Minter v. Bradstreet Co.

• Decision Date: 24 February 1903
• Citation: 174 Mo. 444,73 S.W. 668
• Parties: MINTER et al. v. BRADSTREET CO.
• Court: Missouri Supreme Court

73 S.W. 668

174 Mo. 444

MINTER et al. v.BRADSTREET CO.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

LIBEL — COMMERCIAL AGENCY — REPORT ON MERCHANT—MALICE—ACTS OF AGENT—LIABILITY — INSTRUCTIONS — DAMAGES — MITIGATING CIRCUMSTANCES — VERDICT — STATUTES.

1. In an action against a commercial agency for having circulated a report that plaintiffs had secured a bank for its claim, the fact that plaintiffs' firm had given a bank note, secured by the individual signatures of the plaintiffs, did not warrant an instruction that plaintiffs could not recover because of defendant's statement as to the security, since such security could not have been that meant by defendant's statement.

2. The fact that defendant's agent from whom it received such information may have believed that it was true afforded no defense, unless made without malice.

3. Where a commercial agency, with express malice, circulates a false report that a merchant is not in a sound financial condition, the merchant, in an action for damages, is entitled to punitive damages.

4. Where, in an action against a commercial agency owing to its having circulated a report that plaintiffs were said to have "secured" a bank, but there was no evidence that any bank had been given security, an instruction submitting to the jury the question whether security had been given could not prejudice defendant, though such question was one of law.

5. The burden was on defendant to show plaintiffs' insolvency by a preponderance of the evidence.

6. The defense being truth of the report, the evidence examined, and held sufficient to render the question of solvency for the jury.

7.Act 1895, p. 168(Rev. St. 1899, § 595), provides that, in all actions where exemplary damages are recoverable and are allowed by the jury, the amount thereof shall be separately stated in the verdict.Held, that the statute has no application to an action pending at the time of its passage.

8. Rev. St. 1889, § 2081, enacts that, in actions for libel, defendant may give evidence of any mitigating circumstances to reduce the amount of damages.Held, that where, in an action for libel, defendant gives evidence of circumstances in mitigation of damages, it is not the duty of the trial court to instruct on the same where defendant fails to request any such instruction.

9.In an action by a merchant against a commercial agency owing to defendant's having circulated a report that plaintiff was not in a sound financial condition, the court charged that the damages were to be estimated under all the instructions, and that they might be such as the jury should think proper under the evidence, not to exceed $100,000; that the damages might be punitive and compensatory; that compensatory damages are to be given when plaintiffs have sustained substantial injury, and that punitive damages are awarded in order to punish defendant, but are not allowed unless defendant was actuated by ill will or reckless disregard of the consequences of his act; and that, in assessing damages for plaintiff, they were not restricted to the pecuniary loss, but might inflict exemplary damages.Held, that the instructions were not open to the objection that the court had given "a roving commission to the jury as to damages."

10.The court having refused to allow the jury to pass on a sentence in defendants' report, "they are behind, and cannot meet current indebtedness," refusal to instruct that plaintiff could not recover because of such clause was not prejudicial to defendant.

11.The court charged that plaintiff's right to recover depended on the falsity and publication "as elsewhere explained of."Held, that the instruction was not erroneous in that it made no mention of defendant's privilege, and had no reference to another instruction, the court having by its second instruction fully covered defendant's rights under the defense of privilege.

12.The court having charged that the publication was libelous, defendant could not complain that it took from the jury the question whether the publication was libelous, in the absence of a request on its part on such phase of the case, and the absence of any such question in the motion for a new trial, inasmuch as such conduct amounted to a waiver.

13.An objection to an instruction, not raised on the motion for a new trial, cannot be raised on appeal.

14.An instruction that actual malice meant that the report circulated by defendant was prepared and published, not in good faith, but with an intent to injure plaintiff, or with a willful and wanton neglect of the rights and interest of plaintiff, was not error.

