McDermott v. Union Credit Company
Decision Date | 26 April 1899 |
Docket Number | 11,402 - (5) |
Citation | 78 N.W. 967,76 Minn. 84 |
Parties | THOMAS J. McDERMOTT v. UNION CREDIT COMPANY |
Court | Minnesota Supreme Court |
Petition on Rehearing Filed June 28, 1899
Action in the district court for Ramsey county to recover $5,000 damages for libel. From an order, Bunn, J., overruling a demurrer to the complaint, defendant appealed. Reversed on reargument.
Libel -- Mercantile Report -- Payment of Debts.
A false and malicious publication, in writing or print, to the effect that a person is not prompt, but habitually slow, in the payment of his personal bills, is actionable per se, although published of him as an individual, and not in relation to his business or profession. Such a charge naturally tends to injure his standing in the community, and to lower him in the esteem and respect of his neighbors.
On Reargument.
June 28, 1899.
Libel -- Publication not Actionable.
Held on reargument, that the publication, when construed in connection with the whole key to the book in which it was published, is not actionable per se.
LARIMORE & Marvin, for appellant.
The meaning of the words cannot be enlarged by innuendo. Van Vechten v. Hopkins, 5 Johns. 211; Fry v. Bennett, 5 Sandf. 54. It is for the court to decide in the first instance whether the words are susceptible of the alleged innuendo. Woodruff v. Bradstreet, 116 N.Y. 217; Greenwood v. Cobbey, 26 Neb. 449. The publication, construed as a whole, would not be libellous per se even though defendant were a merchant or trader, much less where he is a lawyer. Spurlock v. Lombard, 59 Mo.App. 225; Woodruff v. Bradstreet, supra; Newbold v. Bradstreet, 57 Md. 38; Hirshfield v. Fort Worth, 83 Tex. 452; Stewart v. Minn. Tribune Co., 40 Minn. 101; Allen v. Cape Fear, 100 N.C. 397; Zier v. Hofflin, 33 Minn. 66. The words cannot be presumed to have damaged plaintiff, hence defendant is liable only if they were published with express malice, and then only for special damages, which the complaint does not allege. Stewart v. Minn. Tribune Co., supra; Platto v. Geilfuss, 47 Wis. 491; Newbold v. Bradstreet, supra; Hirshfield v. Fort Worth, supra; Walker v. Tribune Co., 29 F. 827; Homer v. Engelhardt, 117 Mass. 539; Gillan v. State, 96 Wis. 460. See Doyley v. Roberts, 3 Bing. (N.C.) 835; Sharpe v. Larson, 67 Minn. 428. Where recovery is sought for words because they injure plaintiff in his profession, it must be alleged that they were spoken or published of him in his professional character. Van Tassel v. Capron, 1 Denio, 250; Kinney v. Nash, 3 N.Y. 177; Gove v. Blethen, 21 Minn. 80. G.S. 1894, § 5257, has not changed the rule. Smith v. Coe, 22 Minn. 276; Fry v. Bennett, supra; Petsch v. Dispatch P. Co., 40 Minn. 291; Richmond v. Post, 69 Minn. 457. A demurrer does not admit the truth of an innuendo. Wheeler v. Haynes, 1 Per. & Dav. 55; Fry v. Bennett, supra; Kraus v. Sentinel, 60 Wis. 425. See Rex v. Horne, Cowp. 672; Pratt v. Pioneer Press Co., 35 Minn. 251; Gillan v. State, supra.
S. L. Pierce, John H. Ives and Thos. J. McDermott, for respondent.
The book contained about 35,000 names. It contained a key to the letters used to indicate the report or rating of each individual as to the payment of his bills. This key is as follows:
"B, prompt weekly; C, prompt monthly; D, pays on demand; E, slow; F, pays when pushed; G, promises not kept; H, refused payment; I, note protested; K, left for collection; L, judgment taken; N, unrecommended credit; O, disputed bills."
The alleged libel consisted of defendant, in this book, reporting or rating the plaintiff "E," which, according to the key, meant that he was slow in payment of his bills. No extrinsic facts were alleged to enlarge the meaning of the words. This was attempted by innuendo, but it is a familiar rule of the law of libel and slander that the sense of words cannot be enlarged by mere innuendo. Neither were any facts alleged tending to show special damages. The publication is alleged to have been made falsely and maliciously, but there is no allegation that the words were published of and concerning the plaintiff in his profession as an attorney. And when it is considered that the "key," taken as a whole, impliedly negatives any charge that the plaintiff is either dishonest or insolvent, there is nothing in the publication that would necessarily or directly affect him in relation to his profession as a lawyer.
As a publication addressed to retail dealers, it presumably, if not necessarily, referred to his habit in the matter of paying his personal bills. The head and front of the publication is that plaintiff is slow in the payment of his bills, but not to the extent that his promises are not kept or that it is necessary to place a claim in the hands of a collector, or to put it into judgment, in order to secure payment, or that he ever disputes his bills. An attorney, like any other man, may for various reasons be slow, to the extent of not paying his personal bills promptly, weekly or monthly, or on demand, and yet be not only honest and solvent, but also entirely prompt in the performance of his professional duties, and in accounting for and paying over all property or money of his clients which may come into his hands. It is possible that anything published in disparagement, however slight, of a person as an individual...
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