Keemle v. Sass

• Decision Date: 31 October 1849
• Citation: 12 Mo. 499
• Parties: KEEMLE & FIELD v. RICHARD F. SASS.
• Court: Missouri Supreme Court

12 Mo. 499

KEEMLE & FIELD

v.RICHARD F. SASS.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

LESLIE & LORD, for Appellant. The words charged to have been published in either count of the declaration are not actionable per se. In every count they are as follows (without innuendo): “R. F. Sass, steamboat agent, this impertinent person withheld from us on Saturday, New Orleans papers of a late date, intrusted to him for this office by the clerk of the Lucy Bertram. We desire our steamboat friends hereafter to retain favors intended for the “““Reveille” in their own hands until called for, as we put no trust in Mr. Sass whatever, as far as we are concerned. Officers of steamboats will confer a favor by sending to us direct for exchanges, as we are under the impression that those to them, through this small individual, have frequently missed their direction.” The only ground of action upon the above words is the pecuniary damages resulting from their publication, which must be specially averred and proved, and proved as averred.

The plaintiff in his declaration, has elected to state that the words were published of and concerning him in his trade and business as steamboat agent; and is not, therefore, at liberty to give the case any other direction. The identical thing that a party says has injured him, and for which he seeks damages by suit, and the manner in which he hath been injured, is conclusive upon him when he seeks redress pecuniarily. But if the foregoing proposition is not true, there is nothing in the words published which makes them actionable in any case or under any classification of the law concerning libels. 1. The words do not charge the commission of any crime. 2. The words do not hold up the party to infamy, scandal or disgrace. 3. The words do not relate to plaintiff in his capacity as steamboat agent, but are only applied thus by innuendo, and this is a misapplication, for it nowhere appears in the declaration or in the evidence, that it was any part of the duty of a steamboat agent to carry newspapers from or to boats.

As far then as in the publication the words steamboat agent are used, they are only descriptio persona. The case stands as if the words charged were spoken of R. F. Sass, without naming him as steamboat agent; and they neither charge the commission of a crime, nor hold him up to scorn, &c., and there being no proof of special damages, or any injury sustained thereby, the judgment of the court below should be reversed.

An innuendo cannot give a different meaning to the words than what they import themselves, its office being only to apply the words, and as the statement in the declaration. That they charged him with being an unfaithful steamboat agent is not supported, because there is neither proof or allegation that the matter complained of by the defendants below had any connection with such agency.

The reasons given for the motion in arrest, on page 30 of the record, embrace the correct doctrine of law, and rest also on facts in the declaration. The defendants below had a right to protect themselves by way of the publication, and they had a right to say they desired their friends to take another course in the matter of exchange papers. There was no other way from the character of the business and the object to be effected than to publish what they did.

The cases cited by the counsel for Sass have no application. They all tend to show that words are libelous which hold a man up to scorn and ridicule, and on this point the law is well settled. But mark, this case goes upon the ground of pecuniary loss in the matter of the trade and business of a steamboat agent, and no special averment of damages, no pointing out what boats dropped him as agent, and no proof that any did, and no proof that he was ever injured at all. Therefore the judgment below should be reversed. It is said in Holt on Libel, 218, “But words not actionable in themselves did not become actionable when spoken of a man in his trade, unless it were shown by averment that they touched him therein.” Ray, 75.

HUDSON, for Appellee.

1. The publication on which this action is founded is libelous per se. In the case of the People v. Croswell, 3 Johns. Ca., 354, a libel is defined to be a “censorious or ridiculing writing, picture, or sign made with a mischievous and malicious intent towards government, magistrates or individuals.” It is enough if the publishers induce an ill-opinion to be held of the person named, or to make him contemptible or ridiculous. Any written slander, though merely tending to render the party subject to disgrace, ridicule or contempt, is actionable, though it do not impute any definite crime. This doctrine has been fully established by repeated adjudications. In the case of J. Fennimore Cooper v. Greely, 1 Denio, 347, the whole law of libel is ably discussed, the authorities reviewed and the principle laid down in Croswell's case recognized and approved. It is contended that the publication in this case comes within the rule above laid down. The defendant in error is charged to be an “impertinent fellow, a small individual as having been unfaithful in his business and unworthy of confidence,” &c

