been abducted by a relative. Sixteen-month-old Lauren Kenney is pictured here with her mother. The child was last seen Friday afternoon when she left her house with her paternal grandmother, Carolyn Kenney. Family members believe the girl's father and grandmother are now with her at an unknown location. Lauren has curly hair and hazel eyes, she is two feet five inches tall, and sixteen months old. If you have any information, please call the Juvenile Division of the Kansas City Police Department or your local law enforcement agency.
On September 2, 1996, Kenney and the respondent returned to Kansas City with Lauren. While the respondent went to her residence, Kenney checked into a hotel with Lauren. The custody hearing was conducted the following day. After hearing evidence, the circuit court awarded primary custody of Lauren to the mother, at which time Kenney surrendered her to her mother.
On September 1, 1998, the respondent filed a petition for defamation against the appellant in the Circuit Court of Jackson County. In her petition, she alleged that the appellant had defamed her by displaying the poster in its Lee's Summit store which implied that she was involved in wrongfully withholding custody of Lauren from her mother. The cause proceeded to a jury trial on December 4, 2000. At trial, the respondent called Patty Wyke, a friend of over twenty years, who testified that she saw the poster in the display case at the Lee's Summit Wal-Mart during the week either immediately following the Labor Day weekend or the week after that. Wyke testified that she notified a manager that the poster was false, but, without looking at the poster, the manager indicated that he could not take it down. Wyke testified that she returned to the store several days later and once again noticed the poster in the display case. This time she voiced her concerns to another manager who told her that he was too busy to verify the accuracy of the poster.
The appellant filed a motion for a directed verdict at the close of the respondent's evidence and at the close of all the evidence, both of which were overruled by the trial court. On December 11, 2000, the jury returned a verdict in favor of the respondent, and awarded her actual damages of $33,750 and punitive damages of $392,083. The trial court entered judgment on the verdict on December 21, 2000. The appellant filed a motion for J.N.O.V., or in the alternative, for a new trial, on January 22, 2001. On April 4, 2001, the trial court overruled the appellant's motion.
This appeal follows.
I.
Germane, of course, to each of the appellant's claims of error on appeal is the law in Missouri regarding defamation, specifically the law as to the required elements of proof for defamation. In that regard, in Nazeri v. Missouri Valley College , 860 S.W.2d 303, 313 (Mo. banc 1993), the Missouri Supreme Court abolished the distinctions between pleading and proving defamation per se and per quod and held that in both instances, a plaintiff need only plead and prove the unified defamation elements set out in the applicable MAI verdict directors. Id . At that time, and as is the case presently, the verdict directors for libel were set out in MAI 23.06(1) [1980 New] and 23.06(2) [1980 New], and the verdict directors for slander being set out in MAI 23.10(1) [1980 New] and 23.10(2) [1980 New]. MAI 23.06(1) [1980 New] and 23.10(1) [1980 New] deal with private figures, while MAI 23.06(2) [1980 New] and 23.10(2) [1980 New] deal with public figures. Accordingly, in our case, involving alleged libel of a private figure, the applicable MAI verdict director would be MAI 23.06(1) [1980 New].
MAI 23.06(1) [1980 New] reads:
Your verdict must be for plaintiff if you believe:
First, defendant ( describe act such as "published a newspaper article") containing the statement ( here insert the statement claimed to be libelous such as "plaintiff was a convicted felon"), and
Second, defendant was at fault in publishing such statement, and
Third, such statement tended to [expose plaintiff to ( select appropriate term or terms such as "hatred", "contempt" or "ridicule")] [or] [deprive the plaintiff of the benefit of public confidence and social associations], and
Fourth, such statement was read by ( here insert name of person or persons other than plaintiff or the appropriate generic term such as "the public"), and
Fifth, plaintiff's reputation was thereby damaged.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ___ ( here insert number of affirmative defense instruction)].
In contrast, MAI 23.06(2) [1980 New], dealing with public figures, reads:
Your verdict must be for plaintiff if you believe:
First, defendant ( describe act such as "published a newspaper article") containing the statement ( here insert the statement claimed to be libelous such as "plaintiff was a convicted felon"), and
Second, such statement was false, and
Third, defendant ( describe the act of publication such as "published some statement", wrote such letter", etc.) either
with knowledge that it was false, or
with reckless disregard for whether it was true or false at a time when defendant had serious doubt as to whether it was true, and
Fourth, such statement tended to [expose plaintiff to ( select appropriate term or terms such as "hatred", "contempt" or "ridicule")] [or] [deprive the plaintiff of the benefit of public confidence and social associations], and
Fifth, such statement was read by ( here insert name of person or persons other than plaintiff or the appropriate generic term such as "the public"), and
Sixth, plaintiff's reputation was thereby damaged.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ___ ( here insert number of affirmative defense instruction)].
