Pacific Packing Co. v. Bradstreet Co.

• Decision Date: 17 February 1914
• Parties: THE PACIFIC PACKING COMPANY, a Corporation, Appellant, v. THE BRADSTREET COMPANY, a Corporation, and LESLIE L. LONG, Respondents
• Court: Idaho Supreme Court

139 P. 1007

25 Idaho 696

THE PACIFIC PACKING COMPANY, a Corporation, Appellant, v. THE BRADSTREET COMPANY, a Corporation, and LESLIE L. LONG, Respondents

Supreme Court of Idaho

February 17, 1914

COMMERCIAL AGENCY REPORTS-PUBLICATION OF LIBELOUS MATTER-SUFFICIENCY OF COMPLAINT-MERCANTILE AGENCY REPORTS NOT PRIVILEGED.

1. Language in the report of a mercantile agency as follows "The Pacific Packing Company has been sued in the superior court of Los Angeles county, California, by the Pacific Fruit Auction Company for the sum of $230,000.00 for money advanced," if false and maliciously made, is libelous and therefore actionable, without alleging in the complaint any other than general damages.

2. The publication of a false report by a mercantile agency to its patrons, to the effect that a company with but $50,000 capital had been sued for $230,000 on account of "money advanced," can have no other result than that of casting doubt and suspicion on the financial standing of such company and consequently injuring its business.

3. The report of a mercantile agency to its patrons on the credit and financial standing of a business concern is not a privileged communication. One who conducts the business of selling information concerning the affairs of others is responsible for the consequences of his acts, and liable in damages for the publication of libelous matter.

4. Held, that under the liberal rule of pleading adopted in this state, the demurrer to the complaint in this case should have been overruled, as the allegations of the complaint are sufficient to put the defendant corporation on its defense.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action to recover damages from the defendant for alleged publication of libelous matter as a commercial agency. Demurrer to complaint sustained by lower court. Plaintiff appealed. Reversed.

Demurrer overruled. Costs awarded to appellant. Petition for rehearing denied.

Wood &amp Driscoll, for Appellant.

An allegation of publication of libel to third persons without naming them is always sufficient. (Waistel v. Holman, 2 Hall (N. Y.), 193; Townshend on Libel and Slander, p 555, sec. 324; Wilcox v. Moon, 63 Vt. 481, 22 A. 80; Hamilton v. Lowery, 33 Ind.App. 184, 71 N.E. 54; Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S.E. 692, 693; Penry v. Dozier, 161 Ala. 292, 49 So. 909; Morgan v. Black, 132 Ga. 67, 63 S.E. 821.)

Where the words are libelous per se, no damages need be alleged. (Dunn v. Maier, 82 F. 169, 172, 27 C. C. A. 100.)

"Published words, whether written or oral, are actionable if they directly tend to the prejudice or injury of anyone in his profession, trade or business. . . ." (25 Cyc. 326.)

"The law guards most carefully the credit of all merchants and traders. Any imputation on their solvency, any suggestion that they are in pecuniary difficulties, or attempting to evade the operation of any bankruptcy act is therefore actionable per se." (Odgers on Libel and Slander, p. 66; Jones v. Littler, 7 Mees. & W. 423, 10 L. J. Ex. 171; McKenzie v. Denver Times Pub. Co., 3 Colo. App. 554, 34 P. 577; Hayes v. Press Co., 127 Pa. 642, 14 Am. St. 874, 18 A. 331, 5 L. R. A. 643; Smith v. Bradstreet Co., 63 S.C. 525, 41 S.E. 763; Sewall v. Catlin, 3 Wend. (N. Y.) 292; Maldonado & Co. v. Yglesias, 154 A.D. 520, 139 N.Y.S. 102; Minter v. Bradstreet Co., 174 Mo. 444, 73 S.W. 668; Evans v. Harries, 1 Hurl. & N. 251, 26 L. J. Ex. 31; Ratcliffe v. Evans, 61 L. J. Q. B. 535, 2 Q. B. (1892) 524, 66 L. T. 794, 40 W. R. 578; Weiss v. Whittemore, 28 Mich. 366; Trenton Mut. Life etc. Ins. Co. v. Perrine, 23 N.J.L. 402, 57 Am. Dec. 400; Moore v. Rolin, 89 Va. 107, 15 S.E. 520, 16 L. R. A. 625; Wright v. Coules, 4 Cal.App. 343, 87 P. 809.)

No privilege, not even a qualified one, attaches to such communications, whether made to patrons or otherwise. (MacIntosh v. Dunn, L. R. App. Cas. (1908) 390, 2 British Ruling Cases, 203; Douglass v. Daisley, 114 F. 628, 52 C. C. A. 324, 57 L. R. A. 475.)

Richards & Haga and McKeen F. Morrow, for Respondents.

An article written concerning a corporation is not libelous per se unless the necessary result of the publication of the language used, without proof of extrinsic facts, is to affect the financial standing of the corporation and cause it pecuniary loss. (Rev. Codes, sec. 6737; 25 Cyc. 337, 341; Newbold v. J. M. Bradstreet & Son, 57 Md. 38, 40 Am. Rep. 426; Fry v. McCord, 95 Tenn. 678, 33 S.W. 568; Memphis Tel. Co. v. Cumberland Tel. & Tel. Co., 145 F. 904, 76 C. C. A. 436; Warner Instrument Co. v. Ingersoll, 157 F. 311; Kemble & Mills v. Kaign, 131 A.D. 63, 115 N.Y.S. 809.)