2. The counsel for plaintiffs in error contends that the publication is not concerning the defendant as “steamboat agent,” but merely as a private individual, and therefore is not libelous, there being no charge of crime, &c. This position, it is contended, is not in accordance with law, or the decisions of the courts of this country on that point. 1 Denio, 362. It seems to be well settled, that where a person is named in a publication or writing, and his trade, business or calling be given in connection therewith, the law will intend that the same was of and concerning him in the trade business or calling designated, and the publishers will be estopped from saying that the person slandered was not of the trade, business, &c., mentioned in the libel. 2 Starkie on Ev. 859; Cook on Defamation, 25, 27. Whether the words were published of the defendant in error in the capacity of steamboat agent, or in relation to his business, was a question of fact for the jury. Skinner v. Grant, 12 Vt. R. 456; 2 Sup't to U. S. Digest, 321; 2 Ld. Raym. 1480; Cook on Defamation, 25, 27; 7 Mason & Welsby, 422-3; 1 Denio, 361.

3. Any publication calculated to injure another in his trade, &c., is libelous of itself. In this case there is a charge that the defendant in error is an impertinent fellow. This is certainly calculated to injure him in his business. No man would be likely to employ an impertinent agent, if it could be avoided, to transact business for him, when his success depended alone upon public patronage. The publication also charges that the defendant in error is not a man in whom confidence can safely be reposed, and insidiously insinuates that he had been guilty of a breach of confidence, &c. Nothing could be better calculated to injure him in his calling than an imputation of this character. The very nature of his employment is such as to require strict integrity, promptness and fidelity in the discharge of business intrusted to him. As to what will be considered as amounting to a libel, when spoken of a person in relation to his trade, calling or business; 2 Starkie on Ev. 866; 3 Wilson, 186; 17 Johns. 217; 2 Wheaton's Sel. 531; 7 Cowen, 654.

4. In the case of Johnson v. Robertson and Wife, 8 Porter's Ala. R. 486, the court held that in actions for slanderous words, the measure of damages is the extent of the injury received; but this the plaintiff is not bound to prove. When words are actionable in themselves, the right to damages follows as a consequence from the speaking of the words; because it is the inevitable tendency of slander to injure the person slandered in his trade, business, &c. It would frequently be difficult to prove any pecuniary loss from the slander, and always imposible to establish its full extent.; besides the action is allowed not only to compensate for pecuniary loss, but to afford some redress for wounded feelings or prostrate reputation. Therefore where the words are actionable in themselves the law implies damages. Special damages need not be laid where words are actionable in themselves. The argument in the case above referred to, applies with great force, and is peculiarly apposite to the case now under consideration. It may well be asked, how the defendant in error could have proven the amount of his pecuniary loss; or the injury resulting from the libel in question? It cannot reasonably be supposed that those who may have declined employing the defendant in error, in consequence of the publication, would communicate to him the reasons for not intrusting business to his care. 2 Starkie on Ev. 861; 2 Wheaton's Sel. 431; 4 Pike, 110; Sedgwick on Measure of Damages, 39, 40 41.

5. The court in the case of Cooper v. Greely, 1 Denio, 363, say, any publications which derogate from the character of an individual by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts, by exposing him to disgrace and ridicule, are actionable without proof of special damages, in short that an action lies for any false, malicious and personal imputation, effected by such means, and tending to alter the party's situation in society for the worse. Any words written and published, throwing contumely on a person, or prejudicing him in his employment, are actionable without alleging special damages. 2 Supt. to U. S. Dig. 321.

6. Other libels than the one declared on may be given in evidence at the trial for the purpose of showing malice. 2 Starkie's Ev. 869:

RYLAND, J.

The appellee, Richard F. Sass, brought his action against the appellants, Keemle & Field, in the St. Louis Court of Common Pleas, for a libel published by them against the plaintiff. The plaintiff below had a verdict and judgment for...