Of obvious note is the fact that while the latter instruction places the burden on the plaintiff to plead and prove that the alleged defamatory statement is false, the former does not. Of course, the issue of whether an alleged defamatory statement is false arises from the well-settled rule of law that truth is a defense to defamation. Mo. Const. art. I, § 8; Rice v. Hodapp , 919 S.W.2d 240, 243 (Mo. banc 1996). In any event, the requirement of MAI 23.06(2) [1980 New] that the plaintiff prove that the alleged defamatory statement is false would appear to conflict with Rule 55.08 and § 509.090. Rule 55.08, dealing with affirmative defenses, provides, in pertinent part: "In pleading to a preceding pleading, a party shall set forth all applicable defenses and avoidances, including but not limited to . . . truth in defamation . . . and any other matter constituting an avoidance or affirmative defense." Section 509.090, which also deals with affirmative defenses, contains the identical language. The conflict between MAI 23.06(2) [1980 New] and Rule 55.08 and § 509.090 lies in the fact that while MAI 23.06(2) [1980 New] places the burden on the plaintiff to prove as part of the plaintiff's case that the alleged defamatory statement is false, Rule 55.08 and § 509.090 treat truth in defamation as an affirmative defense that must be pleaded and proven by the defendant. We can find no cases that have dealt with this issue of the obvious conflicting burdens of proof between MAI 23.06(2) [1980 New] and Rule 55.08 and § 509.090 in a defamation suit involving a public figure.
All rule references are to the Missouri Rules of Civil Procedure (2002), unless otherwise indicated.
All statutory references are to RSMo 2000, unless otherwise indicated.
Adding further confusion to the issue of which party has the burden of proof as to the falsity of the alleged defamatory statement in a case involving a public figure is the fact that MAI 32.12 [1969 New], the MAI affirmative defense instruction for truth in defamation, does not limit in its Notes on Use the instruction's application to defamation cases involving private figures, which would seem to be the logical course of action given the fact that the MAI defamation verdict directors for public figures expressly place the burden on the plaintiff to prove that the alleged defamatory statement is false. The Committee Comments do direct us, however, to "[s]ee verdict directing instructions at MAI 23.06(1) and MAI 23.10(1)," which may be some indication of an intent to limit the application of MAI 32.12 to defamation cases involving private figures only, which would be consistent with the respective MAI verdict directors for libel and slander.
With respect to the conflict concerning the interplay between MAI 23.06(2) [1980 New], the MAI defamation verdict director for a public figure, and Rule 55.08, § 509.090, and MAI 32.12 [1969 New], our case does not require us to address that issue inasmuch it involves a plaintiff who is a private figure, implicating MAI 23.06(1) [1980 New]. Thus, pursuant to the directive of Nazeri , in determining the elements that the respondent here was required to plead and prove in her defamation action against the appellant below, we would look to MAI 23.06(1) [1980 New], which requires the plaintiff to prove five elements: (1) publication, (2) with the requisite degree of fault, (3) of a defamatory statement, (4) that identifies the plaintiff, and (5) damages the plaintiff's reputation. In accordance with Rule 55.08 and § 509.090, truth as a defense would then have to be raised by the defendant by way of a properly pleaded affirmative defense. This tracks with the Missouri Supreme Court's holding in Walker v. Kansas City Star Company , 406 S.W.2d 44, 52-53 (Mo. 1966), in which the Court noted first that the "issue of truth in a defamation suit is an affirmative defense to be pleaded by defendants, § 509.090 V.A.M.S., and the risk of nonpersuasion on the issue must be assumed by them"; and second that the "falsity of all defamatory words is presumed in the plaintiff's favor, and he need give no evidence to show them false. The burden is on defendant to rebut this presumption by giving evidence in support of the plea of justification."
This same conflict would exist with respect to MAI 26.10(2).
At the time Walker was decided, there were three MAI verdict directors involving defamation: (1) MAI 23.06, the verdict director for libel; (2) MAI 23.09, the verdict director for "slander not per se"; and (3) MAI 23.10, the verdict director for "slander per se." Those instructions did not differentiate between private and public figures, as do the present defamation instructions. That dichotomy came about with the 1980 revisions of the defamation instructions. In addition, the three prior instructions did not require proof of falsity to make a submissible case of defamation, except MAI 23.06 in the case where a qualified privilege was raised.
