Ukman v. Daily Record Company

• Decision Date: 15 June 1905
• Parties: UKMAN, Appellant, v. DAILY RECORD COMPANY
• Court: Missouri Supreme Court

88 S.W. 60

189 Mo. 378

UKMAN, Appellant, v. DAILY RECORD COMPANY

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Affirmed.

Bass & Brock for appellant.

(1) It is well settled that, where the words published are in writing and impute fraud, they are actionable per se regardless of whether or not a crime is charged. Sullivan v. Com. Co., 152 Mo. 268; Houstan v. Woolley, 37 Mo.App. 15; Lanius v. Druggist Pub. Co., 20 Mo.App. 12. And especially is this true when plaintiff is a man in business where the words touch him in his business. Nolinger v. Vogt, 88 Mo. 589; Rammell v Otis, 60 Mo. 365. (2) The law has special regard for the reputation of men which they have acquired as merchants or traders, and written words which impute to traders or other business men insolvency, financial difficulty, financial embarrassment, dishonesty, or fraud, or which are in any other manner prejudicial to them in the way of their employment or trade, are actionable per se. Herman v. Bradstreet Co., 19 Mo.App. 227. For instance, to write or print of a man in business, that he has made a fraudulent conveyance, is actionable per se. Simmons v. Burnham, 102 Mich. 189; Beardsley v. Tappan, 1 Blatchf. (U.S.) 589; Bentley v. Reynolds, 1 McMull, L. (S. Car.) 16. (3) Even though the words published be held not to be libelous per se, if the words are false and special damages are pleaded and proved, as in case at bar, and such damages are of a pecuniary nature, as loss of credit, the plaintiff makes his case and is entitled to go to the jury. Brown v. Smith, 13 C. B. 596, 76 E. C. L. 596; King v. Watts, 8 C. & P. 614; Western Union Tel. Co. v. Pritchett, 108 Ga. 411; Mentze v. Tuteur, 77 Wis. 236; Masters v. Lee, 39 Neb. 574. (4) The mere fact that at the time of the publication, as shown by plaintiff's evidence, the plaintiff had outstanding against him about four thousand dollars indebtedness to his Eastern creditors, said bills not being due for two and three months, and that if he had collected all that was due him from his customers, and applied all of his property at such time to the payment of the said indebtedness, he would not have been able to liquidate his indebtedness in full is no defense to his suit and does not destroy his right of action. To constitute a justification, the precise charge must be justified, and it is not sufficient to offer proof of another charge, though of the same general nature. Dennehy v. O'Connell, 66 Conn. 175; Robertson v. Hamilton, 16 Ind.App. 328; Hallowell v. Guntle, 82 Ind. 554; Downs v. Hawley, 112 Mass. 237; Gardner v. Self, 15 Mo. 480; Palmer v. Haight, 2 Barb. (N.Y.) 210; Andrews v. Vanduzer, 11 Johns. (N.Y.) 38; Hadock v. Naughton, 74 Hun 390; Trimble v. Foster, 87 Mo. 49.

W. B. Homer for respondent.

(1) The publication in question cannot be regarded as per se libelous. Legg v. Dunleavy, 80 Mo. 562; Nelson v. Musgrave, 10 Mo. 648; Price v. Whiteley, 50 Mo. 439; Minter v. Bradstreet Co., 174 Mo. 485; Spurlock v. Lombard Investment Co., 59 Mo.App. 225. (2) There is nothing in the colloquium showing any facts which would impute any offense to the plaintiff which would make the published words libelous. McManus v. Jackson, 28 Mo. 56; Powell v. Crawford, 107 Mo. 601; Bundy v. Hart, 46 Mo. 464; Christal v. Craig, 80 Mo. 367; Curry v. Collins, 37 Mo. 324. (3) Where words are not libelous on their face, an averment of falsity and malice alone is not sufficient. There must also be an allegation that such falsity was within the knowledge of the defendant at the time of the publication. 13 Ency. Plead. & P. 59. (4) It appearing from the plaintiff's own statement that he was at the time of the publication absolutely without any means to carry on his business successfully, and was wholly insolvent, he could not have been injured by the publication. Minter v. Bradstreet Co., 174 Mo. 444; Mitchell v. Bradstreet Co., 116 Mo. 240; Weltmer v. Bishop, 171 Mo. 110.

LAMM J. Marshall, J., not sitting.

OPINION

LAMM, J.

