Mitchell v. Bradstreet Company

• Decision Date: 24 May 1893
• Citation: Mitchell v. Bradstreet Company, 22 S.W. 358, 116 Mo. 226 (Mo. 1893)
• Parties: Mitchell, et al. v. Bradstreet Company, Appellant
• Court: Missouri Supreme Court

22 S.W. 358

116 Mo. 226

Mitchell, et al. v. Bradstreet Company, Appellant

Supreme Court of Missouri, Second Division

May 24, 1893

Rehearing Denied116 Mo. 226 at 244.

Appeal from St. Louis City Circuit Court.-- Hon. L. B. Valliant Judge.

Affirmed.

Boyle & Adams and George R. Lockwood for appellant.

(1) The "sheet" was a privileged communication to subscribers who were creditors of plaintiffs, and the court erred in allowing proof of publication to such subscribers.Odgers [2 Eng. Ed. 1887], p. 238;Newell on Defamation[Ed.1890], p. 393;Trussell v. Scarlett,18 F. 214;Locke v. Bradstreet,22 F. 771;Sunderlin v Bradstreet,46 N.Y. 188;King v. Patterson,49 N. J. L. 417;Pollasky v. Michener, 9 L. R. A.(Mich.) 102.(2) It appeared from the petition and the admissions of plaintiff that the words published were true in the sense given them by the colloquium, that is that plaintiffs were insolvent, and therefore the instruction for a non-suit should have been given.Eddy v. Baldwin,32 Mo. 369;Schwabacher v. Kane,13 Mo.App. 132; Bouvier's Dictionary, Title -- Insolvency;Bank v. Walton,5 L. R. A. 765;Cunningham v. Norton,125 U.S. 77;Thompson v. Thompson,4 Cush. 127.(3) The words published being innocent without the allegation of explanatory facts, they were not libelous per se.Baldwin v. Walser,41 Mo.App. 243;Boyce v. Aubuchon,34 Mo.App. 315 (324);Salvatelle v. Ghio,9 Mo.App. 155;Legg v. Dunleavy,80 Mo. 558 (563);Woodruff v. Bradstreet,5 L. R. A. 555;Christal v. Craig,80 Mo. 367 (373);Townshend on S. & L., secs. 308, 336, 337;Powell v. Crawford,107 Mo. 595.The words complained of not being actionable per se special damages must be alleged, and only such can be recovered, and they must have accrued at the commencement of the suit.Newbold v. Bradstreet,57 Md. 38 (53);Cook v. Cook,100 Mass. 194;Birch v. Benton,26 Mo. 155;Townshend on S. & L., secs. 146, 148, 345;Newell on Defamation, p. 849, 851-2, 868, 926.And where loss of trade is alleged the customers must be called to testify as to why they stopped trading with plaintiffs.Newbold v. Bradstreet,57 Md. 38 (54);Townshend, p. 267, note.Evidence of loss of custom in 1890, was inadmissible as showing either general or special damages; inadmissible as general damages because too remote and not the necessary consequence of the publication complained of; and inadmissible as special damages because it did not accrue before the commencement of the action, because not pleaded, and because not the natural and proximate consequence of the words published.Townshend, secs. 146-148, 197-202, 345;Newell, pp. 849-852, 866, 926.(4) The damages awarded by the jury are grossly excessive and the jury must have been governed by passion or prejudice in fixing the sum assessed by their verdict.(5)The court erred in instructing the jury that they must find for plaintiffs.Const. of Mo. 1875, art. 2, sec. 14;State v. Armstrong,106 Mo. 395;Flint v. Hutchinson Smoke BurnerCo., 16 L. R. A.(Mo.) 243;Republican Pub. Co. v. Miner, 12 Col. 77.

Harvey & Hill for respondents.

(1)The ruling of the trial court that the word assigned, as used in said publication, was not libelous per se, we strenuously insist was error, and that no innuendo was necessary.It is well established that a publication affecting one in his profession, business or trade if false, is libelous per se. 28 Am.LawReg., 257;Hermann v. Bradstreet,19 Mo.App. 227;Hays v. Ball,72 N.Y. 418;Weiss v. Whittemore,28 Mich. 366;White v. Nichols,3 How. U. S. 285;Kimball v. Fenander,21 Wis. 334;Locke v. Bradstreet,22 F. 771;McGinnis v. Knapp,109 Mo. 137.(2) The word "assigned" when used in connection with a merchant's business, as in this case, was actionable per se.Townshend on Libel and Slander, sec. 133;Elain v. Badger,23 Ill. 498;Erber v. Dun,12 F. 526.(3) The publication being libelous per se, it was not necessary to prove special damages, nor was it necessary for respondents to allege same.Trimble v. Anderson,79 Ala. 514;Depew v. Robinson,95 Ind. 412;Swift v. Diceman,31 Conn. 285;Newbit v. Slotuck,35 Me. 215;Hair v. Walker, 2 Greene (Iowa), 440;Montgomery v. Knox,23 Fla. 595.(4) While it is true that when the language is actionable per se, he need not allege or prove special damages, yet he may do so in aggravation of the damages.Odger L. &S. 306;Hicks v. Walker, 2 Greene (Iowa), 440.(5) Where a publication is made of one's profession or trade and is libelous per se, it is competent for plaintiff to prove on account thereof, a general diminution of his business and trade, and he is not required either to aver in his pleadings, nor point out or designate in his proof, the customers who have ceased to deal with him.Bergman v. Jones,94 N.Y. 51;Evans v. Harries,26 L. J. Ex. 52;Broad v. Duester, 8 Biss.(U.S.) 265;Trust Co. v. Perrine,23 N. J. L. 402;57 Am. Dec. 400;Weiss v. Whittemore, 28 Mich. 366.

OPINION

Burgess, J.

-- Action for libel.On the twenty-fifth day of November 1889, and prior thereto, the plaintiffs were partners, engaged in the mercantile business in the town of Sugar Loaf, Cleburne county, Arkansas, 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, Missouri, 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 defendants' 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 plaintiff's 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 defendants, 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 "Mitchell, 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 some-what 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...