Given the foregoing tour of the law of defamation, the law as to private figures, unlike the law with respect to public figures, as noted, supra, appeared to be well settled with respect to the requisite proof elements to make a submissible case, until the Supreme Court's decision in Overcast v. Billings Mutual Ins. Company , 11 S.W.3d 62, 70 (Mo. banc 2000). In Overcast , involving the alleged libel of a private figure, the Court delineated the proof elements of defamation, stating: "The elements of defamation in Missouri are: 1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff's reputation," citing Nazeri , without any specific page reference. Id . (emphasis added) . Our reading of Nazeri does not disclose the laundry list of six proof elements cited in Overcast . Rather, in that regard, as discussed, supra, the Nazeri court simply held that the proof elements were those found in the applicable MAI verdict directors. 860 S.W.2d at 313. And, as pointed out, supra, MAI 23.06(1) [1980 New], governing libel in the case of a private figure, did not at the time Nazeri or Overcast were decided require the plaintiff to plead and prove that the alleged defamatory statement was false. Instead, in apparent accord with Rule 55.08 and § 509.090, truth as a defense was required to be pled and proven by the defendant as an affirmative defense. Thus, while the Nazeri court deferred to the requirements of the applicable MAI verdict director, Overcast expressly set forth the requisite proof elements of defamation involving a private figure, one of which, the falsity of the alleged defamatory statement, was at the time and presently is not found in the applicable MAI verdict director, MAI 23.06(1) [1980 New].
As to the conflict between Nazeri and Overcast on the issue of the requisite proof elements of defamation involving a private figure, the latter controls. See State v. Williams , 9 S.W.3d 3, 12 (Mo.App. 1999) (stating that we are bound by the most recent pronouncement of the Supreme Court) . As to the conflict between Overcast and MAI 23.06(1) [1980 New], the law is well settled that in cases of such conflict, the law is to prevail over the applicable MAI instruction. See Letz v. Turbomeca Engine Corp . , 975 S.W.2d 155, 167 (Mo.App. 1997) (stating that if an instruction following MAI conflicts with the substantive law, the trial court should decline to follow MAI) . Stated another way, the law is the dog and the MAI is the tail, and the latter cannot wag the former, such that the applicable MAI instruction must reflect the existing law, not vice versa. In that regard, as the Missouri Supreme Court Committee on Jury Instructions admonishes us:
Changes in the law may render an applicable MAI instruction a misstatement of then current law. If so, counsel and the trial judge should revise or rewrite the MAI instruction to make it consistent with then current law. A thorough record, including citations to the new law, should be included to alert appellate courts to the reason for the deviation from an apparently applicable MAI instruction.
HOW TO USE THIS BOOK, Committee Comment (1996 Revision), MODIFICATIONS AND WHEN NO APPLICABLE INSTRUCTION IS IN THE BOOK, p. xlix. As to Overcast being contrary to Rule 55.08 and § 509.090 with respect to truth in defamation being an affirmative defense, the Supreme Court obviously has the inherent power to amend its own rules and as to any conflict between a procedural rule of the court and a statute, the rule controls, unless the legislature specifically annuls or amends the rules in a bill limited to that purpose, which is not the case here. See State ex rel. Kinsky v. Pratte , 994 S.W.2d 74, 75 (Mo.App. 1999) (stating that a Supreme Court procedural rule takes precedence over any contradictory statute, unless the rule is annulled or amended by the legislature in a bill limited to that purpose) . Thus, in conformity with Overcast , the trial court, in submitting the respondent's defamation claim to the jury, was obligated to modify MAI 23.06(1) [1980 New] so as to require the respondent, as part of her burden of proof, to prove by a preponderance of the evidence that the alleged defamatory statements in the poster were false.
