Axton-Fisher Tobacco Co. v. Evening Post Co.

• Decision Date: 09 March 1916
• Citation: 169 Ky. 64,183 S.W. 269
• Parties: AXTON FISHER TOBACCO CO. v. EVENING POST CO. ET AL. [a1]
• Court: Kentucky Court of Appeals

183 S.W. 269

169 Ky. 64

AXTON FISHER TOBACCO CO. v. EVENING POST CO. ET AL. ^[a1]

Court of Appeals of Kentucky.

March 9, 1916

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by the Axton Fisher Tobacco Company against the Evening Post Company and others. From a judgment for defendants, plaintiff appeals. Reversed, with directions.

Burton Vance, of Louisville, for appellant.

Humphrey Middleton & Humphrey, and Gibson & Crawford, all of Louisville, for appellees.

CARROLL J.

This is a libel suit brought by the Axton Fisher Tobacco Company, a corporation engaged, in Louisville, Ky. in manufacturing and selling smoking and chewing tobacco, and especially in the manufacture and sale of the brands known as "Old Hill Side" and "Booster Twist." The defendants are the Evening Post Company, the publishers of the Evening Post, a daily newspaper in the city of Louisville having a wide circulation in that city and elsewhere, and Richard W. Knott, editor, and Lewis C. Humphrey, associate editor of the paper. To the petition and amended petition of the plaintiff general demurrers were filed by the defendants and sustained, and, declining to plead further, the petitions were dismissed, and the plaintiff brings the case to this court.

The demurrers admit the truth of all the material averments in the petition and amended petition, and so the only question before us is: Did these pleadings, assuming the averments to be true, state a good cause of action against the defendants?

The petition, after averring that the plaintiff was engaged in manufacturing and selling smoking and chewing tobacco, further averred:

That it "had been for many years prior thereto especially engaged in the manufacture and sale of its brands of smoking and twist tobacco widely and favorably known as 'Old Hill Side' and 'Booster Twist,' and it had, on and prior to said dates, acquired, enjoyed, and deserved a good reputation with the trade and the public as a manufacturer of tobacco, and especially of said brands of tobacco, and had built up, enjoyed, and deserved an extensive demand for, and sale of, its said products and brands of tobacco from which it received a valuable and ever increasing profit.

"That in the introduction of its said brands of tobacco 'Old Hill Side' and 'Booster Twist' to the trade and the public throughout the United States, and in establishing their said good reputation, and in acquiring said good reputation with, and good will of the trade and public, as a manufacturer of tobacco, and as the manufacturer of said brands of tobacco, it expended a great many thousands of dollars, and said brands, and plaintiff's reputation and good will therein, constituted plaintiff's most valuable asset, and was on said several dates fairly and reasonably worth the sum of $300,000.

"That it had, for many years, at all times operated a union factory and employed union labor in the manufacture of its said tobacco, and had at all times paid its employés engaged in its manufacture the union scale of wages, and in many instances largely in excess of the union scale, and at all times and in all ways dealt fairly and justly with its employés; and by reason of these facts it had on said dates acquired and enjoyed a good reputation with, and the good will of, organized labor and wage-earners in Kentucky and throughout the United States, and had especially acquired with them a valuable reputation and good will as the manufacturer of and for 'Old Hill Side' and 'Booster Twist' as union-made tobaccoes, and had built up and enjoyed an extensive demand for and sale of said tobacco to them, which constituted the larger part of the demand for said brands.

"That, at all the times hereinbefore and hereinafter mentioned or referred to, plaintiff was conducting and operating its said business and its said factory as a unionized factory pursuant to the terms of a contract existing between it and the Tobacco Workers' International Union, a corporation organized and existing under an act of the Congress of the United States of America, by which said union granted to it the right to place on tobacco manufactured by it the label of said union and bound itself to furnish all the said labels required by plaintiff for said purpose, and in consideration of which plaintiff obligated and bound itself to said union that, among other things, 'all persons employed by it in the manufacture of tobacco should be members of the Tobacco Workers' International Union exclusively,' and 'that it would pay to its said employés the scale of wages approved of and agreed to between it and said union.' That at all said times a scale of wages was in force between it and said union under said contract which had been approved and agreed upon between it and said union.

