Landon v. Watkins
Decision Date | 22 May 1895 |
Citation | 63 N.W. 615,61 Minn. 137 |
Parties | LANDON ET AL. v. WATKINS. |
Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. In determining whether a publication is libelous per se, the headlines of the same cannot be disregarded, for in them is frequently found the “sting” of the publication.
2. Held, that each of the circulars published by defendant, and made the foundation of plaintiff's first and third causes of action, was a libel on its face.
3. It was a question for the jury to determine from the evidence, and under proper instructions by the court, whether the sending out of the notice made the basis of plaintiff's fourth cause of action was a slander on plaintiff's right and title to manufacture and sell “Dr. Ward's Liniment,” a property right.
4. When the injury complained of in an action for a libel is a loss of trade, a general allegation of such loss is sufficient in ordinary cases, and such allegation may be supported by evidence of such general loss.
5. Application of the rule that, when a publication goes beyond the occasion, it exceeds the privilege.
6. Certain rulings on the admission and rejection of testimony occurring on the trial considered and disposed of.
Appeal from district court, Winona county; Start, Judge.
Action for libel by George C. Landon and another against J. R. Watkins. From an order denying a new trial after a verdict for plaintiffs, defendant appeals. Affirmed.
Exhibits A, B, and C, referred to in the opinion, read as follows:
Exhibit A.
“BEWARE OF COUNTERFEITS
and
BASE AND DANGEROUS IMITATIONS
of our well-known
DR. WARD'S VEGETABLE ANODYNE LINIMENT.
“To the Public: Please consider the following sworn statement of Richard Ward, before investing in any doubtful medicine purporting to be ‘Dr. Ward's Liniment’:
“‘DR. WARD'S VEGETABLE ANODYNE LINIMENT’
is the full name, and J. R. Watkins of WINONA, MINNESOTA, THE SOLE AND ONLY PROPRIETOR and successor to Richard Ward.
“WINONA, MINNESOTA.”
“To the Patrons of Dr. Ward's Vegetable Anodyne Liniment:
“I, Richard Ward, known also as Dr. Ward, of Charlottesville, Hancock county, state of Indiana, am the same Ward who for many years made and sold an article of proprietary medicine known as ‘Ward's Celebrated Liniment.’ About two years since my attention was called to the fact that a certain firm of druggists, residing in Wabasha county, state of Minnesota (meaning these plaintiffs), were taking the unwarranted liberty of using my name in connection with a liniment the formula of which I never used or acknowledged as my own.
“In July, 1856, I met a poor crippled preacher on his way to Minnesota, and out of pity for his forlorn condition, I gave him a formula for a certain liniment then in use, known as ‘Dr. Wilson's Botanical Liniment.’ This Dr. Wilson-Sands' Liniment contains LARGE QUANTITIES OF TURPENTINE, and in color and appearance is calculated to deceive when substituted for Dr. Ward's Vegetable Anodyne Liniment, manufactured by J. R. Watkins, of Winona, Minnesota. I consider medicine made from this Dr. Wilson receipt as entirely unfit for internal use, and for such it was never recommended.
“On a certain day of April, 1892, in the office of Justice Staley, in Charlottesville, Indiana, I was shown this Wilson formula with a certain ‘right’ attached, which read as follows:
“‘PENNSYLVANIABURG, July 16, 1856.
.’
“I hereby denounce in the most unmeasured terms every word of the above, including the signature, as a FRAUD and a FORGERY. (Meaning thereby and intending to convey the impression that these plaintiffs had unlawfully forged the written instrument above referred to as a ‘right,’ and meaning that these plaintiffs had forged the signature attached thereto.) It is not my handwriting, nor did I ever authorize any one to write it for me. I also know that the name ‘Wilson's' in the formula has been changed to read ‘Ward's.’
“I take this opportunity to inform the patrons of DR. WARD'S VEGETABLE ANODYNE LINIMENT that I recognize J. R. WATKINS, OF WINONA, MINNESOTA, as my sole and only successor to all the rights I ever had in Ward's Celebrated Liniment; and that I have made over to said J. R. WATKINS, in due form, the WORLD-WIDE RIGHT to use my name as a TRADE-MARK in connection with a full line of medicines, and that I have never authorized any one else to so use my name.
“Richard Ward.
“Witnesses.”
“STATE OF INDIANA, County of Hancock-ss.:
“Before me, a justice of the peace, personally appeared Richard Ward, who, being first duly sworn, acknowledged that he did voluntarily sign the foregoing document, and that every statement therein contained is true, to the best of his knowledge and belief.
“In testimony whereof, I have hereunto set my hand and official seal, this seventh day of February, A. D. 1893.
“SYLVANUS C. STALEY [Seal.]
“Justice of the Peace.”
Exhibit B.
“BEWARE OF COUNTERFEITS
And Base and Dangerous Imitations of our well-known
DR. WARD'S VEGETABLE ANDOYNE LINIMENT.
“Proprietor of Dr. Ward's Vegetable
“Anodyne Liniment.
“Winona, Minn., February 15, 1892.”
Exhibit C.
“DR. WARD‘S “Registered Trade-Mark No. 23,585.
“DR. WARD'S “Registered Trade-Mark No. 23,585.
Pfau & Young and Brown & Abbott, for appellant.
Finkelnburg & Lees and P. Fitzpatrick, for respondents.
This was an action for libel in which plaintiffs had a verdict. The appeal is from an order denying defendant's motion for a new trial. Five separate causes of action were set out in the complaint, but at the trial the second and fifth were abandoned. Pending a hearing in this court of another case between these same parties, reported in 52 Minn. 389, and 54 N. W. 193, the defendant published a circular (Exhibit B) relating to the manufacture and sale of the liniment mentioned in that case, in which manufacture and sale plaintiffs were then engaged. The plaintiffs, claiming this publication to be libelous, made it the foundation for their first cause of action. Later, defendant...
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