Dun v. Maier

• Decision Date: 16 June 1897
• Docket Number: 571.
• Citation: 82 F. 169
• Parties: DUN et al. v. MAIER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

82 F. 169

DUN et al. v. MAIER et al.

No. 571.

United States Court of Appeals, Fifth Circuit.

June 16, 1897

This suit was brought by Maier & Berkele, a mercantile firm composed of Herman A. Maier and John Berkele, who are defendants in error, against R. G. Dun & Co., a firm composed of Robert G. Dun, Arthur J. King, and Robert D. Douglass, who are plaintiffs in error, to recover damages for alleged libelous matter published by the latter firm concerning the said John Berkele. The declaration filed by the defendants in error set forth the cause of action in the following language: '(2) Your petitioners were on January 31, 1894 and for a considerable period theretofore had been, and now are, merchants engaged in conducting a wholesale and retail jewelry business in the city of Atlanta and said state, and doing an extensive trade in that line. (3) Your petitioners were then and are now using in the purchase of goods for their business, and raising money for its need, a large mercantile credit, to which they were and are entitled by virtue of their solvency and prompt and honest dealing with their creditors. (4) The defendants were on the day and year aforesaid, and had been continuously for many years before conducting what is commonly known as a 'commercial agency,' the design and actual use of which is to collect and disseminate among merchants, bankers, and others interested in the matter, throughout the United States information respecting the commercial standing and credit of those engaged in any department of trade requiring the use of credit. This information is communicated to those only who contract for the same with said defendants, and is sent out among other means, in the form of written or printed reports, and a publication issued weekly, and entitled, 'The Mercantile Agency Weekly Change Sheet.' The defendants had then a great number of subscribers for their reports and publications in all the markets of this country. (5) On the day and year aforesaid the defendants had a branch office in the city of Atlanta and said state, and were engaged in sending out from said office such reports as are in the preceding paragraph described, and the publication therein mentioned for the purposes therein specified. (6) The defendants on the day and year aforesaid, and in the city aforesaid, issued and circulated among its subscribers a copy of the said publication, wherein they, for the purpose of injuring the commercial credit of your petitioners, and being moved thereto by malice against them, inserted, under the head of 'record Items,' in one column of said publication, the following false statement as to your petitioners, to wit: 'Atlanta: Maier & Berkele: M. Berkele gives R. E. deeds, $4,100. Jewelry;' meaning thereby that said firm was in the jewelry business, and that the Berkele thereof had conveyed to others real estate belonging to him of the value of $4,100, and thus diminished to such an extent the property accessible to creditors of said firm for the payment of debts due them. (7) during the year 1893 your petitioners, with others in like business in said city, had formed and had in operation a voluntary association known as the 'Jewelry Association,' the object of which was the promotion of their interest in the line meeting of said association, the matter under discussion being whether the association should subscribe for the reports of the commercial agencies represented in said city, one of your petitioners, the said Berkele, in some remarks made by him, questioned the expediency of such subscription. On the day thereafter, in said city, one Elmer R. Kirk, the canvasser of defendants therein, having heard of such remarks, said to a member of said association, and while speaking of them and the subject to which they related, that if he ever had an opportunity to do up your petitioners, he would do so, because of such remarks. Your petitioners allege that the false and malicious statement concerning them published as aforesaid was in pursuance of such threat. (8) Your petitioners allege that the false and malicious statement as to them set out in the sixth paragraph above is of such nature as to impair their crediting the commercial world, and therefore they say that they have been injured and damaged as aforesaid.'

The plaintiffs in error demurred to the declaration on several grounds, which are hereinafter fully noted in the opinion of the court. The demurrers were overruled, and thereupon the plaintiffs in error filed their plea, in which they set up their several defenses to the suit. Subsequently the defendants in error filed three amendments of the declaration, as follows:

First amendment: 'And now come the plaintiffs in the above-stated case, and amend the declaration therein, and say that in addition to the general damages suffered by them because of said libel, as already set forth, they sustained special damages in the sum of one thousand dollars, because of the following state of facts: That, at the date of said publication, plaintiffs were conducting business at two stores on Whitehall street, in the city of Atlanta; that they had determined to close one of the stores, and for this purpose to dispose of the goods there at auction; That they had fixed upon February 15, 1894, as the time when such auction should begin, but that because of the apprehension excited in their minds by such publication that such a sale would be understood as evidence of failing conditions, and impair their standing with their creditors and with the commercial world, they delayed such sale for six weeks; and that by reason of such delay they were subject to an expense of one thousand dollars because of the rent of the store which they desired to close, the hire of clerks for the same, and the bills for gaslight and other incidentals connected with the carrying on of said store.'

Second Amendment: 'And now come the plaintiffs, and amend the amendment heretofore made, wherein they claim of defendants special damages, as follows:

'(1) By striking out after the words 'but that,' in the eleventh line of such amendment, the clause, 'because of the apprehension excited in their minds by such publication,' and inserting in place thereof the following: 'because such publication was of a character to excite in the mind of a man of ordinary prudence, and did excite in the minds of plaintiffs, an apprehension,'-- so that the sentence as amended shall read as follows: 'That, at the date of the publication, plaintiffs were conducting business at two stores on Whitehall street, in the city of Atlanta; that they had determined to close one of the stores, and for this purpose to dispose of the goods there at auction; that they had fixed upon February 15, 1894, as the time when such auction should begin, but that because such publication was of a character to excite in the mind of a man of ordinary prudence, and did excite in the minds of plaintiffs, an apprehension that such sale would be understood as evidence of failing condition, and impair their standing with their creditors and with the commercial worlds, they delayed such sale for six weeks; And that, by reason of such delay, they were subjected to an expense of one thousand dollars because of the rend of the store which they desired to close, the hire of clerks for the same, and the bills for gaslight and other incidentals connected with the carrying on of said store.'

'(2) By appending to said amendment the following bill of the items constituting the expense alleged to be one thousand dollars, to wit:

Rent of store proposed to be closed .......	$300 00
Gas and electric light ......................	25 00
Salary of J. C. Mellichamp as bookkeeper ....	85 00
Salary of Walter Ballard as salesman .......	100 00
Salary of J. W. French as salesman ..........	50 00
Salary of Miss May Archer as saleslady ......	35 00
Salary of J. C. Rivers as collector .........	50 00
Salary of Flewellyn Fluker as porter ........	22 00
	-------
	$667 00

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