Mitchell v. Bradstreet Co.

• Decision Date: 02 May 1893
• Citation: 22 S.W. 358,116 Mo. 226
• Court: Missouri Supreme Court
• Parties: MITCHELL et al. v. BRADSTREET CO.<SMALL><SUP>1</SUP></SMALL>

22 S.W. 358

116 Mo. 226

MITCHELL et al. v. BRADSTREET CO.¹

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

LIBEL — COMMERCIAL AGENCIES — PRIVILEGE — LIBEL PER SE — INSTRUCTIONS.

1. A false publication by a commercial agency as to the solvency of a business firm is not privileged where the publication sheet is issued to all the subscribers of the agency without regard to their being creditors of the firm.

2. A false publication that a business firm is insolvent is libelous per se.

3. Though Const. art. 2, § 14, provides that in actions for libel the jury shall, under the direction of the court, determine the law and the fact, still, under Rev. St. 1889, § 2188, providing that on conclusion of the evidence either party may move for instructions on any point of law, and the court may, of its own motion, give like instructions, the court is not, in the absence of a request, obliged to instruct the jury that they are the judges of the law as well as the fact.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by James Mitchell and others against the Bradstreet Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Boyle & Adams and Geo. R. Lockwood, for appellant. Harvey & Hill, for respondents.

BURGESS, J.

Action for libel. On the 25th day of November, 1889, and prior thereto, the plaintiffs were partners, engaged in the mercantile business in the town of Sugar Loaf, Clebourne county, Ark., under the firm name and style of Mitchell, Smith & Co. The plaintiffs kept a general store their stock consisting of such goods as are usually carried by country merchants. While thus engaged the defendant, duly organized, and doing business in St. Louis, Mo., and conducting a mercantile agency under the name of the Bradstreet Company, on the date aforesaid published of and concerning the plaintiffs the following language and accusation, to wit: "Mitchell, Smith & Co., of Sugar Loaf, Arkansas, G. S., assigned." The petition alleges that the publication was false, and claims special damages for injuries sustained to their credit in various ways, and with different ones of their patrons and customers. The material part of the answer of defendant is as follows: "And, further answering said amended petition, defendant says that it is a corporation organized for and engaged in the business of conducting a mercantile agency, and has been engaged in said business for many years, and is now, and was on November 22, 1889, and had been for many years prior to said date, employed by a large number of merchants and manufacturers throughout the United States as their representative and agent to collect, procure, and preserve for them, said patrons or employers, reports and information as to the estate, property, credit, conduct, character, and trustworthiness of persons and corporations engaged in trade or commerce in the United States 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 between defendant and its said employers that all information, whether written, printed, or verbal, furnished by defendant, its agents or servants, shall be held in strict confidence, and used exclusively for the benefit of such subscriber; and for the sole purpose of giving its said employers or subscribers, in strict confidence, and for their exclusive use and benefit, as aforesaid, reports and information as to merchants and corporations engaged in mercantile pursuits in various parts of the country, defendant issues from time to time, in the city of St. Louis and elsewhere, to its said employers, small sheets, containing such reports and information concerning merchants and manufacturers in various portions of the country as defendant believes to be true and of value or importance to its aforesaid subscribers; and if defendant published of and concerning plaintiffs the words complained of in plaintiffs' petition, defendant had good reason to believe, and did believe, at the time of alleged publication, that the same were true. And defendant further says that at the time of alleged publication plaintiffs were unknown to the agents and servants of defendant, and that said publication, if made, was made innocently, without malice, in the usual course of business, and to defendant's said subscribers or employers only, in strict confidence, and for the exclusive use of said subscribers, and in the belief that plaintiffs were customers of defendant's subscribers, or of some of them; and defendant says that said subscribers, or some of them, were creditors of plaintiffs, or otherwise directly interested in the estate, property, credit, conduct, and character of plaintiffs." The proof tends to show that plaintiffs were the only firm at the date aforesaid doing business in Sugar Loaf under the said name of Mithell, Smith & Co.; that at the time of said publication they were doing a large credit business with farmers, and were dependent upon their good standing and credit among merchants at St. Louis and elsewhere as a means of conducting and carrying on their said business; that at the time of said publication, owing to the partial failure of the cotton crops in their section of the country, they were unable to collect in full debts due to them, and were dependent upon their credit and standing among their creditors as a means of successfully prosecuting their said business. They were somewhat indebted at the time of the publication to parties in the city of St. Louis, but their assets were ample to meet and pay all of their liabilities had their credit and standing among their said creditors been unimpaired by the publication aforesaid. Up to the time of said publication the creditors of the respondents were resting satisfied, and the business of respondents was being pursued in a safe and comparatively prosperous manner. The proof also shows that the publication complained of was through the medium of what is known as "Bradstreet's Sheet," a daily paper published by defendant in the city of St. Louis, and circulated among the merchants of said city and surrounding states. It is also shown that the defendant was notified in a day or two after said publication that the same was false, but it declined, or failed in the subsequent issue of its said sheet, to retract or apologize, or make any explanation of said publication. The proof shows that plaintiffs, prior to said publication, had good credit in the city of St. Louis, — that is, credit to an extent commensurate with all their necessities; but on the coming out of said publication their creditors became restless, some of them placing their claims in the hands of attorneys, some writing urgent letters, and one stopping goods in transit, while others in St. Louis became exceedingly apprehensive, and by their repeated inquiries at the office of Hill, Fontaine & Co., plaintiffs' principal creditor, compelled the latter to take urgent steps upon their claim, resulting in plaintiffs' sale of their property at a sacrifice, the suspension of their business, and injury of their credit.

At the close of plaintiffs' evidence, defendant asked the following instruction: "The court instructs the jury that, under the pleadings and evidence, plaintiffs are not entitled to recover in this action, and you will therefore find for defendant." The court refused to give this instruction, to which refusal defendant duly excepted. At the close of the whole case defendant asked the following six instructions, to wit: "(1) The court instructs the jury that there is no evidence in this case showing that defendant published of plaintiffs the words complained of with malice in fact; that is, through hatred, ill will, or a desire to injure plaintiffs as merchants or individuals. (2) The court instructs the jury that defendant had the right to report to such of its customers as were creditors of the plaintiffs any information touching plaintiffs' financial condition which it received in the usual course of business, and believed to be true, and that defendant is not liable to plaintiffs for any damages that may have been caused them through such report so made. (3) The court instructs the jury that if they believe from the evidence that defendant, on or about November 23, 1889, published of plaintiffs the words complained of, and at that time plaintiffs were insolvent, — that is, could not pay out of their assets their debts as they matured in the ordinary course of business, — then they will find for defendant. (4) The court instructs the jury that if they believe from the evidence that the damages claimed by plaintiffs were not caused by reason of the publication by defendant of the words complained of, but were brought about by the circulation by others of reports injurious to the financial condition or responsibility of plaintiffs, or because plaintiffs were insolvent, — that is, unable to pay out of their assets their obligations as they matured in the usual course of business, — they will find for defendant. (5) The court instructs the jury that if they believe from the evidence that plaintiffs, by compromising their debts, or some of them, saved more money than they lost through their suspension of business, they will find for defendant. (6) The court instructs the jury that, although they may find for plaintiffs, yet, if they believe from the evidence that plaintiffs, by compromising their debts, or some of them, saved more money than they lost through their suspension of business, then they will find for plaintiffs nominal damages." All of which instructions the court refused to give, to which refusal the defendant then and there at the time duly excepted. The court then, of its own motion, gave the following instruction: "The court instructs the jury as...