Fry v. McCord

• Decision Date: 21 December 1895
• Citation: 33 S.W. 568,95 Tenn. 678
• Parties: FRY v. McCORD et al.
• Court: Tennessee Supreme Court

33 S.W. 568

95 Tenn. 678

FRY v. McCORD et al.

Supreme Court of Tennessee.

December 21, 1895

Appeal from circuit court, Giles county; D. W. Broyles, Special Judge.

Action by J. P. Fry against McCord Bros. & Co. for libel. From a judgment for plaintiff, defendants appeal. Reversed.

W. H McCallum, Z. W. Ewing, Flournoy Rivers, and H. R. Steele, for appellants.

Fussell & Wilkes, W. J. Webster, R. P. Ables, and M. & E. E. Eslick for appellee.

WILKES J.

This is an action for libel. It was tried in the court below before the judge and a jury, and a verdict and judgment were rendered for the plaintiff for $400 and costs, and defendants have appealed and assigned errors.

In support of the action, it is alleged that four letters were sent to plaintiff through the mails, in unsealed envelopes by the Merchants' Retail Commercial Agency of Atlanta, Ga., and Chicago, Ill., Atlanta being a branch office. After the last letter was sent to the plaintiff, it is alleged that, in pursuance of a threat contained in it, plaintiff's name was caused to be published in a certain book or pamphlet. Upon the title page of this pamphlet appear printed these words: "The Merchants' Retail Commercial Agency, Chicago, Illinois. Incorporated under the Laws of Illinois. Abstract of Unsettled Accounts in and for the Counties Indicated on the Following Pages." The following memorandum appears in the body of the pamphlet: "Fry, J. P. Far, Lynnville, $69.75. Giles county, Tennessee. Claims marked () are outlawed." There also appears in the pamphlet the following: "Special Notice. This information is furnished in strict confidence, for your exclusive use and benefit, under and subject to the terms and conditions of your subscription to this agency. All abstracts remain the exclusive property of this agency, and are only loaned to you during the period covered by your membership, at the expiration of which they must be surrendered. If any of the within claims have been settled, please advise the agency promptly relative thereto, and the secretary of your local board." It is averred: That this publication is libelous per se. That it was intended to be circulated among the members of the association throughout the county of Giles, where plaintiff lives, and elsewhere, and that its meaning was that plaintiff was indebted by account in the sum of $69.75, and was evading payment of the same; that he was lacking in integrity, and unworthy of credit; that he was a "dead beat," a swindler, a common cheat, and a man who made debts not intending to pay them. And that it was so understood among the members of the association. By an amended declaration contained in a fifth count, the publication is set out in detail, and it is averred that defendants entered with others into a conspiracy to publish, and did publish, plaintiff as a swindler, dead beat, etc., for the purpose of collecting from him the debt of $69.75. Defendants objected to this amendment adding the fifth count to the declaration. The declaration, as thus amended, was demurred to, and the demurrer overruled, when defendants pleaded not guilty, and also a special plea of justification; admitting the publication of the words in the pamphlet, but denying the defamatory meaning sought to be attached to them, and denying all responsibility or authority for the etters. While the letters are alleged to have been sent by mail, in open envelopes, to plaintiff, it is not averred that they were ever read by any one but plaintiff. It is insisted that the publication must be read in connection with the letters, and that they form parts of the same scheme, and, taken together, are libelous and actionable. On the other hand, it is insisted that the pamphlet is the only publication, and that the letters were never published, but can only be used to interpret the meaning of the pamphlet, if authorized at all.

We do not think there was any error in allowing the fifth count in the declaration to be filed. It was in ample time before the trial not to operate as a surprise, or to prejudice the defendants, and the matter of it is germane to the matter of the original declaration, and only adds the purpose and object of the defamatory publication in a different and more specific manner.