The record indicates that the respondent's claim was submitted to the jury in Instruction No. 6, which was patterned after MAI 23.06(1) [1980 New], with some modifications. Under that instruction, the jury was not required to find that the alleged defamatory statements of the missing child poster were false. Rather, the issue of the truth or falsity of the statements was submitted as an affirmative defense, in Instruction No. 7, offered by the appellant and patterned after MAI 32.12 [1969 New], placing the burden on the appellant to prove that the statements were true in order to avoid the respondent's claim. While instructing in this fashion was in accord with the directive of Nazeri and MAI 23.06(1) [1980 New], it was not in accordance with the controlling pronouncement of the law in Overcast in that the trial court's verdict director failed to instruct the jury that to find for the plaintiff on her claim, it had to find, inter alia, that she had proven by a preponderance of the evidence that the alleged defamatory statements contained in the poster were false. This then resulted in the jury being incorrectly instructed as to the requisite elements of proof of the plaintiff's case based on the law as stated in Overcast , which constituted error. See Williams v. Enochs , 742 S.W.2d 165, 168 (Mo. banc 1987) (stating that it is reversible error for a court to submit a verdict director which omits essential elements of a claim).
Although in Point IV the appellant claims that the respondent did not make a submissible case because the evidence established the truth of the alleged defamatory statements in the missing child poster, the record indicates that the appellant, as required by Rule 70.03, did not object at trial to Instruction No. 6 on the basis that it failed to require as a proof element of the respondent's case that the alleged defamatory statements of the poster were false nor did it include such an objection in its motion for new trial. Rather, the only challenge to the trial court's instructions was, as outlined in Point VIII, that it was error for the trial court to modify MAI 23.06(1) [1980 New] by substituting "display" for "publication" in paragraphs first and second and modifying the damage paragraph. Thus, the trial court's error in instructing the jury on the requisite proof elements of the respondent's claim as to the falsity of the alleged defamatory statements contained in the poster was not preserved for our review, except for plain error review under Rule 84.13(c), see French v. Mo. Highway Transp. Comm'n , 908 S.W.2d 146, 150 (Mo.App. 1995), which reads: "Plain error affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."
Rule 70.03 reads:
Counsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Counsel need not repeat objections already made on the record prior to delivery of the instructions. The objections must also be raised in the motion for new trial in accordance with Rule 78.07.
Although the language of Rule 70.03, at first blush, would seem to preclude any review, including plain error review, that language is identical to the language of Rule 28.03, except for the fact that the latter refers to both instructions and verdict forms, which the Missouri Supreme Court has previously interpreted in State v. Wurtzberger , 40 S.W.3d 893, 897-98 (Mo. banc 2001) as not precluding plain error review. The same interpretation would logically apply to Rule 70.03.
Plain error review involves a two-step process. State v. Dudley , 51 S.W.3d 44, 53 (Mo.App. 2001). "The first step involves an examination to determine whether the claim for review 'facially establishes substantial grounds for believing that "manifest injustice or miscarriage of justice has resulted,"' or in other words, whether, on the face of the claim, plain error has, in fact, occurred." Id . ( quoting State v. Brown , 902 S.W.2d 278, 284 (Mo. banc 1995)) . If we find plain error on the face of the claim, then we move to the second step which is to determine whether the claimed error resulted in manifest injustice or a miscarriage of justice. Dudley , 51 S.W.3d at 53 . Applying this standard, we find plain error in the trial court's failure to instruct the jury in this case on a required element of proof of the respondent's claim of defamation, specifically the issue of falsity. In so holding, we are cognizant of the fact that plain error review is to be used sparingly, State v. McMillin , 783 S.W.2d 82, 98 (Mo. banc 1990) and is rarely applied in civil cases. Robertson v. Cameron Mut. Ins. Co . , 855 S.W.2d 442, 447 (Mo.App. 1993).
Although in the context of a criminal case, this court has previously stated, with respect to plain error review of instructional error:
Plain error for purposes of instructional error 'results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict.' Applying this standard, we would be more likely to reverse where the erroneous instruction 'did not merely allow a wrong word or some other ambiguity to exist, [but] excused the State from its burden of proof on [a] contested element of the crime.' Our appellate courts have found plain error where a verdict director effectively omits an essential element of the offense and the evidence fails to establish the omitted element beyond serious dispute.
State v. Harney , 51 S.W.3d 519, 535-36 (Mo.App. 2001) (citations omitted) . There is no logical reason for not applying that same standard in a civil case such as ours.
