Age-Herald Pub. Co. v. Waterman, 6 Div. 366

• Court: Supreme Court of Alabama
• Writing for the Court: SOMERVILLE, J.
• Citation: 202 Ala. 665,81 So. 621
• Parties: AGE-HERALD PUB. CO. v. WATERMAN.
• Docket Number: 6 Div. 366
• Decision Date: 06 February 1919

81 So. 621

202 Ala. 665

AGE-HERALD PUB. CO.
v.
WATERMAN.

6 Div. 366

Supreme Court of Alabama

February 6, 1919

Rehearing Denied April 10, 1919

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by John B. Waterman against the Age-Herald Publishing Company for damages for libel. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A complaint charging a libelous publication implying that plaintiff had criminal knowledge of certain fraudulent transactions involving issuance of spurious bills of lading, and that he had gone abroad and did not intend to return because of his connection with such frauds, etc., held not demurrable.

Where the occasion is not one of privilege, the falsity of an alleged libelous publication is presumed. [81 So. 622]

For former report of this case, see Age-Herald Co. v. Waterman, 188 Ala. 272, 66 So. 6, Ann.Cas. 1916E, 900.

The trial was had on count 2 of the complaint as last amended, which is as follows:

Plaintiff, John B. Waterman, claims of the defendant Age-Herald Publishing Company, a corporation, the sum of $30,000 damages for falsely and maliciously publishing of and concerning plaintiff, in a newspaper published in Birmingham Jefferson county, Ala., called Birmingham Age-Herald, on, to wit, the 28th day [81 So. 623] of May, 1910, with intent to defame plaintiff, a statement in substance as hereinafter set out; and plaintiff avers that shortly before the publication aforesaid a firm or concern known as Knight, Yancey & Co., which had been for several years engaged in buying and selling cotton on a large scale with its main offices in Alabama, and with customers in the chief foreign centers, such as Liverpool, Bremen, Havre, and like ports, had failed, and had filed its petition in bankruptcy in the federal court for the Northern district of Alabama, and had been adjudged a bankrupt, with heavy liabilities alleged in the course of said bankruptcy proceedings, and widely understood by cotton brokers and factors, transportation men, and the general public whose attention had been directed to the said proceedings as representing or growing out of the negotiation of a vast amount of spurious and fraudulent bills of lading for cotton which falsely purported on their face to represent cotton delivered to a railroad or steamship line. Plaintiff avers that there existed a general and intense interest in the cotton and shipping trade as to the supposed frauds and as to the methods by which and the persons by whom the same had been committed, so that any suggestion of complicity in or knowledge of said frauds on part of any railroad or steamship agent who had been handling business or had issued bills for said firm over his line would tend to cast suspicion upon him in the eyes of the public, as a possible accomplice.

Plaintiff avers that at the time of the alleged publication, and for many years prior thereto, plaintiff's business and vocation was and had been that of freight or shipping agent, contractor, or representative in Mobile, Ala., cotton constituting a large proportion of the freight handled, and that plaintiff then resided in Mobile, Ala., intending to reside and continue his business at that point, having completed the preliminary organization of a shipping company, to wit, the Mobile Liners, Incorporated, to represent on a commission basis, among others, the Leyland and the Harrison Lines, the largest among the largest cotton carrying steamship lines in the world, of which organization plaintiff was to be its manager, at a salary of, to wit, $4,000 per annum and a fifth interest in the business, with plaintiff's permanent office in Mobile, and that a short while before this publication herein complained of plaintiff had proceeded to England in furtherance of his said company, at a great personal expense to himself, and was on, to wit, the date of the issue of the said publication, to wit, May 28, 1910, on board ship, or had engaged passage and was about to embark on his return journey.

Plaintiff further avers that in the course of what purported to be an account of a hearing in the said bankruptcy proceedings, in which witnesses were examined relative to the affairs of said bankrupt firm, the defendant falsely and maliciously, and with intent to defame plaintiff, published in its said newspaper, of the issue of May 28, 1910, immediately following a paragraph of said publication relating to a suggestion of criminal knowledge on part of others than one of the members of said firm, without giving the correct or proper context, connection, or sequence, the following matter of and concerning plaintiff, the paragraphs first set out hereinafter, down to and including the words "upon which no shipments had been made when outstanding," being included for the purpose of showing the context, and the "Watterman" referred to in said publication being the plaintiff:

"Nesbitt Next Heard.

"After Mr. Yancey came W.D. Nesbitt, the Birmingham member of the firm, who went to Huntsville and placed the company in the hands of the receivers, the testimony of Mr. Nesbitt was not essentially important, inasmuch as he, like Mr. Yancey, was not familiar with the operations of Knight, Yancey & Co., except in a general way.

" 'I was called to Decatur Saturday night preceding the failure,' began Mr. Nesbitt, 'by a telegram from John Knight. Sunday morning I went into consultation with John 'Knight. In half hour I knew the firm was hopelessly insolvent, and I immediately mapped out a plan to have receivers appointed. Knight did not try to shield himself, but made a complete confession to me. He said that the firm was short about $6,000,000, and that speculation caused it. He volunteered the information that bills of lading calling for $36,000 bales of cotton upon which no shipments had been made were outstanding.'

"In answer to a question as to whether Mr. Knight implicated others in the criminal knowledge relative to false bills of lading, the witness said: 'Knight intimated to me that others knew of the fake bills of lading. His intimations were not sufficiently distinct for me to even hazard a guess as to whom he referred. I then told him to shut up, as I did not care to hear any more about it. I simply wished to know how bad we were stuck and then get remedies, to which the creditors were justly entitled.'

"Loan to Watterman.

"Mr. Nesbitt was closely questioned by Mr. Benners in regard to a loan of $5,000 which was made to a Mr. Watterman, agent for a Mobile steamship line. It developed that the general belief is that Watterman is abroad and does not intend to return. Mr. Nesbitt said he knew Watterman, but did not know a loan was made to him by Knight, Yancey & Co. Mr. Nesbitt, however, qualified his statement by adding that he presumed it was simply a personal matter between Mr. Knight and Mr. Watterman.

" 'Did Mr. Knight mention this loan to you?' was the question asked by Mr. Benners. 'He did,' said Mr. Nesbitt. 'He also told me that the mention of the loan publicly would reflect upon Mr. Watterman.' 'What did he mean by the word "reflect"?' 'I do not know,' answered the witness. The information was disclosed that

several large shipments of cotton had been made by way of the line represented by Watterman. It was also brought to light that several curious bills of lading are held upon which cotton was supposed to have been routed by the line represented by Watterman."

The plaintiff avers that said article above quoted and published by the defendant as aforesaid implied and conveyed the meaning, among others, that plaintiff, a resident of Mobile, had permanently absented himself in connection with the matters referred to in said publication, and had dishonorable connection with the affairs of [81 So. 624] the said Knight, Yancey & Co., and cast suspicion on plaintiff in connection therewith, and that the same was in these respects inaccurate,

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