Riley v. Dun & Bradstreet, 10674.

• Decision Date: 02 February 1949
• Docket Number: No. 10674.,10674.
• Citation: 172 F.2d 303
• Parties: RILEY v. DUN & BRADSTREET, Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

172 F.2d 303 (1949)

RILEY v. DUN & BRADSTREET, Inc.

No. 10674.

United States Court of Appeals Sixth Circuit.

February 2, 1949.

Whitworth Stokes, of Nashville, Tenn., and Frank J. Glankler, of Memphis, Tenn. (Whitworth Stokes, of Nashville, Tenn., and Frank J. Glankler (of Canale, Glankler, Loch & Little), of Memphis, Tenn., on the brief), for appellant.

Sam P. Walker, of Memphis, Tenn. (Sam P. Walker (of Waring, Walker & Cox), of Memphis, Tenn., on the brief), for appellee.

Before HICKS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.

HICKS, Chief Judge.

This was a libel suit. Appellant, Riley, on August 13, 1946, filed his complaint, in which he charged appellee, Dun & Bradstreet, Inc., with publishing libelous matter about him in certain credit reports. The original complaint was followed by two amended complaints and by a substituted complaint filed on July 11, 1947. On motion of appellee the cause was dismissed upon the ground that the substituted complaint failed to state a cause of action. The parties agreed that the sufficiency of the substituted complaint was the only issue before the court.

This appeal is from the order of dismissal.

All statements of allegations are taken from the substituted complaint. Count I alleged that prior to 1942 the plaintiff and his wife operated businesses for the repair, reconditioning, etc., of steel storage tanks; that in that year he was operating at Springfield, Ill., and that since then as a citizen and resident of Memphis, Tenn., he had operated throughout the United States as Dixie Tank & Bridge Company; that as an inducement to customers he made guarantees with reference to his work and that his success in obtaining contracts depended upon his ability to make good his guarantees. He further alleged that his credit was excellent and that no question as to his business integrity had been raised prior to the matters thereinafter alleged.

He alleged that appellee was a mercantile agency issuing credit reports and collecting and supplying credit information to subscribers generally throughout the United States; that prior to 1942 appellee reported his credit history and that of his wife favorably and truthfully, including his change of name in 1942 from Peitzman to Riley; that he and his wife subscribed to the service and supplied information requested.

He further alleged that in the summer of 1943 appellee abruptly changed its reports with reference to appellant and included libelous matter in what purported to be a factual report; that in the report of January 4, 1944, it stated the following:

"Records of the Circuit Court of Taylorville, Ill., show that William Peitzman was indicted in November, 1921, for violation of the prohibition act, case No. 6709. This case was nolle prosequied September 17, 1923. Records of the same court show that William Peitzman was again indicted for violation of the prohibition act, case No. 1903, and that he pleaded guilty to Counts 3 and 5, while Counts 1, 2 and 4 were nolle prosequied, on motion of the state's attorney. He was released on bail and later discharged. Records of the same court show that * * * Peitzman was indicted for resisting an officer, case No. 1904. This indictment was nolle prosequied November 29, 1922.

"Records of Christian County Circuit Court, Taylorville, Ill., show that in March, 1924 * * * Peitzman was indicted for burglary and larceny, case No. 7806. On March 26, 1926, the case was stricken with leave to reinstate."

It appears that the report of October 9, 1944 was almost identical with that of January 4th just quoted except that it showed case No. 6709 was nolle prosequied on September 17, 1943, and that No. 1904 was nolle prosequied on November 29, 1942. It further appears that a second report of October 9, 1944 continued to show that case No. 6709 was nolle prosequied September 17, 1943, and indictment No. 1904 on November 29, 1942, and amplified the second paragraph of the January 4, 1944 report, by the addition at the end thereof of the following sentence, to wit: "Riley attributed these mistakes of his youth to his early environment, and claims that there were extenuating circumstances in each of the cases indicated by the fact that most of the charges against him were dropped."