As discussed, supra, the jury in our case was misinstructed as to which party had the burden of proof on the issue of whether the alleged defamatory statements on the poster were true or false. Under Overcast , for the respondent to succeed on her defamation claim, the burden should have been on her to prove, inter alia, by a preponderance of the evidence that the statements were false. In this regard, while Overcast was in conflict with MAI 23.06(1) [1980 New], it was decided in February 2000, some ten months before the case at bar was submitted to the jury on December 11, 2000. Thus, the trial court was presumed to have been aware of the clear and straightforward pronouncement of the Supreme Court therein as to the six requisite proof elements of defamation involving a private figure, which it was duty bound to follow, Crabtree v. Bugby , 967 S.W.2d 66, 71 (Mo. banc 1998), by modifying MAI 23.06(1) [1980 New], Bockover v. Stemmerman , 708 S.W.2d 179, 181 (Mo.App. 1986), such that it was obvious error not to do so. However, as discussed, supra, under the trial court's instructions, that burden as to the truth or falsity of the statements in the poster fell on the appellant via Instruction No. 7, the appellant's affirmative defense instruction patterned after MAI 32.12 [1969 New]. Thus, the respondent was excused from proving an element of her claim.
In fact, this court in Deckard v. O'Reilly Automotive, Inc . , 31 S.W.3d 6, 18 (Mo.App. 2000), which was handed down on August 1, 2000, some three months prior to the trial of the case at bar, expressly adopted the six elements of proof set forth in Overcast for defamation as to a private figure, including the falsity element.
As to whether the issue of the alleged defamatory statements in the poster being false was in serious dispute, there can be no doubt that it was. In fact, the appellant claims in Point IV that, based on the respondent's own evidence, there was no dispute that the statements in the poster were substantially true such that the appellant was entitled to a directed verdict on its affirmative defense claim of truth in defamation. In support of its claim, the appellant points to the portion of the record in which it contends that the respondent, under cross-examination by the defense, admitted that the statements contained in the poster were substantially true. For her part, the respondent does not quibble with the fact that she essentially admitted to the truthfulness of the statements in the poster, except to assert that she never admitted that her granddaughter was ever "'missing' in the common sense of that term," and even if she could have been considered missing prior to September 3, 1996, she could not have been considered missing thereafter.
Essentially, what the appellant claims in Point IV is that its affirmative defense of truth was proven by the respondent's own evidence. A directed verdict or J.N.O.V. for the defendant is proper when the plaintiff's evidence establishes that an affirmative defense bars recovery. Heins Implement Co. v. Mo. Highway Transp. Comm'n , 859 S.W.2d 681, 683 (Mo. banc 1993); Schnatzmeyer v. Nat'l Life Ins. Co . , 791 S.W.2d 815, 820 (Mo.App. 1990).
The respondent contends that there was no evidence in the record from which a reasonable jury could infer that her granddaughter was ever missing, as the poster asserted, such that there was no dispute as to it being false. She does not favor us with any authority as to why "missing" would not encompass the factual situation established by her own evidence. Rather, she simply relies on her common sense notion of what constitutes a missing child. In support of this notion, she points to her evidence that the mother knew that the child was with her father and that he had contacted the mother on Saturday, August 31, 1996, and told her that the child would be returned on September 3, 1996, the day of the scheduled court hearing. The respondent's own evidence also established, however, that the mother initially agreed that the child would be returned on Sunday, September 1, which she later changed to Saturday, August 31. The respondent's evidence also established that the mother was not told and did not know where the father was keeping the child. Hence, the custodial parent did not know where the child was being kept or when and if she would be returned for certain.
A statement will be deemed defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Deckard v. O'Reilly Auto., Inc . , 31 S.W.3d 6, 19 (Mo.App. 2000) ( citing Henry v. Halliburton , 690 S.W.2d 775, 779 (Mo. banc 1985)) . When determining if a statement is defamatory, the alleged defamatory words must be stripped of any pleaded innuendo and construed in their most innocent sense. Nazeri , 860 S.W.2d at 311 . But the words must also be considered in context, giving them their plain and ordinary meaning. Id . In that regard, the words "are to be taken in the sense which is most obvious and natural according to the ideas they are calculated to convey to those to whom they are addressed." Id . ( citing Kirk v. Ebenhoch , 191 S.W.2d 643, 645 (Mo. 1945)) . Given the facts in accord with the respondent's own evidence, cast in the light of the pending contested custody proceeding, and giving "missing" its plain and ordinary meaning considered in the context in which it appeared, Chastain v. Kansas City Star , 50 S.W.3d 286, 288 (Mo.App. 2001), the respondent does not persuade us that in a "common sense" light the child could not reasonably be considered missing.
The respondent contends that even if the child could have been considered missing before September 3, 1996, she could not have been considered missing thereafter in that there was no dispute that the child was returned to the mother on that date. From this, she contends that when the poster was viewed in the appellant's store on the one occasion after that date, as her evidence established, the poster's reference to Lauren's being missing was no longer true. In so contending, the respondent confuses the law of defamation.