The language alleged to have been used by respondents must be construed in its natural and ordinary sense. (25 Cyc. 341; State v. Sheridan, 14 Idaho 222, 234, 93 P. 656, 15 L. R. A., N. S., 497.)

When so construed it does not necessarily import lack of honesty or integrity, want of credit, or insolvency, and is therefore not actionable without proof of special damages. (Giacona v. Bradstreet Co., 48 La. Ann. 1191, 20 So. 706; Newbold v. J. M. Bradstreet & Son, supra; N. S. Sherman Machinery Co. v. Dun, 28 Okla. 447, 114 P. 617; Woodruff v. Bradstreet Co., 116 N.Y. 217, 22 N.E. 354, 5 L. R. A. 555; Bradstreet Co. v. Oswald, 96 Ga. 396, 23 S.E. 423; Victor Safe & Lock Co. v. Deright, 147 F. 211, 77 C. C. A. 437, 8 Ann. Cas. 809; Douglass v. Daisley, 114 F. 628, 638, 52 C. C. A. 324, 57 L. R. A. 475.)

Where it is necessary to resort to an innuendo to show that the language used is libelous, such language is not actionable per se, and special damage must be alleged. (Chiatovich v. Hanchett, 88 F. 873, 876; Morrison v. Dean (Tex. Civ. App.), 104 S.W. 505.)

The communication alleged to have been libelous is shown by the complaint to have been sent to patrons of respondent company, who were interested in the publication, and it was therefore privileged. (Hubbard v. Cowling, 36 Okla. 603, 129 P. 714, 715; Trussell v. Scarlett, 18 F. 214; Locke v. Bradstreet Co., 22 F. 771, 773; Sunderlin v. Bradstreet Co., 46 N.Y. 188, 7 Am. Rep. 322; Ormsby v. Douglas, 37 N.Y. 477; Rotholz v. Dunkle, 53 N.J.L. 438, 26 Am. St. 432, 22 A. 193, 137 L. R. A. 655; State ex rel. Lanning v. Lonsdale, 48 Wis. 348, 4 N.W. 390; Erber v. Dun, 12 F. 526, 4 McCrary, 160; Bradstreet Co. v. Gill, 72 Tex. 115, 13 Am. St. 762, 9 S.W. 753, 2 L. R. A. 405.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted for the recovery of damages caused by the publication of an alleged libel of and concerning the plaintiff by the defendant. The trial court sustained a demurrer to the complaint, and a judgment of dismissal was thereupon entered, and this appeal was prosecuted from the judgment.

The complaint alleges the corporate existence of the plaintiff and defendant and that it was duly authorized to conduct business in the state of Idaho and that it was engaged in business in Ada, Canyon and Washington counties, and alleged that the defendant, the Bradstreet Company, was engaged in the state of Idaho and in the counties of Ada, Canyon and Washington, in furnishing for a valuable consideration reports and information concerning the credit and financial standing and rating of business men and corporations engaged in business and commercial transactions, and it is alleged that Leslie L. Long was its managing officer, agent and representative in the state of Idaho.

Paragraphs 5, 7, and 8 and a part of 9 are as follows:

"That acting as such agent, and in the scope of his employment as such agent for the said defendant, the Bradstreet Company and in behalf of the Bradstreet Company, and in the transaction of the aforesaid business of the said defendant, the Bradstreet Company, the said defendant Long on or about the 23d day of September, 1912, maliciously, wantonly, recklessly and well knowing the premises, did write, compose and publish in the aforesaid counties of Ada, Canyon and Washington in the state of Idaho, to its patrons, and among the said growers and packers of fruit in said counties, whose names are unknown to plaintiff, concerning and in reference to this plaintiff and the credit, financial and business standing of this plaintiff, certain words in writing, and plaintiff is informed and believes, and hence, on information and belief, alleges, that the tenor of the said words was as follows, to wit: The Pacific Packing Company has been sued in the superior court of Los Angeles county, California, by the Pacific Fruit Auction Company for the sum of $ 230,000 for money advanced, and the plaintiff alleges that the said words were read by the said patrons, and the said growers and packers of fruit. . . .

"Plaintiff further alleges that the defendant, Leslie L. Long, and the said defendant, the Bradstreet Company, meant to convey and communicate to the said third parties to whom the words hereinbefore set forth were published, that the plaintiff was not financially sound, solvent and responsible, and was not able to pay all its financial obligations, and was not worthy of credit, and that the said words were so understood by the said parties to whom they were published.

"Plaintiff alleges that the said words were false; and plaintiff further alleges that the plaintiff is, and at all times herein mentioned was financially sound, solvent and responsible, and that the plaintiff is, and at all times herein mentioned was, able to pay its financial obligations, and the plaintiff, at all times herein mentioned, was worthy of credit.

"That prior to the publication of the words set forth in paragraph five, the plaintiff corporation was engaged in the business of marketing fruit in Ada, Canyon and Washington...