Gold v. S. Pian Time Payment Jewelry Co.

• Decision Date: 02 April 1912
• Citation: 145 S.W. 1174
• Parties: GOLD v. S. PIAN TIME PAYMENT JEWELRY CO. et al.
• Court: Missouri Court of Appeals

145 S.W. 1174

GOLD v. S. PIAN TIME PAYMENT JEWELRY CO. et al.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

Rehearing Denied April 16, 1912.

1. TRIAL (§ 79)—OBJECTIONS—NECESSITY OF REPETITION.

When a party has once objected to the admission of a certain line of testimony, and saved his exception to an adverse ruling, he is not required to make further objections to the same character of testimony.

2. LIBEL AND SLANDER (§ 108) — SPECIAL DAMAGES—EVIDENCE.

While an action for the publication of a false and malicious libel may be maintained without proof of special damages, the plaintiff may prove any loss or injury sustained by him, to support the legal presumption of injury and to show its extent.

3. APPEAL AND ERROR (§ 1053)—HARMLESS ERROR—EVIDENCE—CURE.

In an action for libel, a charge that the jury cannot assess damages by reason of any loss or damage to plaintiff's business cures the erroneous admission of evidence as to such damages.

4. APPEAL AND ERROR (§ 926) — PRESUMPTIONS—EXCLUSION OF EVIDENCE.

The exclusion of a leading question, asked a witness in an action for libel, as to whom he understood the alleged libelous article to refer to, will be presumed, on appeal, to have been on the ground that it was leading, and hence improper, where the ground of objection does not appear, and the court had permitted similar questions to be answered when not leading.

5. LIBEL AND SLANDER (§ 112)—IDENTITY OF PARTY MEANT—EVIDENCE.

In an action for the publication of a libelous article, which does not mention plaintiff by name, the testimony of witnesses as to their understanding of whom it was intended to mean, although admissible, is not controlling on the jury.

6. LIBEL AND SLANDER (§ 124) — INSTRUCTIONS—IDENTITY OF PARTY MEANT.

In an action for the publication of a libelous article, published in Yiddish, which did not mention plaintiff by name, an instruction requiring the jury to find that the defendant intended the language used to be understood "by the public generally" as referring to plaintiff was properly refused; it being sufficient if the publication was understood by those acquainted with plaintiff, or with the surrounding circumstances, to be aimed at plaintiff.

7. TRIAL (§ 260)—INSTRUCTIONS—REQUESTS— EFFECT OF OTHER INSTRUCTIONS.

The refusal of an instruction, in an action for the publication of a libelous article not mentioning plaintiff by name, that if the article was intended by defendant to refer to all persons engaged in a particular business, and not to plaintiff in particular, the jury should find for defendant, although the article would have been libelous if applied to a particular individual, was not reversible error, although the instruction was substantially correct, where other instructions clearly required the jury to find that the publication referred to plaintiff.

8. TRIAL (§ 296) — INSTRUCTIONS — ASSUMPTION OF FACTS.

An instruction, in an action for libel, that punitive damages are awarded to punish defendants for the wrongful act, but are not allowed unless, in committing the thing complained of, defendants were actuated by feelings of ill will or hatred, or a reckless disregard of the consequences of their act, and a further instruction that if the alleged libelous article was false, and imputed to the plaintiff things which would prejudice him and be injurious to him, and was published as described in the evidence, the verdict should be against defendants, are not open to the objection that they assume as a fact that the act complained of was the act of defendants and was wrongful, when considered in connection with another instruction, that if the article complained of was published of and concerning plaintiff, and was not true,

and was a libel on plaintiff, the law presumes it was published maliciously.