As pointed out in Turnbull v. Herald Company , 459 S.W.2d 516, 519 (Mo.App. 1970), a defendant raising the defense of truth in defamation does not have to prove the literal truth of each and every detail of the alleged defamatory statement, but is only required to show that the "statement [i]s substantially true, that is, that the gist or sting of the statement [i]s true." Here, the general "gist or sting" of the poster complained of is that it implied that the respondent was involved with her son in wrongfully concealing the whereabouts and withholding custody of the child from the mother. The "sting" or defamatory significance of the poster was not the fact that the child was missing or the time frame thereof, but the respondent's insinuated involvement therein. To argue as the respondent does under the circumstances of this case is tantamount to arguing that a poster indicating that a person robbed a bank of a certain amount of money on a certain date was false even though the target of the poster admitted that he robbed the bank, but on a different date and of an amount different than that indicated on the poster. In that case, as here, regardless of the discrepancies, the sting of the poster would remain substantially true.
The respondent admitted at trial that she picked up Lauren from the mother's home on August 30, 1996, and then accompanied Kenney when he took Lauren to the Lake of the Ozarks the next day. The respondent also testified that before they left for the Lake of the Ozarks she overheard Kenney tell Lauren's mother that he would be keeping Lauren until the hearing on Tuesday, and he would not tell her where they were going to be until that time. Thus, in light of our discussion as to the definition of missing, there was certainly evidence from which a reasonable jury could infer that the respondent's granddaughter was missing and that the respondent was involved, and the fact that the child was no longer missing on the date of viewing of the poster would not change the truth of the "gist or sting" of the poster, which was posted, according to the respondent's evidence, on September 1, 1996, which was prior to the child's return on September 3, 1996.
We suppose the argument could be made, although unsuccessfully, that even though the jury was misdirected on the issue of which party had the burden of proof on whether the alleged defamatory statements on the poster were false, manifest injustice or a miscarriage of justice did not result in that the jury ultimately deliberated on the issue, via the appellant's affirmative defense instruction, and found against the appellant. The problem with this argument is that in order to return a verdict for the respondent on her claim of defamation, the jury necessarily had to find against the appellant on its affirmative defense of truth, but in doing so under the instructions given, it did not have to find that the alleged defamatory statements in the poster were false. Rather, because the issue was instructed upon as an affirmative defense, with the burden of proof being placed on the appellant, the jury was allowed to find against the appellant on its defense of truth if: (1) it found that the statements were false; or (2) it was unpersuaded by the evidence as to the truth or falsity of the statements, in that the risk of non-persuasion falls on the party with the burden of proof. In Interest of Coots , 877 S.W.2d 245, 247 (Mo.App. 1994). In light of the evidence in the record, the jury may very well have been unpersuaded as to whether the statements in the poster were false or true. Consequently, had the jury been properly instructed, with the burden being placed on the respondent to show that the alleged defamatory statements in the poster were false, the outcome of this case may very well have been different.
Based on the foregoing, we find that the trial court's failure to instruct the jury in this case, pursuant to Overcast , on the requisite proof elements of the respondent's claim of defamation, specifically on the issue of falsity, was clear and obvious error that resulted in the respondent's being relieved of proving an essential element of her claim, which was in serious dispute at trial. Thus, applying the Harney standard set forth, supra, we find that the trial court committed plain error that resulted in manifest injustice or a miscarriage of justice to the appellant, requiring us to reverse the trial court's judgment and to remand the case for a new trial.
Inasmuch as we are reversing and remanding for a new trial, the appellant's claims of error are rendered moot, except those claims raised in Points II and VI. Because those claims raise legal issues that are likely to arise upon remand, we choose to address them. Ricklefs v. Ricklefs , 39 S.W.3d 865, 874 (Mo.App. 2001).
II.
In Point II, the appellant claims that the trial court erred in denying its motions for directed verdict and J.N.O.V. for failure to make a submissible case of defamation because "there was insufficient evidence that [the appellant] either published the poster in its store or intentionally and unreasonably failed to remove the poster from its store." Although cast in terms of sufficiency of the evidence to make a submissible case, in reading the appellant's argument, it is clear that in making this claim it is necessarily contending that the trial court erroneously declared and applied the law in concluding that failing to remove defamatory material from its property was sufficient under Missouri law to establish the requisite proof element of publication and instructing accordingly. In that regard, the record reflects that the respondent's theory at trial with respect to the proof element of publication and the theory on which her claim was ultimately submitted to the jury, was not the posting of the poster by the respondent, but its failure to remove it. The question for us then is whether the failure of the appellant to remove the poster could constitute publication under Missouri law.
