Foster-Milburn Co. v. Chinn

CourtCourt of Appeals of Kentucky
Citation120 S.W. 364,134 Ky. 424
Decision Date19 June 1909

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 &amp 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: "Senator Chinn, famous Kentucky horseman, gives testimony. Was cured by Doan's Kidney Pills when miserable with pain in the back. Senator Jack Chinn is a prominent figure in the Blue Grass country of Kentucky, famous for its beautiful women and for its fine blooded horses. Col. Chinn, who is very popular and well known, was walking with Gov. Goebel when the latter was fatally shot. For many years he has been a large breeder of thoroughbred stock. Col. Chinn says he is glad to acknowledge the benefit he has derived from using Doan's Kidney Pills. His letter follows: 'Foster-Milburn Co., Buffalo, New York. Gentlemen:--I join in endorsing Doan's Kidney Pills which were recommended to me a few months ago when I was feeling miserable. Had severe pains in the back, was restless and languid. A few boxes of pills effectually routed the ailment and I am glad to acknowledge the benefit I have derived. Yours truly [facsimile reduced] J. P. Chinn."' 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: "Q. Are you acquainted with the general reputation among the medical profession, and intelligent people generally, of people who sign their names to medical testimonials in these medical almanacs--in what regard they are held? A. The medical profession pays no regard to anything of that kind that they may see. Q. Are you acquainted with that reputation from having heard it discussed among the medical profession--in which people who sign these testimonials are held? A. I suppose they get any kind they want. A reputable physician does not regard a testimonial of that kind as worth anything. Q. In what repute are people who do that sort of thing held? A. In bad repute." Dr. M. L. Forsythe was also allowed to testify thus, "From your acquaintance with the medical profession generally are you acquainted with the repute in which one is held whose name appears in a patent medicine advertisement? A. Yes; I have heard it discussed, and have read of it a good deal. Q. In what repute are such men held by the profession--speaking as a scientific man--as doctor? A. In bad repute." 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: "It was only the opinion of the witnesses about a matter that the jury were capable of judging and which it was their duty to determine. If the rating meant that the plaintiff had no credit and no capital, and such rating was false, it was libelous, and actionable per se, and the jury should have been left to estimate its effect without the influence of the opinions of witnesses, however competent to judge of such matters. Townsend on Slander and Libel, 297. If the plaintiff suffered special damage by loss of credit, the injury and the cause of it were susceptible of proof, direct proof by the persons with whom his credit suffered. If there was a general loss of credit or breaking down of commercial character and it was not susceptible of proof, it was a matter of opinion for the jury only, unaided by the opinions of outsiders." 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: "The rules of pleading are founded upon reason and fairness. The issue in...

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  • Brinkley v. Casablancas
    • United States
    • New York Supreme Court Appellate Division
    • May 14, 1981
    ...had a property right in her name which could not be appropriated by another in his business. (See, also, Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55; Gordon, Right of Property in Name, Likeness, Personality and History, 55 ......
  • Shields v. Booles
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    ...1162; Boyd v. Hutton, 196 Ky. 512, 244 S.W. 880; Thompson v. Adelberg, 181 Ky. 487, 205 S.W. 558, 3 A.L.R. 1594; Foster-Milburn v. Chinn, 134 Ky. 424, 120 S.W. 364, 34 L.R.A. (N. S.) 1137, 135 Am.St.Rep. 417. In order to be libelous per se, it is not essential that the words involve an impu......
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    ...68, 69 L.R.A. 101 (unauthorized use of plaintiff's picture and testimonial in insurance advertisement); Foster-Milburn Co. v. Chinn, 1909, 134 Ky. 424, 120 S.W. 364, 34 L.R.A.,N.S., 1137, (unauthorized testimonial for patent medicine); Barber v. Time, Inc., 1942, 348 Mo. 1199, 159 S.W.2d 29......
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