Becker v. Toulmin

• Decision Date: 28 November 1956
• Docket Number: No. 34722,34722
• Citation: 138 N.E.2d 391,165 Ohio St. 549
• Parties: , 60 O.O. 502 BECKER, Appellee, v. TOULMIN, Jr., Appellant.
• Court: Ohio Supreme Court

Page 549

165 Ohio St. 549

138 N.E.2d 391, 60 O.O. 502

BECKER, Appellee, v. TOULMIN, Jr., Appellant.

No. 34722.

Supreme Court of Ohio.

Nov. 28, 1956.

On July 26, 1951, Walter Becker, hereinafter designated plaintiff, instituted an action in the Court of Common Pleas of Montgomery County against Harry A. Toulmin, Jr., hereinafter designated defendant.

In his petition plaintiff alleges substantially as follows:

Plaintiff is a patent agent specializing in the handling of foreign patent matters, with particular knowledge of German patent law and procedure and of the German language and with many valuable professional contacts with patent attorneys in Germany and other foreign countries. For many years he was employed as a patent agent by defendant, until plaintiff chose to resign from such employment on May 11, 1951. Shortly after plaintiff's resignation, defendant falsely and maliciously and with the purpose of injuring plaintiff in his profession published and circulated among plaintiff's professional colleagues and contacts in other countries the report, in writing, that defendant had found it desirable to terminate plaintiff's employment as a patent agent. The meaning intended to be conveyed by such false report was that plaintiff's professional services had been unsatisfactory and that he was dismissed in consequence thereof. Such false publication probably raised doubts as to plaintiff's professional ability and competence in the minds of the foreign patent attorneys with and through whom plaintiff had expected to carry on mutually profitable professional exchanges in future years.

In his petition plaintiff then states that he has been damaged in the sum of $50,000 and prays judgment against defendant for that sum, with costs.

Defendant filed an amended answer, admitting that plaintiff is a patent solicitor, with knowledge of the German language, and was for many years employed by defendant as a patent agent until such employment was terminated on May 11, 1951; and that thereafter defendant notified his European clients and associates, with whom he had business relations during the period of plaintiff's employment, of such termination, which was justified under the circumstances.

Defendant denies generally all allegations of the petition not specifically admitted to be true.

Plaintiff filed a reply to defendant's amended answer.

Upon the trial of the case, it appeared that defendant is an attorney specializing in patent and corporation law and employing 25 to 40 employees in his Dayton office, with many profitable business contacts in foreign countries.

On November 4, 1936, plaintiff immigrated to the United States from Germany and was employed by a New York patent attorney for a brief period. Thereafter he was employed by a New York patent law firm for about two years. On November 4, 1939, defendant employed plaintiff, who remained in defendant's employ until May 11, 1951, with the exception of a period during which both plaintiff and defendant were in service in the war.

During the period of plaintiff's employment by defendant, defendant sent him twice to Europe, at defendant's expense, for the purpose of visiting defendant's foreign associates and discussing pending cases, and, thereafter, plaintiff was placed in charge of defendant's foreign patent practice, in which capacity he served as defendant's employee until the relationship was terminated on May 11, 1951. On this date, plaintiff resigned his employment, which resignation was accepted by defendant, and on the same day both plaintiff and defendant started communication with the foreign patent correspondents, with some of whom plaintiff had been acquainted before he came to this country and with all of whom he had been dealing as defendant's employee.

Defendant testified that, when plaintiff resigned, he told him he was going to open an office in Dayton to engage in foreign patent practice and solicit defendant's foreign agents, and that defendant advised plaintiff he would not permit him to violate the terms of his employment contract, which provided that, upon the severance of the employment relationship, plaintiff would not engage in patent work in Ohio or Michigan for five years. Subsequently, plaintiff was enjoined from so doing, and he opened an office in Richmond, Indiana. Some of the foreign agents transferred their business from defendant to plaintiff.

Plaintiff bases his right to recover damages against defendant upon a cablegram dated May 11, 1951, and a subsequent letter dated May 17, 1951, sent to 47 patent agents with whom defendant had business relations.

