Shattuc v. McArthur

• Decision Date: 01 October 1885
• Parties: SHATTUC v. McARTHUR and another. [1]
• Court: U.S. District Court — Eastern District of Missouri

25 F. 133

SHATTUC v. McARTHUR and another. ^[1]

United States Circuit Court, E.D. Missouri.

October 1, 1885

Krum &amp Jones, and Garland Pollard, for plaintiff.

Dyer Lee & Ellis, for defendants.

BREWER J., (orally.)

This case is for libel, and $50,000 damages are claimed. It is insisted that the answer contains no defense, and that therefore, plaintiff is entitled to judgment over the answer. Technically, I think his motion cannot be sustained unless the plaintiff is willing to take simply a judgment for nominal damages, which I suggested to him, and which is not desired. A judgment is the final determination of the rights of the parties. If an action is on a contract where the damages are liquidated and certain, and no defense is set up in the answer, then, doubtless, such a motion would prevail and the court would enter judgment for the amount due, as disclosed by the petition. But where the damages are unliquidated and uncertain, then, although a good cause of action be stated in the petition, and no defense disclosed by the answer, still the damages, being unliquidated, must be assessed upon inquiry, and until they are determined no judgment can be entered.

I might stop here; but, as counsel have discussed the merits of the pleadings, perhaps it may not be improper to go further and say how they impress me. The libel charged is this: that 'Mr. Shattuc (the plaintiff) has grown rich by making his local ticket agents, (meaning the local ticket agents of the Ohio & Mississippi Railway,) or some of them, divide their commissions with him. ' The petition alleges that Mr. Shattuc is the general passenger agent of such railway company. Now, even with the explanation tendered in the answer as to the meaning and general understanding of that charge, I think it is libelous. It may be true, as stated, that, to the general knowledge of the public, the local ticket agents are paid salaries by their employer, the railroad company, for all work done for it, and that beyond that, with the tacit approval of their employer, they are in the habit of selling tickets for other companies on commission, and that all that was meant, or understood to be meant, was that this plaintiff shared those commissions; and although such a charge is not of an unlawful act, yet it is one that it seems to me exposes the plaintiff to the contempt of honorable men, and thus comes within the definition of libel. The suggestion is not that by some arrangement between the company (the employer) and the various ticket agents (the employes) a part of the plaintiff's compensation should be derived from the sums thus received by these sub-agents, but it is that he 'has grown rich by making them divide their commissions. ' The idea conveyed,-- the natural understanding of the words,-- was that the plaintiff in some way used his official position and control over those sub-agents to compel a division of the moneys which they had earned. Now, I think no honorable man would approve of such conduct as that. The man that is burdened with a charge of that kind is placed before the world exposed to the contempt of honorable men. Take a similar instance.

We all know that in the management of Pullman sleepers the porters are permitted to receive gratuities from passengers for the little services that they render. If any local superintendent should coerce the porters to divide those little gratuities with him, should make their hiring conditioned upon their dividing those gratuities, it would not be illegal, but yet I think every honorable man would feel that it was discreditable; and so in this matter, when you charge that a general agent coerces local agents to divide sums which they have earned by their services, it seems to me you are charging upon him that which exposes him to general contempt.

The answer, I think counsel practically concede, makes no defense to the action. While there is a general denial, yet it subsequently admits the publication. It does not justify it,-- does not say that the charge is true,--but it sets up a series of matters which are merely matters in mitigation. It says that the defendant had reasonable grounds to believe that the charge was true. Concede that; that may go in mitigation of damages, but certainly that is no defense. A man may have reasonable grounds to believe that one of the judges of this court is corrupt in office. If he makes a direct charge to that effect, his belief does not make it true, or any the less a libel. It may go to the jury, and influence them in mitigating damages which should be awarded against him. So, when this charge, libelous in its nature, is made against a general passenger agent, it is no defense to the action that the party believed it to be true, and so did not act through malice. It goes only in mitigation of damages. So the fact that the plaintiff had made prior newspaper charges against the defendant is no defense. I do not understand that you can defend one tort by proving a counter-tort. You cannot defeat an action for one libel by proof that prior to that time the plaintiff himself libeled the defendant. This answer, so far as all the charges that are said to have been made by the plaintiff are concerned, is not of matters germane or kindred thereto, or in explanation or refutation of them, but is a distinct charge of an independent matter; and, while provocation may be shown in mitigation of damages, yet only in mitigation. Now, it would be idle to strike out this answer, because, although it sets up nothing but matters in mitigation of damages, yet if it was stricken out and inquiry had before a jury as though no answer were filed, these matters could be offered in evidence; and so it would be purely a work of supererogation to go through the form of striking out the answer.