It alleged that on May 26, 1945 appellee issued a report which modified previous reports, but which stated:

"Records of the Circuit Court, Taylorville, Illinois show that * * * Peitzman was indicted in November, 1921, for violation of the prohibition act, case No. 6709 (also known as case No. 1903) involving five counts * * * pleaded guilty to * * * 3 and 5, * * * 1, 2 and 4 were nolle prosequied. * * * He was released on bail and later discharged. Records * * * also show that * * * Peitzman was indicted at the same time for resisting an officer, case No. 1904 * * * nolle prosequied November 26, 1942.

"Records * * * Taylorville * * * show that in March 1924 * * * Peitzman was indicted for burglary and larceny, * * * No. 7806. On March 26, 1926 the case was stricken with leave to reinstate. Riley attributes this mistake of his youth to his early environment, and claims there were extenuating circumstances in each of these cases."

The report issued on June 22, 1946, although containing some minor changes, varied in only one particular, i. e., the date for nolleing the indictment for resisting an officer again appeared as "November 29, 1922."

It alleged that appellee published numerous copies of the reports which were seen by subscribers and nonsubscribers of its service; that the statements that cases Nos. 6709 and 1904 were nolled respectively on September 17, 1943 and November 29, 1942, were false and known by appellee to be false; that matter as to the indictments was of public record prior to 1943 in Taylorville and could have been known by appellee to be false; that matter as to the indictments was of public record prior to 1943 in Taylorville and could have been known by appellee by the most casual investigation and would have revealed that the violation of the Prohibition Act involved a wine making episode by appellant and some other boys; that none was made for sale; that no criminal intent was shown, and that appellant was placed on probation and discharged; and would further have revealed that case No. 1904 for resisting an officer did not involve appellant at all but another person by the same name, and that the prosecutor, Henry Pfan, in case No. 7806 for larceny of chickens, openly stated that appellant had nothing to do with the theft and was not guilty as charged.

It further alleged that the reports of October 9, 1944, May 26, 1945 and June 22, 1946, carrying the statement to the effect that Riley attributes these mistakes of his youth to his early environment and states there were extenuating circumstances, were false, but, that on the contrary, he was not guilty except in the wine making case and he denied criminal intent as to that.

It further alleged that all of these matters could have been known by appellee prior to the summer of 1943 and that their inclusion in the reports was malicious and for the sole purpose of injuring appellant; that all the reports were written and that each of the subsequent reports referred back on its face to all prior reports and thus reestablished them, and that all such reports were continuously circulated by appellee and others to whom they had been furnished up to the date of the suit.

One of the grounds upon which the court sustained appellant's motion to dismiss was that the reports of June 4th and October 29, 1944 and of May 26, 1945, were barred by the statute, Williams' Code of Tenn. Sec. 8595, limiting the bringing of actions for libel to within one year after the cause of action accrued. For convenience, we dispose of this matter here.

In view of the allegations of the substituted complaint next above, which we have italicized, that on June 22, 1946, less than two months before appellant's action was commenced, there was in substance a re-publication of earlier reports, we think that the court was in error. An authorized repetition or successive publication of libelous matter affords in itself a right of action. Harris v. Nashville Trust Co., 5 Tenn.Civ.App. 678, 680.

The substituted complaint further alleged that appellee reported on May 26, 1945, the following:

"In certain instances litigation has resulted from the manner in which some of the jobs undertaken are alleged to have been performed.

"Records of the U. S. District Court of Cape Girardeau, Missouri show that the city of Illmo, Missouri, brought an action against E. H. Peitzman and William Peitzman d/b/a U. S. Elevated Tank Maintenance Company to recover for damages to its property alleged to have been done by the defendants in performing certain work upon plaintiff's water tank and standpipes. After trial before a jury, verdict was rendered on April 29, 1943, in favor of the plaintiff, assessing the defendants $4,000 actual and $10,000 punitive damages. Defendant appealed to the U. S. Circuit Court of Appeals, St. Louis, Missouri, and on April 17, 1944, Judge Gardner of that court, handed down a decision affirming the judgment of the District Court Peitzman v. City of Illmo, 141 F.2d 956."

The complaint alleged that up to June 28, 1946, appellee continued to report this judgment as outstanding against appellant when the records of the District Court showed satisfaction of the judgment on March 5, 1945, and appellant so informed appellee's District Manager at Memphis and advised him that the fact could be verified by cou...