Daily v. New York Herald Co.

• Decision Date: 02 March 1907
• Citation: 151 F. 114
• Parties: DAILY v. NEW YORK HERALD CO.
• Court: U.S. District Court — Southern District of New York

151 F. 114

DAILY v. NEW YORK HERALD CO.

United States Circuit Court, S.D. New York.

March 2, 1907

Edward G. Peters, for plaintiff.

Jay &amp Candler, for defendant.

RAY District Judge.

There is nothing libelous on the face of the published article unless it be in the following language:

'It was stated yesterday that after leaving San Francisco Mr Daily went to New York and organized a smelter company, his associates understanding that the Bulls Point smelter was his property. They sent a man here, who quickly discovered that Daily had no title to the smelting works. The New York men, it is asserted, demanded the return of their money and threatened prosecution, whereupon Mr. Daily brought the local suit as evidence of his good faith.'

The crucial question is, does this charge that the plaintiff Daily (there is no dispute it refers to him), in organizing the smelter company, put the Bulls Point property into the company on the representation it was his property, and so either obtained money from his associates or induced them to put money into the company, or that, merely representing the property to be his when it was not, he thereby induced his associates to part with their money, either to him or to the company, as such, so that it became the money of such company? Does it necessarily charge Daily with crime, or with bad or dishonest conduct such as would bring him into disgrace and contempt among his fellows? There is no direct statement that Daily made any representation as to the ownership of the property, or that he obtained any representation as one, or that he induced any one to part with any money. It does charge that Daily organized a smelter company and that his associates in the formation of that company understood from some source, or some person, possibly, that Daily owned the Bulls Point smelter property. It then says, in substance, that on investigation these associates in the company formed in New York found that Daily did not own the Bulls Point property, which they understood from some source Daily owned; that thereupon they demanded a return of their money from some one, not necessarily Daily, and threatened some one, not necessarily Daily, with prosecution, 'whereupon Mr. Daily brought the local suit as evidence of his good faith. ' This plainly means 'evidence of his good faith' in something he had done or in taking some action he had taken, and, in connection with what goes before, must be understood to mean good faith in representing to his associates or some one in some way that the Bulls Point property was his. While they may not have paid money to or for him, the charge is, plainly, they had paid money or parted with money because of knowledge of these representations and had threatened some one with prosecution; not necessarily, I think, the one who had made the representations. Hence the charge necessarily is, and would be so read and understood, that Daily had represented to some one, and that this representation had been communicated to his associates in the company, that he owned the property, when he did not have title, and thereby such associates had been induced to part with their money, and on learning the truth had threatened some one with prosecution, whereupon he (Daily), as evidence of his good faith-- that is, honesty-- in making the representations, had brought suit, as described in a previous part of the article, to recover the property.

Is there the plain intendment, or, at least, insinuation, that such action was brought as evidence of good faith, honesty, and integrity in making the representations to avoid prosecution, and not because of or relying on the justice of the claim, or in the belief he was in fact the owner of the Bulls Point property? There is no charge that Daily intended to deceive, or defraud, or mislead, or that he made the representations for the purpose, or with the intent, of inducing his associates, or any one, to part with money or property. It is merely a charge (1) that he did procure the formation of a company; (2) that he did represent to some one that he owned the property mentioned; (3) that such statements came to the knowledge of his associates; (4) that they then parted with their money to some one; (5) that, on learning Daily had no title, they threatened prosecution; and (6) that thereupon and because thereof Daily brought suit to show or demonstrate his honesty or good faith. As there is no statement that Daily falsely or knowingly, or with bad intent, made the representations, it may be there is no charge of bad or dishonest conduct in what has been quoted; but the article did not stop there. It proceeds:

'In this suit Mr. Daily charged that the property stood in his name, and that the documentary proofs of the claim had been stolen from the office of Frank Deering, who was his attorney, during his management of the Copper King Mine. Mr. Deering denies this, and asserts that he has in his possession a will executed by Mr. Daily just before he left the Copper King Company's employ, in which Mr. Daily sets forth that he holds no interest whatever in the corporation.'

This presents, in connection with the prior statement, the claim of Mr. Daily to the smelter property and the basis of his suit for its recovery. It presents a contention made by Mr. Daily that he had title, and a contention of his former attorney, Mr. Deering, that he had declared in a written instrument, not that he had no interest in the Bulls Point smelter, but no interest in the corporation, and states that Deering denies the documentary proofs of Daily's title to the property had been stolen from his office. But the article must be taken as a whole in ascertaining what charge is in fact made, and so we go back to some prior statements. The article says, in substance, that the Copper King Mining Company, Limited, had been previously organized, designated in the article as the 'Gardner Concern'; that W. H. Daily appeared as its manager, and that finally a big smelter was erected at Bulls Point, which had proved a failure. This is the corporation and this the smelter hereinbefore referred to as 'the company,' in which Deering claimed Daily had no interest, and the smelter works of which it was claimed or said he had no title. As to Daily's claim and the bringing of the suit the article says, prior to the part first quoted:

'Daily came westward as far as Sacramento, and directed that a suit be brought in the United States court here against the company, the property of which he laid claim to, and out of which he declared he had been defrauded by Frank Gardner's agents through connivance with persons here.'

The publication of the article complained of grew out of the failure of this Copper King Mining Company and the article purports to give a sort of history of certain matters or transactions, both in and out of court, connected with its formation, conduct of business, financial embarrassments, etc., and claims made in regard thereto, and in so doing makes the statement quoted in regard to Mr. Daily the one-time manager of the company.

I think that, as a whole, the article as published is self-explanatory, and fails to charge Mr. Daily with either bad, dishonest, or criminal conduct, or impute same to him. It gives the respective claims, but makes no charges or statements not explained, and in the main it relates to proceedings in court and matters of general interest....