As stated in Overcast , publication is a requisite proof element of defamation. 11 S.W.3d at 70. Publication is "simply the communication of defamatory matter to a third person." Dean v. Wissmann , 996 S.W.2d 631, 633 (Mo.App. 1999) ( citing Rice v. Hodapp , 919 S.W.2d 240, 243 (Mo. banc 1996); Herberholt v. DePaul Cmty. Health Ctr . , 625 S.W.2d 617, 624 (Mo. banc 1981)) . Stated another way, "[p]ublication requires a showing that the defendant delivered or caused to be delivered the allegedly libelous material to a third person." Willman v. Dooner , 770 S.W.2d 275, 282 (Mo.App. 1989). Although the traditional mode of publication occurs when the party who spoke or wrote the defamatory matter intentionally or negligently communicates it to a third party, the respondent points out that the Restatement (Second) of Torts § 577(2) (1977) posits another way in which publication can occur. Section 577(2) reads: "One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication." This was the mode of publication hypothesized in the respondent's verdict director. Our appellate courts have neither embraced nor rejected this mode of demonstrating publication as an element of proof in defamation, Dominick v. Sears, Roebuck Co . , 741 S.W.2d 290, 294 (Mo.App. 1987), such that this issue is a case of first impression.
This provision within the verdict director read: "After September 3, 1996, Defendant displayed a poster on its Missing Child bulletin board containing the statement that Lauren Kenney was missing and was last seen with Carolyn Kenney[.]"
Of the states that have considered whether to adopt the Restatement "failure to remove" mode of publication, all have done so except one. Hellar v. Bianco , 244 P.2d 757, 759 (Cal.Dist.Ct.App. 1952); Fogg v. Boston L.R. Co . , 20 N.E. 109, 110 (Mass. 1889); Tidmore v. Mills , 32 So.2d 769, 777-78 (Ala.Ct.App. 1947); Woodling v. Knickerbocker , 17 N.W. 387, 388 (Minn. 1883); S. Bell Tel. Tel. Co. v. Coastal Transmission Serv., Inc . , 307 S.E.2d 83, 88 (Ga.Ct.App. 1983); see also Tacket v. Gen. Motors Corp . , 836 F.2d 1042, 1046 (7th Cir. 1987) (holding that although Indiana had not yet accepted nor rejected the § 577(2) approach, it was the court's prediction that Indiana would adopt this approach when faced with such a decision) . In rejecting the alternative mode of publication in Scott v. Hull , 259 N.E.2d 160, 162 (Ohio Ct.App. 1970), the Court of Appeals of Ohio offered no salient rationale as to why.
The "failure to remove" mode of publication recognized by the Restatement is not without limitation. In that regard, Comment p of § 577 reads, in pertinent part:
[T]he duty [to remove] arises only when the defendant knows that the defamatory matter is being exhibited on his land or chattels, and he is under no duty to police them or to make inquiry as to whether such a use is being made. He is required only to exercise reasonable care to abate the defamation, and he need not take steps that are unreasonable if the burden of the measures outweighs the harm to the plaintiff. In extreme cases, as when, for example, the defamatory matter might be carved in stone in letters a foot deep, it is possible that the defendant may not be required to take any action at all. But when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it.
With this limitation, we think the alternative mode of establishing publication in defamation cases, "failure to remove," is reasonable, and we choose to follow those sister states that have adopted the Restatement approach.
III.
In Point VI, the appellant claims that the trial court erred in denying its motions for directed verdict and for J.N.O.V. for failure to make a submissible case because the missing child poster was privileged under the "fair report privilege." The privilege does not apply given the undisputed circumstances of our case.
In Shafer v. Lamar Publishing Company, Inc . , 621 S.W.2d 709, 711 (Mo.App. 1981), this state adopted the fair reporting privilege, as stated in Restatement (Second) of Torts: Defenses to Actions for Defamation § 611 (1977), as a defense to defamation. That section reads:
The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
Id . The appellant claims that this privilege extends to the missing child poster in our case "inasmuch as the poster reports information that is contained in the Investigation and Missing Person Reports that were issued by the Kansas City Police Department." The appellant confuses the reach of the privilege.