15.It appearing from the evidence that, after defendant had received notice from its correspondent that it was reported plaintiffs had given a mortgage to a bank, plaintiffs contradicted the report, and called at defendant's office with the cashier of the bank, who denied the report, but that defendant continued to circulate such report, the conduct of the officers of defendant was such as to render them subject to the charge of malice.

16.A commercial agency is responsible in libel for acts of its agents done in the course of its business.

17.On the trial, plaintiff's counsel stated that he had noticed in a magazine some remarks concerning commercial agencies which expressed his views, and that as he had not committed them to memory he would read them from the magazine, and he read to the jury an article criticising the conduct of such agencies and stating that they should exercise care in making their reports.Held that, as the article was used solely for argument, and was not offered as law, and was not in conflict with the law of the case as presented by the instructions, there was no prejudicial error, though the practice was not one to be commended.

18.It appearing from the evidence that at the time of the publication of the libel plaintiffs were merchants in good standing and credit, doing a large and prosperous business, and that as a result of the libelous reports their credit and standing were ruined and they were driven out of business, and that the statements were conceived by one of defendant's agents in malice, a verdict for $30,000 in favor of plaintiffs would not be disturbed as excessive and the result of prejudice.

Appeal from Circuit Court, Johnson County; Jas. H. Lay, Judge.

Action by Charles D. Minter and others against the Bradstreet Company.From a judgment for plaintiffs, defendant appeals.Affirmed.

Jno.W. Noble, A. B. Logan, and Geo. R. Lockwood, for appellant.J. W. Suddath, O. L. Houts, and Geo. P. B. Jackson, for respondents.

BURGESS, J.

This is an action for damages for libel by the plaintiffs, merchants, against the defendant, on account of a false report, circulated in December, 1890, by the defendant concerning the plaintiffs' business standing, claiming to have been prompted by actual malice, for the purpose of injuring plaintiffs in their business.Upon application of defendant, the venue of the cause was changed from Pettis to Johnson county, where, on a trial had in December, 1893, plaintiffs recovered a verdict for $30,000.On defendant's motion a new trial was granted, upon the grounds that the court had erroneously instructed the jury, and that the damages allowed by the jury were excessive.Thereafter in February, 1898, another trial was had, and plaintiffs recovered a verdict and judgment for $27,000, from which defendant, after filing motion for a new trial, and the same being overruled, appeals.

The petition alleges: "That said defendant is engaged in the business of conducting a mercantile agency, the general nature of which is to obtain information as to the financial standing, responsibility, and credit of merchants generally throughout the United States, and to furnish such information to other merchants in the various states of the United States and Canada.And plaintiffs state that on or about the 22d day of December, 1890, the defendant falsely, wrongfully, and maliciously published concerning the plaintiffs and their said business the following false, malicious, and libelous language and matter, to wit: `They[meaning the plaintiffs] are behind, and cannot meet current indebtedness.'`The opinion is expressed that a local bank has been secured,' thereby meaning that the defendant and its agents, servants, and employés and representatives entertained the opinion and belief that security had been given to a bank in the city of Sedalia, Mo. `Their present condition [meaning the then financial and business condition of plaintiffs] is not regarded as particularly flattering, and seems to suggest cash dealings'[thereby meaning that the plaintiffs were threatened with insolvency, that they were about to fail, and that they were unworthy of credit].By reason of which publication of said false, malicious, and libelous language and matter concerning these plaintiffs and their business, the plaintiffs have been damaged in the sum of one hundred thousand dollars."

The answer, after denying generally all of the allegations in the petition, alleges: "That it is a corporation organized for and engaged in the business of conducting a mercantile agency, and is now, and was at all times mentioned in said petition, employed by a number of merchants and manufacturers in the state of Missouri and elsewhere, as their representative and agent, to collect, procure, preserve, and report to them, said patrons or employers of defendant, reports and informations as to the business, estate, property, credit, conduct, character, and truthworthiness of persons and corporations engaged in trade or commerce in the state of Missouri and elsewhere, so that defendant's said employers, who are commonly known as "subscribers" to defendant's agency, may have the knowledge and information necessary to enable them to safely and properly conduct business with strangers or distant customers; and it is expressly agreed...