Elizabeth Peck v. Tribune Company

• Decision Date: 17 May 1909
• Docket Number: No. 191,191
• Citation: Elizabeth Peck v. Tribune Company, 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960, 16 Ann. Cas. 1075 (1909)
• Parties: ELIZABETH PECK, Petitioner, v. TRIBUNE COMPANY
• Court: U.S. Supreme Court

214 U.S. 185

29 S.Ct. 554

53 L.Ed. 960

ELIZABETH PECK, Petitioner,

v TRIBUNE COMPANY.

No. 191.

Argued April 29, 30, 1909.

Decided May 17, 1909.

Messrs. S. C. Irving, Rufus S. Simmons, and Frank J. R. Mitchell for petitioner.

[Argument of Counsel from pages 185-187 intentionally omitted] Messrs. John Barton Payne, William G. Beale, and Frank R. Cain for respondent.

[Argument of Counsel from pages 187-188 intentionally omitted] Mr. Justice Holmes delivered the opinion of the court:

This is an action on the case for a libel. The libel alleged is found in an advertisement printed in the defendant's newspaper, The Chicago Sunday Tribune, and, so far as is material, is as follows: 'Nurse and Patients Praise Duffy's. Mrs. A. Schuman, One of Chicago's Most Capable and Experienced Nurses, Pays an Eloquent Tribute to the Great Invigorating, Life-Giving, and Curative Properties of Duffy's Pure Malt Whisky.' Then followed a portrait of the plaintiff, with the words, 'Mrs. A. Schuman,' under it. Then, in quotation marks, 'After years of constant use of your Pure Malt Whisky, both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it as the very best tonic and stimulant for all local and run-down conditions,' etc., etc., with the words, 'Mrs. A. Schuman, 1576 Mozart st., Chicago, Ill.,' at the end, not in quotation marks, but conveying the notion of a signature, or at least that the words were hers. The declaration alleged that the plaintiff was not Mrs. Schuman, was not a nurse, and was a total abstainer from whisky and all spirituous liquors. There was also a count for publishing the plaintiff's likeness without leave. The defendant pleaded not guilty. At the trial, subject to exceptions, the judge excluded the plaintiff's testimony in support of her allegations just stated, and directed a verdict for the defendant. His action was sustained by the circuit court of appeals, 83 C. C. A. 202, 154 Fed. 330.

Of course, the insertion of the plaintiff's picture in the place and with the concomitants that we have described imported that she was the nurse and made the statements set forth, as rightly was decided in Wandt v. Hearst's Chicago American, 129 Wis. 419, 421, 6 L.R.A.(N.S.) 919, 116 Am. St. Rep. 959, 109 N. W. 70, 9 A. & E. Ann, Cas. 864; Morrison v. Smith, 177 N. Y. 366, 69 N. E. 725. Therefore the publication was of and concerning the plaintiff, notwithstanding the presence of another fact, the name of the real signer of the certificate, if that was Mrs. Schuman, that was inconsistent, when all the facts were known, with the plaintiff's having signed or adopted it. Many might recognize the plaintiff's face without knowing her name, and those who did know it might be led to infer that she had sanctioned the publication under an alias. There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff's portrait, or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libelous, the defendant took the risk. As was said of such matters by Lord Mansfield, 'Whenever a man publishes, he publishes at his peril.' R. v. Woodfall, Lofft, 776, 781. See further, Hearne v. Stowell, 12 Ad. & El. 719, 726; Shepheard v. Whitaker, L. R. 10 C. P. 502; Clarke v. North American Co. 203 Pa. 346, 351, 352, 53 Atl. 237. The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of someone else. See Morasse v. Brochu, 151 Mass. 567, 575, 8 L.R.A. 524, 21 Am. St. Rep. 474, 25 N. E. 74.

The question, then, is...