9. TRIAL (§ 296) — INSTRUCTIONS — PROVINCE OF COURT AND JURY.

Instructions that if the alleged libelous articles were published at the instance of the individual defendant, and if at the time of the publication he was an officer of the defendant company, and participated in the publication of the articles, and in causing them to be published, he was responsible if they were libelous, and that if the articles were intended by defendants to refer to plaintiff, and were so understood by the persons who read them, they were libelous in character, if false and untrue, did not conflict with another instruction that the jury were the sole judges of whether the articles were libelous, and taken in connection with another instruction defining libel, and stating that if the articles were published of and concerning plaintiff, and were not true, and were a libel on plaintiff, the law presumed their malicious publication, properly submitted the question of whether the articles were libelous to the jury.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Samuel Gold against the S. Pian Time Payment Jewelry Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Thos. B. Harvey, C. Lew Gallant, and William Baer, for appellants. Stern & Haberman, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff, respondent here, against the S. Pian Time Payment Jewelry Company, a corporation, and S. Pian, its president, for libelous publications, charged to have been levelled at plaintiff. The matter complained of was published in a daily newspaper in the city of St. Louis and is in "Yiddish," it being charged that plaintiff and the defendant company are carrying on business as dealers in jewelry on the time payment plan, their places of business within a short distance of each other, and that both seek their custom in the same neighborhood and among the same class of people, namely, people who speak, understand and read Yiddish. There are six counts in the petition, based on six publications of the newspaper, each count claiming $2,000 actual and $3,000 punitive damages. The articles published and as translated into English contain no reference by name to plaintiff or to anyone else and appear to have been in the style of blank verse. They are advertisements of the appellant corporation and warn people against others engaged in the business, and particularly refer to a dealer designated as "a notorious —crippled—dealer;" "that crippled second-hander;" "the crippled swindler;" that the advertiser proposes to tell the public where to buy "the best goods and best articles cheaper than before, to the chagrin (literally `busting') of our crazy, rotten, bitter competitor, who goes about telling things about us that never happened;" that "it is no wonder that the lame one goes about barking; he is unable any longer to skin every one;" "do not listen to the foolish liar, the lame peddler;" "do not buy old rusted goods from the straw-dealer;" "the lame, crippled informer goes about telling you all kinds of talk, do not listen to him for it is all as false as he is himself;" "but whose fault is it, if no one cares to buy from an informer;" "and therefore all the customers run from him and into our store they all run to buy; that makes him more crazy and he makes use of his European tricks;" "the years have gone for the lame cripple, he gets no longer money for nothing;" "and about the lame cripple—do you already know what he means;" "from selling things cheap the lame one wants to keep us;" "hence from us you cripple, you know not the difference between yes and no;" "skinning a customer was in fashion once, but not to-day;" "can be seen how the lame one kept his customers tied up;" "how the crippled merchant fooled every one is known now to rich and to poor;" enough has he fooled us and skinned us, in spite of the fact that he is limping, stinking and rotten;" "but no longer can the lame one with his false words fool us;" "what falsehoods there are in the `crooked one's' words, we need no longer write about him, a liar, an informer he must remain forever;" "at this all the crippled dealers will surely open their mouths;" "not for nothing do they cry, beg and threaten, stop selling so cheap and causing us such losses, specially one who is known to all with his tricks." These are samples of the matter in the publications, it being charged that all of these publications were of and concerning plaintiff, in the issues of the newspaper on the various dates set out in the several counts of the petition, and it being averred that the publications were made by defendants falsely and maliciously, and that the language used was false, malicious and libelous and without justification as defendants and each of them well knew, and that by the use of the words "crippled dealer," and other expressions in the publications, defendants meant to publicly point out and did point out plaintiff and did intend to apply to him all the matters and things in the publication stated.

Defendants demurred to the petition as not stating facts sufficient to constitute a cause of action. The demurrer was overruled and defendants thereupon filed their motion to make the petition more definite and certain. This was overruled.

It appears that the petition originally charged that the matter complained of referred to plaintiff "and reflected and was intended to reflect on him individually and in his business." By leave of court these italicized words were stricken out. The motion of defendants to make the petition more definite and certain was overruled. Defendants thereupon demurred to the petition as above amended and moved to strike out certain other portions thereof relating to plaintiff's business. The demurrer was overruled.

The answer was a general denial.

The trial was before the court and a jury, resulting in a verdict for plaintiff and against both defendants on each count of the petition, awarding plaintiff $200 actual and $200 punitive damages on each count, a total of $2,400. Filing a motion for new trial, as also one in arrest of judgment, both...