Dobbin v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 12 June 1911
• Citation: 157 Mo. App. 689,138 S.W. 682
• Parties: DOBBIN v. CHICAGO, R. I. & P. RY. CO. et al.
• Court: Missouri Court of Appeals

138 S.W. 682

157 Mo. A. 689

DOBBIN v. CHICAGO, R. I. & P. RY. CO. et al.

Kansas City Court of Appeals. Missouri.

June 12, 1911.

1. LIBEL AND SLANDER (§§ 1, 9)—NATURE—WORDS TENDING TO INJURY IN BUSINESS— "LIBEL."

A libel is a malicious publication expressed either in printing or writing or by signs or pictures, tending to blacken the memory of the dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule, but words written of a person's trade or business may be libelous when they might not be so if spoken of the individual simply, for every publication, written or printed, which, as a necessary or natural consequence, will occasion pecuniary loss to a business man, is a libel.

2. LIBEL AND SLANDER (§ 45)—PRIVILEGED COMMUNICATIONS — COMMON BUSINESS INTEREST.

While persons having a common business interest have a certain degree of privilege, yet a letter by the commercial agent of a railroad to one who made use of plaintiff's services wherein he denounced the policy of a traffic expert as being a hold-up of the railroad, characterizing his ideas in the language, "cracked ideas," and spoke of him as a dangerous man to the interests of those employing him, such a letter being injurious to the traffic agent, was a libel going beyond the privilege of business correspondence.

3. LIBEL AND SLANDER (§ 19)—NATURE—CONSTRUCTION OF LANGUAGE USED.

Vituperative adjectives and phrases used in a letter should be given the meaning the context of the letter shows was intended to be expressed.

4. LIBEL AND SLANDER (§§ 9, 86)—NATURE—LIBELS PER SE—INNUENDOES.

A publication which imputes to a business man conduct injurious to his character and standing as such is libelous per se; and hence a petition setting up a cause of action on such a libel needs no allegations by way of inducement or innuendo.

5. LIBEL AND SLANDER (§§ 25, 84, 100)—PUBLICATION—PLEADING—PROOF.

To be actionable, a libel must be published; and the publication must be both pleaded and proved.

6. PLEADING (§ 406)—WAIVER OF OBJECTION —PETITION.

A petition setting up a cause of action on a libel, which alleged that defendants had caused said libel to be directed and mailed to a corporation, which letter was received by corporation and read, is a sufficient allegation of publication where the defendants answered to the merits without challenge, and the proof showed that the letter was read by a servant of the corporation having authority to open and read its mail.

7. LIBEL AND SLANDER (§ 124)—NATURE—ELEMENTS—INSTRUCTIONS—"LIBEL."

As the falsity of the publication is essential to render a publication a libel, which may be defined as any publication injurious to the reputation of another, an instruction in an action upon a libel which, in purporting to define a libel, failed to mention the element of falsity, is erroneous (citing 5 Words & Phrases, p. 4116).

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Preston Dobbin against the Chicago, Rock Island & Pacific Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

M. A. Lowe and Sebree, Conrad & Wendorff, for appellants. W. F. Zumbrunn, for respondent.

JOHNSON, J.

Action for libel. The petition alleges that plaintiff is an expert in matters pertaining to railroad traffic, such as freight rates and charges, and was engaged in the business of collecting claims against railroad companies for overcharges, losses of freight, etc.; that his principal patrons were various members of the Kansas City Board of Trade, a large and influential commercial organization, and that the business of adjusting such claims in Kansas City was conducted by defendant railway company through its codefendant, Fred Smith, who was its commercial agent. The petition then alleges: "That on and prior to July 31, 1906, defendants for no cause whatsoever had conceived a bitter ill will and dislike toward plaintiff, and, intending to injure him in his good name and business and occupation as aforesaid, composed and caused to be published of and concerning plaintiff and sent the same to the Grant W. Kenney Grain Company, City, Mo., said company being at the time a customer of plaintiff, the following false, willful, wrongful, and malicious libel executed by the defendants the Chicago, Rock Island & Pacific Railway Company, and signed by Fred Smith as its commercial agent, and caused said libel to be directed and mailed and sent through the United States mail to said Grant W. Kenney Grain Company, which letter was received by said grain company and was read by said Grant W. Kenney Grain Company, and its contents made known to the Kemper Grain Company, the Geo. A. Adams Grain Company, and the Beall Grain Company, customers and patrons of plaintiff, which said libel was in words and figures as follows, to wit: `21903. F. S. July 31, 1906. The Chicago, Rock Island and Pacific Railway. Fred Smith, Commercial Agent, Messrs. Grant W. Kenney Grain Co., City—Gentlemen: Your letter of the 25th inst. while your name is signed to this letter, it sounds very much like Mr. Dobbin's writing. If you have any loss on these shipments, put it in in the regular way, and it will be investigated, but do not put in one claim as an off-set against another. You can insist upon the payment of the entire loss in another way if you feel like it, but this is in line with Mr. Dobbin's hold up policy for the last year. I presume the other way is by suit. We can stand this as long as you can possibly longer. We don't want any of this way of handling claims, and believe it is not necessary. This man has a cracked idea that when he puts in a claim that it must be paid or sue and the sooner the Board of Trade firms get onto his tactics and know what a dangerous man he is to their interests, the sooner they will cut him out. Very Truly, Fred Smith, Commercial Agent.' Plaintiff further avers that the writer of said letter, the said Fred Smith, was at the time acting for and in the name of the defendant the Chicago, Rock Island & Pacific Railway Company as its commercial agent, and in writing said letter was acting for and in behalf of the defendant railway company; that the publication of said letter and its contents and the knowledge thereof, and of the attitude (to) the hostility of defendants towards plaintiff, was also brought to the attention and knowledge of said Kemper, Adams, and Beall Grain Companies, and so influenced and prejudiced them against plaintiff that they also withdrew and withheld their business from plaintiff, to his great loss and damage; that defendants maliciously and wrongfully intended to and did prejudice all said grain companies against plaintiff, and did influence and cause said Kenney Grain Company, and said Kemper, Adams, and Beall Grain Companies, members of said Board of Trade, to withdraw and withhold their business from plaintiff, and did thereby deprive plaintiff of great gains and profits, to his loss and damage; and that defendants in pursuance of said malicious and unlawful purpose to injure plaintiff and subject him to the suspicion and distrust of said several grain companies, and the public generally, as a person inimical to their interests, and to place plaintiff in bad repute with all said grain companies and the public and any members of said Board of Trade who might learn of the contents of said libel, and that defendants did thereby influence, induce and cause said Kenney, Kemper, Adams, and Beall Grain Companies to withdraw and withhold their adjustments, collections, and other business from plaintiff, all to his great loss and damage," etc. The defendants filed separate answers, each in the nature of a general denial. The trial resulted in a verdict and judgment for plaintiff for $500 actual and $1,000 punitive damages. Defendants appealed.

The evidence of plaintiff tends to show that he was "a traffic agent," whose chief business as such was to adjust and collect freight claims for...