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.
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
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
the said Knight, Yancey & Co., and cast suspicion on
plaintiff in connection therewith, and that the same was in
these respects inaccurate, false, malicious, and libelous,
and was not a fair and correct report of said judicial
proceedings; that said items published as aforesaid were
given wide circulation by defendant in Alabama and elsewhere,
and that said publication of and concerning plaintiff in
direct connection with said fraudulent transactions of
Knight, Yancey & Co., had reference to plaintiff's
business, his finances, and his alleged intentions to abandon
his residence and place of business in Mobile, Ala., and
that, being published during the investigation of said
failure (the Knight and Nesbitt referred to in said
publication being members of said firm of Knight, Yancey &
Co.) and conveying false meaning and impression above
mentioned, thereby directly and proximately cast suspicion
upon plaintiff on the part of the cotton and shipping trade,
brought him into public contempt and disrepute, injured
plaintiff in his said business and calling, and in his
reputation, credit, and good name, and caused him to suffer
great mental pain, anguish, humiliation, mortification, and
distress; cast such suspicion upon plaintiff, or upon his
integrity on the part of the cotton or shipping trade as to
make it impossible or impracticable for plaintiff to pursue
with the business and employment above referred to and cause
plaintiff to lose labor and time devoted by him and the sums
expended by him in said trip to England, and otherwise in
connection with the organization of said shipping or
steamship company; caused plaintiff to be deprived of
employment by and association in said organization, and to
lose the salary agreed on thereof; and caused plaintiff to be
permanently or for a long time prevented from following his
said business of shipping agent with desirable shipping
interests and to lose much time and money--all of which
proximately resulted from the publication complained of, to
the damage of p
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