There can be no doubt but that, taking the pamphlet and letters together, as parts of one publication, if both were published and so averred, and giving to the words the meaning alleged in the declaration, the matter would be libelous and actionable per se. It is contended, however, that the letters were never published or authorized, and that the matter in the pamphlet is not libelous per se, and that no special damages are alleged in the declaration, and none shown in the proof. It is therefore insisted that the demurrer should have been sustained, and the suit dismissed, because the matter in the pamphlet is not libelous per se, nor is it alleged that the letters were published, nor that any special damages resulted. The contention is that the words in the pamphlet simply meant what they said, and no more,-that is, that plaintiff owed an account of $69.75,-and that such words alone were not defamatory or prejudicial to plaintiff, nor calculated or intended to provoke him to wrath, but only to give information to members of the association, to enable them to extend or withhold credit as they might see fit, and thus protect them in their business in a legitimate way. The gist of the matter presented by the demurrer is that the publication was of the pamphlet alone, and not also of the letters; that the pamphlet was not libelous per se, and, no special damage being alleged, the action could not be maintained.

The first important question that arises is, are the words, as published, libelous per se? This is a question for the court to determine, and is properly raised by demurrer, when the language is unambiguous in itself. Bank v. Bowdre, 92 Tenn. 740, 23 S.W. 131; Banner Pub. Co. v. State, 16 Lea, 176. It has been held that, in order to constitute language libelous per se, it must be "either such as necessarily, in fact, or by presumption of evidence, occasions damage to him of whom or whose affairs it is spoken." Townsh. Sland. & L. (4th Ed.) § 146; Newell, Defam. p. 181, § 14. "Such language confers a prima facie right of action, and is prima facie a wrong, and injurious per se; and the law will presume damage, without proof, merely from implication or presumption from the publication." Townsh. Sland. & L. (4th Ed.) § 147. "Language which, however, does not, as a necessary consequence, occasion damage to the party published, is not per se libelous, and in such cases a right of action exists only when, as a necessary and proximate consequence of the publication, special damage ensued to the party published." Id. §§ 146-148; Bank v. Bowdre, 92 Tenn. 736, 23 S.W. 131. We think a statement in substance and effect the same, but in different language, is that words which upon their face, and without the aid of extrinsic proof, are injurious, are libelous per se; but if the injurious character of the words appear, not from their face, in their usual and natural signification, but only in consequence of extrinsic circumstances, they are not libelous per se. In such cases the words are said to require an innuendo; that is, a statement of circumstances which give to the words a signification and meaning which they do not have on their face, but which cannot enlarge, extend, or change the sense of the words. Newell, Defam. p. 619, §§ 34, 35. If the words published are libelous per se, damages follow, as a matter of law, in some amount, and the jury must fix that amount, in view of all the surrounding circumstances. If not libelous per se, then they are not actionable, in the absence of an allegation of special damages, and the suit must be dismissed. Looking alone to the words contained in the pamphlet, we are of opinion that, taken in their ordinary and usual and natural sense and meaning, they are not libelous or injurious on their face, or per se. We are also unable to see anything libelous in the special-notice clause of the publication in the pamphlet, or in the instructions, unaided by extrinsic proof. The striking out of the name of a party who had paid his debt could not be injurious. It has been repeatedly held that information as to the standing of merchants, business men, and other individuals, can properly be furnished by a mercantile agency, for information to its clients or customers, and it is not actionable, unless false, defamatory, or injurious in itself. See the authorities collated in 13 Am. & Eng. Enc. Law, 414, note 1. It has likewise been held that a publication that a party "owes a debt," without more, is not of itself sufficient to make the publication libelous (especially when such person is not engaged in business), but such words may be made libelous by proof of extraneous circumstances, if special damages are shown. They do not, however, without such extrinsic proof, imply dishonestly, and are susceptible of an innocent as well as a defamatory interpretation. Zier v. Hofflin (Minn.) 21 N.W. 862. Odger, Sland. & L. 81. See, also, Newell, Defam. p. 195, § 37. This holding is not in conflict, but in accord, with the case of Bank v. Bowdre, 92 Tenn. 723, 23 S.W. 131, where the injurious and libelous character of the publication clearly appeared from the words on the postal card, and were published of merchants in active business. Nor is it in conflict with the other cases cited by plaintiff's counsel as illustrations of language actionable and libelous per se.

The next important question then arising is whether there is any allegation of special damage made in the declaration. It is not alleged that plaintiff was a...