Mitchell v. Bradstreet Co.

• Decision Date: 24 May 1893
• Citation: 116 Mo. 226,22 S.W. 724
• Parties: MITCHELL et al. v. BRADSTREET CO.
• Court: Missouri Supreme Court

22 S.W. 724

116 Mo. 226

MITCHELL et al. v. BRADSTREET CO.

Supreme Court of Missouri, Division No. 2.

May 24, 1893.

LIBEL — COMMERCIAL AGENCIES — EVIDENCE — DAMAGES — LOSS OF BUSINESS — UNSUBSTANTIAL ERROR — INSTRUCTIONS.

1. Where, in an action by merchants against a commercial agency for libel in publishing that plaintiffs were insolvent, defendant admits in the answer that the publication, if made, was made in the usual course of business, and to its subscribers, only, it is not error to permit defendant's subscribers to testify to facts which are simply affirmative of the allegations in such answer.

2. Under Rev. St. 1889, § 2303, which prohibits the supreme court from reversing a judgment unless the error of the trial court materially affects the merits of the action, the admission of evidence, in such case, of the stoppage of plaintiffs' goods by a merchant who was not shown to be a subscriber of defendant, nor to have seen its publication, does not justify a reversal.

3. Where, in such case, plaintiffs allege that the publication is a libel on their good name and credit, "and that by reason thereof they were forced to suspend their business, to their damage," etc., it is not error to admit evidence showing loss of trade by plaintiffs immediately following the publication, as such damages are such as flowed directly from, and are the necessary result of, the libel.

4. The fact that proof is admitted, in such case, of plaintiffs' failure to collect accounts other than those set out in the petition, on account of which special damages are claimed, does not justify a reversal.

5. Such publication being libelous per se as to all other persons than plaintiffs' creditors, and its publication being admitted in the answer, and the proof showing that it was sent to others than such creditors, it was not error to instruct the jury to find for plaintiffs, and that the only question for them was the amount of damages.

On rehearing. Motion overruled.

For report of decision on appeal, see 22 S. W. Rep. 358.

BURGESS, J.

It is urged by defendant, in its motion for rehearing, that several questions of importance, and upon which the result of the case depends in this court, were overlooked. The first is that this court did not pass upon the action of the trial court in overruling the objection of defendant to the testimony of Messrs. Martin, Wear, and Hill, witnesses for plaintiffs, who were subscribers of defendant, and creditors of plaintiffs, for the reason that the sheet, as to them, was privileged. Defendant admits in the answer that the publication, if made, was made in the usual course of business, and to its subscribers and employes, only. The testimony of these witnesses was admissible for the purpose of showing the publication of the sheet, as their statements with reference thereto were simply affirmative of the allegations in the answer. Their statements in regard to other matters, privileged, were not of sufficient importance to justify a reversal on that ground. Nor would the action of the court in allowing proof of the stoppage of goods by a merchant not shown to have been a subscriber of defendant, nor to have seen its sheets, justify a reversal of the case for that reason. This court is expressly prohibited by section 2303, Rev. St. 1889, from reversing the judgment of a trial court unless it should believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action. There was no such error in the court's ruling on the admission of the evidence in this matter.

Defendant's next contention is that we failed to decide whether evidence of loss of custom in 1890 was "inadmissible as showing either general or special damages; inadmissible as general damages, as defendant claims, because too...