Even assuming, arguendo, that the privilege would apply to a report of a private individual as to official police actions, as the appellant contends, the privilege would not apply here inasmuch as the poster did not constitute a report of police action. Although the poster may have contained some information contained in the police reports, its purpose or function was not to report information to the general public concerning official police actions. Rather, from the mother's perspective, its purpose and function was to serve as a public notice to aid the return of her daughter. Even if this issue were not an impediment to the application of the privilege, an additional impediment exists.
Pursuant to Restatement (Second) of Torts: Defenses to Actions for Defamation § 611 cmt.c (1977): "A person cannot confer [the fair reporting] privilege upon himself by making the original defamatory publication himself and then reporting to other people what he had stated." That is essentially what happened here. Although it is not absolutely clear as to whether the poster appeared prior to or after the police reports in question, the police actions, which were allegedly reported in the poster, were clearly motivated by the same alleged defamatory information in the poster, all of which was supplied by the mother. While the mother, not the appellant, made the original alleged defamatory statements in the poster, given the fact that this was not a traditional publication case, but one of publication by "failure to remove," as discussed, supra, the appellant would stand in the shoes of the mother for purposes of the privilege. This is so in that the privilege in the case of publication by "failure to remove" would flow from the act of the person or entity in reporting the official police actions.
Conclusion
The judgment of the circuit court for the respondent on her defamation claim, awarding her $33,750 in compensatory damages and $392,083 in punitive damages, is reversed and the cause remanded for a new trial in accordance with this opinion.
Because we believe that this case presents questions of general interest and importance and the existing law of defamation needs re-examining, pursuant to Rule 83.02, we order this case transferred to the Missouri Supreme Court.
Howard, J., concurs.
I concur in parts II and III of the majority opinion. I likewise concur in the transfer of this case to the Supreme Court pursuant to Rule 83.02 because it involves issues of general interest and importance and clarification of the law of defamation will be beneficial.
While I also agree with the majority that Overcast v. Billings Mutual Insurance Company , 11 S.W.3d 62 (Mo.banc 2000), contains language that could be construed to bring about a change in the elements of a defamation claim, my reading of the opinion does not compel that conclusion.
In Overcast , it was undisputed that Mr. Overcast was a private figure. Thus, the appropriate verdict director would have been MAI 23.06(1). But the verdict director actually given was based on MAI 23.06(2), which is prescribed for use when the plaintiff is a public figure. Id . at 68, n. 6; MAI 23.06(2) . This instruction required Mr. Overcast to carry a far greater burden than the private figure verdict director, MAI 23.06(1), would have necessitated. For instance, it required him to prove that the statement at issue in the case was false, as opposed to the defendant merely being at fault for publishing the statement. The instruction also required Mr. Overcast to prove that the statement was written either "with knowledge that it was false, or with reckless disregard for whether it was true or false at a time when defendant had serious doubt as to whether it was true." Id .
Billings Mutual did not object to the defamation verdict director given by the trial court. Id . at 72. This was a logical strategic move because it was not in Billings Mutual's interest to object to the instruction. The instruction actually given required far more extensive evidentiary support than would have been required had the private figure verdict director, MAI 23.06(1), been given. So when Mr. Overcast mistakenly submitted his verdict director based on MAI 23.06(2), Billings Mutual wasn't about to complain.
On appeal, Billings Mutual did not challenge the defamation verdict director given by the trial court, once again because it was not in its best interest to do so. As a result, the instruction was not an issue in the appeal. And Billings Mutual could then argue, in effect, that there was not sufficient evidence to support some findings required. For example, it claimed, inter alia, that there was no publication and that there was no evidence that Mr. Overcast was damaged by the defamation.
In its opinion, the Court addressed those issues because they were the claims of error raised on appeal. And in discussing and ruling on those points, the Court did so on the basis of the verdict directing instruction that was actually given in the case, since there had never been any challenge to the instruction, either at trial or on appeal. Moreover, Billings Mutual did not assert that there was insufficient evidence to support a finding that the statement at issue was false. Id . at 70-71. Therefore, there was no reason for the Court to ever discuss or pass on the propriety of the verdict directing instruction.
Consequently, it is my view that the Overcast Court neither intended, nor effected, the significant change in the law of defamation that the majority finds. For this reason, I respectfully dissent as to part I of the majority opinion.
I am mindful that this court has previously relied on Overcast for the proposition that falsity is an element of defamation in regard to a private figure. See Deckard v. O'Reilly Automotive, Inc ., 31 S.W.3d 6, 18 (Mo.App.W.D. 2000).