Powell v. Young

• Decision Date: 27 September 1928
• Citation: 151 Va. 985
• Parties: JORDAN B. POWELL v. AL YOUNG.
• Court: Virginia Supreme Court

Page 985

151 Va. 985

JORDAN B. POWELL v. AL YOUNG.

Supreme Court of Virginia, Richmond.

September 27, 1928.

Reheard December 6, 1928.

1. APPEAL AND ERROR — Motion to Set Aside Verdict as Contrary to the Law and the Evidence — Case on Appeal Practically as on a Demurrer to the Evidence. — Where the action of the trial court in refusing to set aside the verdict of the jury as contrary to the law and the evidence is assigned as error, the assignment on appeal is considered practically as on a demurrer to the evidence.

2. LIBEL AND SLANDER — Impersonal Comments on the Unwisdom of Purchasing from Itinerant Vendors — Case at Bar. — The instant case was an action of libel based upon advertisements of defendant, a local jeweler, critizing the sale of jewelry by nonresident firms through "local sharks." The jury found for plaintiff. Impersonal comments on the unwisdom of purchasing from itinerant vendors are not objectionable, and if the jury had believed that this publication was of that character then the defendant was not guilty, and they would have so found, not because it was a qualified privilege, but because this right to comment is a primary right guaranteed to everyone, and might have been exercised at any time and in any place.

3. LIBEL AND SLANDER — Qualified Privilege — Suggestion that Publication is Objectionable. — Qualified privilege as that term is used in the law of libel carries with it the suggestion that the publication is objectionable in certain circumstances, and would be actionable but for the peculiar conditions under which it was made.

4. LIBEL AND SLANDER — Whether Alleged Libel Referred to Plaintiff — Question for the Jury — Advertisement Criticizing Installment Jewelry Concern for Employing Local Shark to Sell for it — Case at Bar. — The instant case was an action for libel. Defendant, a local jeweler, published in a local paper an advertisement criticizing any city installment jewelry concern for employing a "local shark" to sell for it. On the same day he posted in his window a placard concerning city jewelers "with their local shark representative." There was no plea of justification but one of not guilty. The jury were instructed that if they believed the publication in fact was intended to refer to the plaintiff, they should give to it the same force that they would have given had he been there named. Witnesses testified that they understood the advetisement to refer to the plaintiff.

Held: That the question of whether the publication was intended to refer to the plaintiff was properly submitted to the jury and their verdict for the plaintiff settled it in his favor.

5. LIBEL AND SLANDER — Libelous Words — "Shark." — "Shark" is not always a particularly opprobrious epithet, but at times has a sinster signification, being used in the sense of "crook."

6. APPEAL AND ERROR — Rule XXII of the Supreme Court of Appeals — Objection that Instruction is Misleading and Inappropriate and did not State the Law Applicable. — To say that an instruction is misleading and inappropriate upon the evidence, and does not correctly state the law applicable thereto, is too general to be of any assistance to the trial court and is a plain violation of the letter and spirit of Rule XXII of the Supreme Court of Appeals.

7. LIBEL AND SLANDER — Privilege — Assertion that Competitor is Dishonest — Case at Bar. — A publication charging a candidate for office with moral delinquency is not privileged, and for a stronger reason a publication not founded upon facts charging a competitor in business with moral deliquency is not.

8. LIBEL AND SLANDER — Libel Per Se — Prejudice to Party in Profession or Trade. — Defamatory words falsely spoken of a party which prejudiced such party in his or her profession or trade are slanderous per se.

9. LIBEL AND SLANDER — Readers of Publication Understanding that it Referred to Plaintiff — Instruction — Case at Bar. — In the instant case, an action for libel, there was a verdict and judgment for plaintiff. Defendant objected to an instruction given for plaintiff as erroneous in stating that it was sufficient if those who knew the plaintiff understood the publication as referring to him. That instruction told the jury that before they could find a verdict for the plaintiff, they must believe that the advertisement complained of was intended to refer to the plaintiff, and would be so understood by persons who knew him, from reading it, and that the burden of showing this was upon the plaintiff.

Held: That the instruction was proper.

10. APPEAL AND ERROR — Instructions — Objection not Made at Time Instruction was Given. — On appeal objections to instructions cannot be considered where no objection was made at the time the instructions were offered.

