Nelson v. Whitten

• Decision Date: 08 March 1921
• Citation: 272 F. 135
• Parties: NELSON v. WHITTEN.
• Court: U.S. District Court — Eastern District of New York

272 F. 135

NELSON v. WHITTEN.

United States District Court, E.D. New York.

March 8, 1921

Strong & Mellen, of New York City (Chase Mellen, of New York City of counsel), for plaintiff.

McAdoo Cotton & Franklin, of New York City (Boykin C. Wright, of New York City, of counsel), for defendant.

GARVIN District Judge.

Defendant has demurred to the complaint upon the ground that no cause of action has been alleged and plaintiff now moves for judgment on the pleadings. The propriety of this motion as a matter of practice is not questioned. The action is for libel and is based upon a letter which the parties agree is libelous per se.

Plaintiff having been in the employ of defendant as captain of a vessel known as the Drusilla, wrote asking for a letter or statement in writing respecting his services as such captain. Defendant replied by letter, dictated to and transcribed and mailed by a stenographer, which reads as follows:

'Columbia Graphophone Manufacturing Company,

'Manufacturers of Columbia Grafonolas, Columbia Records and the

Dictaphone

'Registered.'

'Columbia Graphophone Company, Sole Sales Agent.

President, Francis S. Whitten. Secretary, C. W. Cox.

Vice-President, Wm. M. Johnson. Asst. Treas. & Asst. Sec'y, F. J. Ames.

Vice-Pres. & Treas., C. Wm. Woddrop. Comptroller, H. C. Cox.

Vice-Pres. & General Manager, H. L. Willson. Assistant to President, T. C. roberts.

Ass't General Manager, Hulbert A. Yerkes. In Charge of Engineering and Manufacture.

'(Trade Symbol.)

'Woolworth Building, New York, October 5, 1920.

'Captain Andrew Nelson, 670 92d Street, Brooklyn, N.Y.-- Dear Sir: In accordance with your request, I desire to advise you that you served as captain of the Drusilla in my employ from September 17, 1919, to July 22, 1920. As to your qualifications as a captain I can say you were an excellent housekeeper. Your knowledge of navigation is exceedingly meager.

'I am so much in doubt as to your loyalty and integrity that I could not conscientiously give a recommendation to any one desiring to employ you.

'Very truly yours,

'FSW. F.

Francis S. Whitten.'

The demurrer is based on two grounds: First, that, inasmuch as the libel was communicated to defendant's stenographer only, there was no publication, because a stenographer has become such a common, if not necessary, part of the methods of communication in writing, that any letter would be expected to be dictated, if written at all; and, second, that plaintiff cannot complain for the reason that the letter was written in response to a request by him for a recommendation.

So far as the latter ground is concerned the defendant...