Suit for damages for an alleged libelous publication. At the close of plaintiff's case, the court gave an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took a nonsuit with leave. After an unlucky motion to set the nonsuit aside, plaintiff, on proper steps, perfected an appeal and brought his case here.

The paper issues may be formulated thus:

The petition alleges that plaintiff was engaged in selling cigars in St. Louis under the name of A. G. Ukman Cigar Company and in the conduct of his business had established and maintained an excellent credit with the business world at home and abroad. That defendant is a domestic corporation doing business in the city of St. Louis, printing, publishing and circulating among business people generally, including the business men having dealings with plaintiff, a daily paper known as the St. Louis Daily Record, and in an issue of that paper of date, the 3rd of February, 1902, "did utter, publish and circulate, of and concerning the plaintiff, the following false, malicious and libelous words: 'Bills of Sale. -- -- A. G. Ukman, 612 Chestnut, to Miss A. Handshiegel; Cigar Outfit, $ 1.00' -- meaning by said words to charge plaintiff with having transferred his said business and stock of cigars for the nominal consideration of $ 1 to the person aforesaid."

It was further alleged that defendant distributed said paper, containing said libel, among the business people aforesaid and they believed the libel to be true and thereby plaintiff had been injured in his business, credit and reputation, and people from whom he had bought cigars stopped them in transit, and persons from whom he had borrowed money or who had given him credit refused to lend him money or give him credit, and persons from whom he wished to buy goods on credit refused to sell him the same, so that, being unable, by reason of defendant's said libel, to pay his creditors the debts he owed, he was compelled on the 21st day of March, 1902, to file a petition in bankruptcy and was damaged in the premises in the sum of $ 10,000.

The material averments of the amended answer borrowed from the summary formulated by appellant are as follows:

"First. It admitted the defendant to be a corporation, its chief place of business in St. Louis, State of Missouri, and denied each and every other allegation in plaintiff's petition.

"Second. It is alleged that the defendant published a daily newspaper devoted to the publication of the records of the courts of the city of St. Louis; that said paper also sets forth transfers, recorded in the recorder's office in the city of St. Louis; that it is the custom of the recorder of deeds to furnish the defendant memoranda of transfers recorded in said office; that the recorder of deeds will not permit the defendant to take such information from the records, but required the defendant to receive the same from an agent of the recorder of deeds. Said answer further stated that on the 1st day of February, 1902, the said agent furnished to the defendant a memorandum under the heading 'Bills of Sale,' in the following language: 'A. G. Ukman, 612 Chestnut street, to Miss A. Handshiegel, cigar outfit, $ 1.00.' That on the 3rd day of February, 1902, the defendant published the same, but did not mean to charge the plaintiff with having transferred his business and stock of cigars for the consideration of one dollar, and did not mean to charge that the plaintiff had transferred his business and stock of cigars for any consideration; that as soon as the defendant learned that the consideration stated in the bill of sale was in fact $ 700 instead of $ 1, it at once published a correction of said error, under the same heading, with equal prominence for two successive days.

"Third. Said answer further alleged that the plaintiff did by bill of sale dated the 31st day of January, 1902, convey to Miss A. Handshiegel a certain stock of cigars and cigar fixtures, such as counters, show cases, wall cases, etc., located at 612 Chestnut street, city of St. Louis; that said publication was not libelous and did not injure the plaintiff; that the said cigar business of the plaintiff was conducted by him merely for the purpose of enabling him to sell some old fixtures and at a loss, and that at the time of the alleged publication, the plaintiff was insolvent and in a failing condition, and that said publication could not and did not injure the plaintiff.

"Fourth. The answer further stated, by way of mitigation of damages, that the business of the plaintiff was undertaken and conducted by him merely for the purpose of enabling the plaintiff to dispose of some old fixtures; business was conducted at a loss; that the plaintiff was in a failing and insolvent condition at the time of the publication and was not injured; that as soon as the defendant learned that the bill of sale was in fact executed, not for a consideration of $ 1, but for $ 700, it at once published a correction of said error."

The reply was in usual form.

The facts are as follows:

Ukman, having gathered experience by connection with tobacco concerns for several years, in 1900 commenced business in a venture of his own under the name and style of the A. G. Ukman Cigar Company, with a present capital of $ 600, and thereafter did a wholesale cigar business, first, at 805 North Fourth street and then at 409-411 Morgan street. In November, 1901, he started a retail cigar store at 612 Chestnut, and seems to have moved his wholesale business there and to have conducted it in the rear of that stand.

Prior to starting his retail store, and preparatory thereto, and thereafter, up to and inclusive of December, 1901, he...