The motion for judgment over the answer will be overruled.

NOTE.

Slander and Libel-- Actionable Words.

1. WORDS ACTIONABLE PER SE. Any article that holds a person up to scorn and ridicule, contempt, and execration, or imputes or implies the commission of a crime not openly charged, is. Crocker v. Hadley, 1 N.E.Rep. 734; Bradley v. Cramer, 18 N.W. 268. The fact that the article is in a foreign language does not prevent it being actionable per se. Kimm v. Steketee, 12 N.W. 177.

Words intended to expose a person to public contempt, hatred, and ridicule, and to deprive him of the benefit of public confidence and social intercourse, are actionable per se, Call v. Larabee, 14 N.W. 237; such as circulating hand-bills, charging a person with larceny is actionable per se, Bowe v. Rogers, 7 N.W.Rep. 547; charging a man with being a 'hog,' is. Solverson v. Peterson, 25 N.W. 14. Accusing a married woman of being a prostitute, Klewin v. Bauman, 10 N.W. 398; or charging that 'she is slow-poisoning her husband,' Campbell v. Campbell, 11 N.W. 456; words charging commission of an indictable felony or misdemeanor, West v. Hanrahan, 10 N.W. 415; Geary v. Bennett, Id. 602. But charging one with 'bearing down' when defendant's stock was weighed, and 'lifting up' when plaintiff's was weighed, are not actionable unless it be also charged that plaintiff was weigh-master, or in some way interested. Wilkin v. Tharp, 8 N.W.Rep. 467. And it has been held that charging a person with having sworn falsely in a lawsuit is not. Schmidt v. Witherick, 12 N.W. 448. A publication in newspaper falsely charging one with the commission of crime, is. People v. Detroit Post & Tribune Co., 20 N.W. 528. And a publication in writing, though not charging a public offense, is nevertheless libelous if it falsely and maliciously tends to produce such an impression. Bradley v. Cramer, 18 N.W. 268. And where a railroad company, through its superintendent, assigns as a reason for the discharge of an employe a criminal act, it is actionable. Bacon v. Michigan Cent. R. Co., 21 N.W. 324.

(1) Words Respecting Business Men and Merchants. Words which impute to a merchant a want of credit or responsibility, or insolvency, past, present, or future, are. Newell v. How, 17 N.W. 383. Every publication in writing or in print, which charges upon or imputes to a merchant or business man insolvency or bankruptcy, or conduct which would prejudice him in his business or trade, or be injurious to his standing and credit as a merchant or business man, is. Erber v. Dun, 12 F. 526. An article in print, depreciating a merchant's or tradesman's wares, and charging him with counterfeiting genuine articles and their labels, is. Kimm v. Steketee, 12 N.W. 177. Where a bank cashier returned draft sent for collection with these written words, 'We return unpaid draft, (describing it;) he (drawee) pays no attention to notices,' in action against the cashier for libel it was held that the words do not impute to plaintiff (drawee) any want of integrity, and are not actionable per se. Platto v. Geilfuss, 2 N.W.Rep. 1135.

(2) Words Regarding Professional Men. Defamatory words spoken or written of one in his profession are actionable per se. Pratt v. Pioneer Press Co., 20 N.W. 87.

(a) Regarding Lawyers. Charging an attorney with 'betraying and selling innocence in a court of justice,' is. Ludwig v. Cramer, 10 N.W. 81.

(b) Regarding Physicians. Where the words employed in a publication in a newspaper, in stating the conduct of a physician in a particular case, only impute to him such ignorance or want of skill as is compatible with the ordinary or general knowledge and skill in the same profession, they are not actionable per se; but where they are such as fairly impute to him gross ignorance and unskillfulness in such matters as men of ordinary knowledge and skill in the profession should know and do, then they necessarily tend to bring physician into public hatred, ridicule, or professional...