11. LIBEL AND SLANDER — Malice — Instructions — Case at Bar. — In an action for libel where the verdict and judgment were in favor of the plaintiff, defendant objected to an instruction given for plaintiff telling the jury that certain circumstances enumerated therein tended to show malice on the part of the defendant.

Held: That there was no error in this.

12. LIBEL AND SLANDER — Malice — Instructions — Publication "not Warranted by the Law." — In an action for libel the court instructed the jury that if in the publication complained of the jury believed that the defendant wilfully inflicted a wrong on the plaintiff, which was "not warranted by the law," then the act of publication was malicious and injurious. Defendant objected to this instruction in that it left to the jury to determine what was warranted by law without telling them what the law was.

Held: That there was no error in the instruction.

13. LIBEL AND SLANDER — Malice — Actual Malice. — Actual malice in the sense that ill will must exist is not necessary even when the occasion is one of qualified privilege. See syllabus 24.

14. EVIDENCE — Admissibility — Objection to Evidence where Similar Evidence has been Admitted without Objection. — It is well settled and obviously a sound general rule that an objection to evidence cannot be availed of by a party who has, at some other time during the trial, voluntarily elicited the same evidence, or has permitted it to be brought out by his adversary without objection.

15. EVIDENCE — Admissibility — Objection to Evidence where Similar Evidence has been Admitted without Objection. — An objection to the admissibility of evidence cannot be sustained where the evidence objected to was but cumulative and only served to corroborate evidence unobjected to and already in the record.

16. LIBEL AND SLANDER — Evidence — Admissibility — Malice — Repetition of the Offense. — In an action for libel evidence is competent to show a repetition of the offense when malice is in issue.

17. LIBEL AND SLANDER — Evidence — Malice — Evidence as to Repetition of the Offense. — Where malice is in issue in an action for libel evidence as to a repetition of the offense was not rendered inadmissible by the fact that the court was of opinion that malice had already been established. The evidence would have been competent if there had been a formal admission of malice in open court.

18. LIBEL AND SLANDER — Wtnesses — Witness Testifying that Publication was Intended to Apply to Plaintiff — Case at Bar. — In the instant case, an action for libel, it was objected that a witness should not have been permitted to testify that in his judgment a placard posted by defendant repeating the libel was intended to apply to plaintiff. Evidence of a like character had already been given without objection. It was competent for the witness to say that there was no man in the town except the plaintiff who fitted the description in the placard, therefore to say that it was intended for plaintiff was but a corollary.

19. LIBEL AND SLANDER — Evidence — Republication of Libel — Case at Bar. — The instant case was an action for libel based upon an advertisement by defendant in a local paper. Plaintiff alleged that the advertisement charged that he was a "shark." Defendant also posted a placard in his window. This placard was but a republication of the advertisement and as such competent evidence, not a verbatim publication, it is true, but that was not necessary. It was published on the same day that the advertisement was, and one must be guileless indeed not to have understood that the same "shark" was referred to in each instance.

20. LIBEL AND SLANDER — Evidence — Admissibility — Case at Bar. — In the instant case the libel declared upon was against the local representative of a "city installment jewelry concern carrying a reputable line of jewelry." Plaintiff had the right to show that he represented such a concern. The libel also stated that the concern employs persons to sell its wares "in nearby town on a commission basis." It was proper to prove that this description fitted plaintiff's employer.

21. LIBEL AND SLANDER — Evidence — Admissibility — Case at Bar. — In an action for libel the libel declared upon was against the local representative of a "city installment jewelry concern carrying a reputable line of jewelry." As showing the character of the business of plaintiff's employer, there could be no objection to evidence which showed its extent, and that it had local representatives in many towns, including plaintiff in the town where the libel was published, who sold for it on a commission basis. There was already evidence in the record to show that plaintiff was the only local man in the town so employed. See 27th syllabus.

ON REHEARING.

22. LIBEL AND SLANDER — Libel Per Se — Charge against Local Representative of Outside Jewelry Concern — Case at Bar. — The instant case was an action for libel. Defendant, a local jeweler, published in a local paper an advertisement criticizing any city installment jewelry concern for employing "local shark" to sell for it. On the same day he posted in his window a placard concerning city jewelers "with their...