Foster-Milburn Co. v. Chinn
Decision Date | 19 June 1909 |
Citation | 120 S.W. 364,134 Ky. 424 |
Parties | FOSTER-MILBURN CO. v. CHINN. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Mercer County.
"To be officially reported."
Action by J. P. Chinn against the Foster-Milburn Company for libel. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
O'Rear J., dissenting.
Marshall Rebadow & Thomas, J. F. Vanarsdall, W. B. Smith, and Smith & Smith, for appellant.
J Morgan Chinn, E. H. Gaither, and L. M. Smith, for appellee.
The Foster-Milburn Company is a corporation with its principal office at Buffalo, N.Y. Among other things it manufactures Doan's Kidney Pills, and publishes, to advertise the pills, "Doan's Directory." In this directory it printed a picture of J. P. Chinn, and, under the picture, were these words: ' J. P. Chinn brought this suit against the Foster-Milburn Company charging that he had not written or signed the letter, that the publication was without his authority, and charging that it had brought him into ridicule and greatly mortified him, and otherwise damaged him in the sum of $25,000. The defendant filed an answer traversing the allegations of the petition after a motion to quash the process had been overruled. A trial was had before a jury, which resulted in a verdict for the plaintiff for $2,500. The court entered judgment on the verdict, and the defendant appeals.
Dr. A. N. McCormick was allowed to testify on the trial as a witness for the plaintiff that he was a member of the American Medical Association; that an officer of that association had made an analysis of Doan's Kidney Pills; that he had seen a report of the analysis, and that the report showed that the pills were composed of certain ingredients; that a pill thus composed was harmless, but of no value, and that Doan's Kidney Pills were a fraud. The witness had not analyzed the pills. He knew nothing of what they contained, except what he had read from the report of the officer who had made the examination. This evidence was incompetent. A witness who has made a chemical analysis himself may testify as to the analysis which he has made, but all that Dr. McCormick knew was purely hearsay as to the nature of the pills, and his testimony that they were a fraud and valueless should not have been admitted because it was based upon the knowledge he had received of the contents of the pills from the report of their analysis. This evidence was very prejudicial to the defendant, as it stamped the pills as a fraud. The contents of the pills can only be proven by some person who knows the facts. Over the defendant's objection, Dr. A. D. Price was allowed to testify as follows: Dr. M. L. Forsythe was also allowed to testify thus, Dr. C. P. Price and Dr. A. T. McCormick were allowed to give similar testimony.
In Bradstreet Co. v. Gill, 72 Tex. 115, 9 S.W. 753, 2 L. R. A. 405, 113 Am. St. Rep. 768, Gill sued the Bradstreet Company for a report published concerning him by it as a commercial agency in which he was reported "in blank." The court held that what the words "in blank" meant according to the key furnished by the defendant to its subscribers might be shown, but that it was improper to show what effect such a report would have upon plaintiff's standing in commercial circles. The court said: In McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 47 N.
W. 671 22 Am. St. Rep. 673, similar evidence was held incompetent. The court said: ...
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