The cablegram reads as follows:

'We have found it desirable terminate employment our employee Walter Becker. In our future relationships please address personally senior member H. A. Toulmin, Jr. We look forward to long and continued business relationships on an expanding basis with you.

'(Signed) H. A. Toulmin, Jr.'

The letter reads as follows:

'Dear Sir:

'We are confirming our cable to you as follows:

'We have found it desirable terminate employment our employee Walter Becker. In our future relationships please address personally senior member H. A. Toulmin, Jr. We look forward to long and continued business relationships on an expanding basis with you.'

'This firm in its 70 years has always required a high standard of professional skill coupled with prompt attention to professional matters. This has accounted for our long professional good fortune.

'It therefore becomes necessary from time to time, as doubtlessly you have found in your organization, to make changes in the interest of greater efficiency and progress.

'We should have an interesting new announcement that we think you will find of great interest in the handling of any of your work in the United States.

'Faithfully yours,

(Signed) H. A. Toulmin, Jr.'

The trial court submitted the case to a jury upon the question whether the language in the cablegram and letter constituted libel per se in that a reasonable reader of the cable and letter could consider that defendant had discharged plaintiff for lack of professional competence, and in that such defamatory meaning reflected adversely upon plaintiff in his profession as a patent agent in implying that he had not properly discharged his duties as an employee of defendant.

Defendant's testimony and claim were to the effect that there are no words in either the cablegram or letter which in any way indicated that he had discharged plaintiff, or that he had in any way reflected upon plaintiff's competency or had defamed him in any manner; that, after confirming the cablegram, the letter was simply a boosting of defendant's own manner of handling business in order to hold his foreign colleagues to himself rather than have them go to plaintiff in future matters; and that the part of the letter which narrates the necessity of making changes in the interests of greater efficiency and progress is simply preliminary to the last paragraph concerning an interesting new announcement. The interesting new announcement referred to defendant's opening of offices in Washington, D. C., for the greater convenience of his foreign correspondents, which offices were opened during the course of the same year in which the severance of the relationship between plaintiff and defendant occurred.

At the conclusion of plaintiff's evidence and at the conclusion of all the evidence, defendant made a motion for a directed verdict, which motions were overruled, and the case was submitted to the jury to determine the question whether the language of the cablegram and letter constituted libel per se.

The jury returned a verdict for $20,000 in favor of plaintiff, and, thereafter, defendant filed a motion for judgment notwithstanding the verdict and a motion for a new trial.

The motion for judgment was overruled, but the court granted the motion for a new trial, upon the ground that the verdict was grossly excessive and was the result of passion and prejudice.

Defendant appealed to the Court of Appeals from the overruling of his motion for judgment notwithstanding the verdict, and the Court of Appeals affirmed the judgment of the trial court.

The cause is before this court upon the allowance of a motion to certify the record.

Pickrel, Schaeffer & Ebeling and William H. Selva, Dayton, for appellant.

Landis, Ferguson, Bieser & Greer and Charles S. Bridge, Dayton, for appellee.

STEWART, Judge.

There are two questions presented to us for decision:

1. Did the trial court err in submitting to the jury the question whether the cablegram and letter sent by defendant to his 47 business contacts abroad constituted libel per se?

2. If so, were the communications privileged?

In the case of Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118, 95 N.E. 735, Ann.Cas.1912B, 978, it is stated, as follows, in the second paragraph of the syllabus:

'To constitute a publication respecting a person 'libelous per se,' it must appear that the publication reflects upon the character of such person by bringing him into ridicule, hatred, or contempt, or affects him injuriously in his trade or profession.'

If language in a publication has of itself the foregoing effect, then that language constitutes libel per se, and the one so libeled may maintain an action for libel and recover damages, without pleading or proving special damages. In such a libel, malice is presumed and damages may be allowed for the effect of the libel upon the person libeled. However, in order to constitute libel per se, it must appear that the words in the publication of themselves injuriously affect the person concerning whom they are said. If they can reasonably have another and innocent meaning and are not libelous of themselves, they can not constitute libel per se.

Whether words of a publication...