Hermann v. The Bradstreet Co.

• Decision Date: 09 November 1885
• Parties: JOSEPH HERMANN, Respondent, v. THE BRADSTREET COMPANY, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 227

JOSEPH HERMANN, Respondent, v. THE BRADSTREET COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Reversed and remanded.

The facts are stated in the opinion.

JAMES W. BOYD, for the appellant.

I. The petition states no cause of action. The matter alleged is not libelous. Townshend on Libel (3 Ed.) sect. 176; 2 Greenl. on Evidence (14 Ed.) 409, note a.

II. The court erred in admitting illegal evidence on part of plaintiff, as to conversations with third persons and the contents of letters from a third person. All this was simply hearsay. The fact, and not the conversation with plaintiff, is the matter to be proved. Townshend on Slander and Libel (3 Ed.) 321, note 4.

III. The court erred in permitting plaintiff to show special damages. The petition does not allege special damages, nor does it state any facts, whatever, as to special damages. Such damages are required to be stated in the declaration for notice to defendant, and to prevent surprise at the trial. 1 Sutherland on Damages, 763; Townshend on Slander and Libel (3 Ed.) sect. 345.

IV. The instructions given for plaintiff are erroneous, assuming admission by the pleadings, which do not so appear, and as to the measure of damages. If defendant was actuated by no malicious motives, and his act was not attended by circumstances of oppression or insult, compensatory damages only are recoverable. Joice v. Branson, 80 Mo. 28; Cooley on Torts, 209, 692; Detroit Post Co. v McArthur, 16 Mich. 447.

V. The petition does not allege that plaintiff was a brick-maker, or that he was engaged in any business at all. Hence no evidence tending to show a loss in his business was admissible, under the pleadings, in this case.

RAMEY & BROWN, and VINTON PIKE, for the respondent.

I. Defendant could not be in court for one purpose and out of it for another. Certain individuals were permitted to file an answer, saying they were using the corporate name of defendant as their partnership name. Their exceptions cannot be taken advantage of here by defendant. Tower v Moore, 52 Mo. 120; Brown v. McMullen 78 Mo. 276.

II. The petition stated a cause of action and the evidence objected to was properly admitted. All the alleged defects in the petition are aided by the answer. Ingram v. Lawson, 6 Bing. (N. C.) 212; Brooks v. Harrison, 90 N.Y. 90.

III. There was evidence of a grossly negligent publication. The publishers also neglected for an unreasonable time to make the correction, and imposed a condition upon which it would be made. In such case exemplary damages are allowed. Buckley v. Knapp, 48 Mo. 162; Pennington v. Meeks, 46 Mo. 220.

IV. Defendant's instructions were properly refused, not presenting the full issues. Johnson v. R. R., 77 Mo. 553; Ingram v. Lawson, supra.

ELLISON J.

This is an action of libel, the petition being as follows:

" Plaintiff complains of defendant and for cause of action says: Defendant is a corporation organized and incorporated under the laws of the state of New York, and is the owner and publisher of a newspaper called Bradstreet's, a journal of trade, finance, and public economy, which newspaper said defendant printed in the city of New York, in the state of New York, and caused to be circulated and published in the city of St. Joseph, in this county, where plaintiff resides and carries on his trade and business, and also in the region of country surrounding St. Joseph, whose trade and commerce is tributary to said city of St. Joseph. That on the fifth day of August, A. D., 1882, there was published in said newspaper of and concerning plaintiff, the following false, defamatory and malicious libel, to-wit:

" ST. JOSEPH.--Joseph Hermann, brick-maker, is in the hands of the sheriff," whereby the plaintiff has been damaged in the sum of ten thousand dollars, for which he asks judgment."

The trial resulted in a verdict for plaintiff for six hundred dollars, and defendant appeals.

Defendant asks for a reversal for the reason, among others: 1. That the words charged are not libelous per se. 2. That plaintiff was permitted to testify against defendant's objection as to what business he was engaged. 3. As to trouble he had with his partner, concerning the loss of the sale of three or four hundred thousand brick " to a man in Leavenworth." 4. Concerning the loss of one sale in Iowa.

Though not arriving at the conclusion without some hesitation, we are of opinion the words printed are libelous per se. The presumption that words are defamatory arises much more easily in cases of libel than in cases of slander. Many words which, if printed and published, would be presumed to have injured the plaintiff's reputation, will not be actionable per se, if merely spoken. The following are reasons given by Odgers on Libel and Slander, p. 3, for the distinction: " Vox emissa volat; litera scripta manet. The written or printed matter is permanent, and no one can tell into whose hands it may come. Every one can now read. The circulation of a newspaper is enormous, especially if it be known to contain libelous matter. And even a private letter may turn up in after years, and reach persons for whom it was never intended, and so do incalculable mischief. Whereas, a slander only reaches the immediate bystanders, who can observe the manner and note the tone of the speaker, who have heard the antecedent conversation, which may greatly qualify the assertion, who probably are acquainted with the speaker, and know what value is to be attached to any charge made by him; the mischief is thus much less in extent, and the publicity less durable. A slander may be uttered in the heat of a moment, and under a sudden provocation; the reduction into writing and the publication of a libel show greater deliberation and malice."

A definition of libel, as quoted by Judge Napton, in Nelson v. Musgrave (10 Mo. 648), is: " A malicious publication expressed either in printing or writing, or by signs or pictures, tending to either blacken the memory of the dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule." This definition has been cited with approval in Price v Whiteley (50 Mo. 439), and Legg v. Dunleavy (80 Mo. 563). Judge Napton also defined it to be any malicious printed slander, which tends to expose a man to ridicule, contempt, hatred, or degradation, is libel. " A libel is a censorious, or ridiculous writing, picture, or sign, made with a mischievous and malicious intent toward government, magistrate or individual." Price v. Whiteley, supra, quoting from Alexander Hamilton. Judge Ryland, in Keemle et al. v. Sass, quotes with approval: " Any printed publication that tends to bring a man into disrepute, ridicule, or contempt, is a libel in a legal sense." There are many other definitions equally as well put, but amounting substantially to the same. I think the words charged here come within these definitions. The words charged are: " Joseph...