"That the right granted it by said contract to affix said union label to tobacco manufactured by it was a very valuable asset to it in its said business, and by the terms of said contract a failure upon its part to strictly comply with its obligations to pay to its employés wages according to the said scale of wages agreed upon would operate to deprive it of the further use of said union label."

By paragraph 1, it was averred:

"That in several editions of the Evening Post printed, published, and circulated by the defendants on October 4, 1913, they willfully, knowingly, and maliciously published of and concerning the plaintiff and its business of manufacture of tobacco, of and concerning the wages paid by it in its factory to its employés, of and concerning its methods of conducting its business, and of and concerning the character and kind of men it employed as foremen in its factory, the following false and defamatory statements:

'Axton (meaning plaintiff) has negro foreman over white men. That official figures furnished the State Labor Department show that Mr. Axton (meaning plaintiff) pays an average wage considerably less than that paid by the American Tobacco Company, Official Record: Here is what the official record of the State Department of Labor and Statistics shows about the Axton corporation's tobacco factory (meaning plaintiff's factory) compared with other factories: The tobacco trust pays many of its employés wages as high as $14.95 per week; the Burley Tobacco Company pays as high as $12 per week; while the highest wage the Axton factory (meaning plaintiff) pays to any of its employés is $8.75 per week.

The sanitary conditions provided by the other factories are also shown by the records to be much better than those furnished by the corporation (meaning this plaintiff) of which Mr. Axton is the head.

Here are official figures: Axton Fisher Tobacco Factory, Thirteenth and Rowan: Number of hours per day, 10; number of hours per week, 59; highest wages, $8.75; average wage, $7.

American Tobacco Company, Eighteenth and Broadway; Number of hours per week, 55; highest wage, $14.95; average wage, $7.50.

Burley Tobacco Company, Jackson and Caldwell: Number of hours per week, 50 to 55; highest wage, $12; average wage $8.

Think of even the tobacco trust paying better wages and giving shorter hours and better sanitary conditions than the Axton corporation's factory (meaning plaintiff).

In his (meaning plaintiff's) factory he (meaning plaintiff) puts negro foremen over white men. It is another example of his (meaning plaintiff's) double dealing with laboring men. He (meaning plaintiff) don't dare deny it.

A negro named Brown was foreman on the third and fourth floors of Axton's factory (meaning plaintiff's factory) and that he had many white men under him. This is the same Wm. H. Brown, colored, whose name appears in the city directory, page 230, as foreman of the Axton Tobacco Factory.

For three years prior to March, 1913, during the entire three years, a negro named Brown was foreman on the third and fourth floors of the Axton Fisher Tobacco Factory, and many white men worked under him at the factory.

Among the number employed upon the third floor under Brown were a large number of white men. * * *' " In paragraph 2, it was averred that:

In several editions of the paper printed, published, and circulated on October 5, 1913, the defendants "willfully, knowingly, and maliciously published of and concerning the plaintiff and its business of manufacturing tobacco, and of and concerning the wages paid by it to its employés in its factory, the following false and defamatory statements:

" 'Axton's (meaning plaintiff's) average wage is lowest. Records of all factories. Official proof is given. Mr. Ben. J. Sand, the State Labor Inspector, made a statement Monday morning.

Mr Sand states that the records of the state show that the charges made by Dr. Buschmeyer are entirely correct, and that Mr. Axton (meaning plaintiff) does not permit the eight-hour rule in his (meaning plaintiff's) factory, and pays wages less even than those of the American Tobacco Company. There are in Louisville only four tobacco factories where smoking tobacco is manufactured. They are located as follows: American Tobacco Company, Eighteenth and Broadway, employing two hundred and sixty-three females; Burley Tobacco Company, employing thirty females in the manufacture of smoking tobacco; American Tobacco Company, Jackson and Finzer streets, employing one hundred and thirty-six females; Axton Fisher Tobacco Company, Thirteenth and Rowan streets, employing sixteen females. The Axton Fisher Tobacco Company works fifty-nine hours a week, while the American Tobacco Company works but fifty-five, with a Saturday half holiday throughout the year. The Axton Fisher Tobacco Company does not give its employés a half holiday. The only other union tobacco factory, which is the Burley Tobacco...