Press Pub. Co. v. McDonald

• Decision Date: 12 September 1894
• Docket Number: 152.
• Parties: PRESS PUB. CO. v. McDONALD.
• Court: U.S. Court of Appeals — Second Circuit

63 F. 238

PRESS PUB. CO. v. McDONALD.

No. 152.

United States Court of Appeals, Second Circuit.

September 12, 1894

John M Bowers, for plaintiff in error.

Horace E. Deming, for defendant in error.

Before LACOMBE, Circuit Judge, and WHEELER and TOWNSEND, District judges.

LACOMBE Circuit Judge.

The libel complained of was published under the following circumstances: One Tarbell was a regular correspondent of the World newspaper in Cincinnati, Ohio. The rules of the paper required him, when leaving his locality for a day or more, to have some one authorized to receive dispatches for him, and do his work. It was left to him to select the subordinate or substitute thus employed. Tarbell's newspaper work having become too heavy for him to handle by himself, he engaged a young man of twenty, named Gosdorfer, to look after the New York World correspondence, instructing him to send all 'good news' to that paper. On August 17, 1892, the Cincinnati Evening Post, a reputable paper, published in that city, contained an article touching one Evan Smith. Believing that the substance of such article would be acceptable to the World, Gosdorfer condensed it into the following dispatch which, on the same day, he sent over Tarbell's name by the Postal Telegraph Company. As delivered to the telegraph company at its Cincinnati office, it read:

'The World, New York. Two o'ck. * * * Evan Smith, who was confidential man for his brother-in-law, Alexander McDonald the millionaire Southern Ohio manager of the Standard Oil Co. until six months ago, when he strangely disappeared, has been located, living in luxury at Bellmore, a town near Windsor, Canada. McDonald claims that Smith's accounts are straight, but that he is insane, and will be brought to a sanitarium here. D. S. Tarbell.'

To facilitate the receipt of its dispatches, the plaintiff in error had an arrangement with the telegraph company whereby loops were put in between the latterS main office and the World office, and, instead of dispatches from other cities to the telegraph office being transmitted by messenger, they were switched onto these loop wires, and came direct into the World office, where the telegraph company had employes who took down the messages, which were then delivered to boys, who carried them to the telegraph desk, whence they were distributed to the telegraph editors. The function of the telegraph editor is to read over carefully any dispatch received by him, to correct the English, to eliminate anything which he thinks does any injustice to anybody or anything, or which causes a doubt in the mind of the reader as to the accuracy of the dispatch, and to put headlines on. Thereupon the dispatch is sent to the composing room, and in due course is printed in the paper. The 'publisher' of the World testified that the authorized custom in its office is that, unless a dispatch from a distant city 'per se raises in the mind of the telegraph editor a suspicion of its accuracy, then he cannot change the facts; and it is optional with him then to judge of the importance of the dispatch, and withhold it from the composing room or have it set up. ' Where there is nothing on the fact of the dispatch which raises a natural doubt as to its accuracy, it goes to the composing room, with its statement of facts substantially unchanged. The dispatch as published in the World of August 18, 1892, was substantially different from the one sent by Gosdorfer. It reads as follows:

'Cincinnati, O. August 17. McDonald, Southern Ohio manager of the Standard Oil Company until six months ago, when he strangely disappeared, has been located living in luxury at Bellmore, near Windsor, Canada.'

To this there was prefixed the head-line, 'Missing Millionaire McDonald Located.' When the case came on for trial the dispatch as written out by the telegraph employe in the World office could not be found, nor was the plaintiff in error able to show which one of its 10 telegraph editors had received it. There was some evidence tending to show that, as thus written out, it was phrased as subsequently published, not as sent from Cincinnati; and it was the theory of the defense that, there being nothing on its face to raise a suspicion of its accuracy, it was sent to the composing room, in accordance with the authorized custom of the paper. That custom required no effort to be made to verify the accuracy of such dispatches, and no such effort was made in this instance.

It was contended by the plaintiff, and evidence in support of that contention was introduced, that the statements touching Evan Smith in Gosdorfer's original dispatch were themselves untrue, a matter which need not be discussed here, since the falsity of the assertions touching McDonald in the dispatch as published is not disputed.

The plaintiff in error contends:

1. That the court erred in denying the motion to direct a verdict for the defendant, and in leaving it to the jury to find whether the publication was a libel. It is insisted that the words of the alleged libel were not ambiguous, and that the court, as matter of law, should have determined that the article was not actionable. Undoubtedly, when the words used are unambiguous, and admit of but one sense, the question whether or not they are libelous is one of law, which the court must decide. Equally true is it that when the words used are 'ambiguous in their import, or may permit, in their construction, connection, or application, a doubtful or more than one interpretation, and in some sense be defamatory, the question whether they are such is for the jury. ' Woodruff v. Bradstreet Co., 116 N.Y. 217, 22 N.E. 354. And the question here presented is the single one: Was the publication so phrased that, taken as a whole, it would fairly permit an interpretation in some sense defamatory, although its separate statements, taken by themselves, contained no improper suggestions? To this, in our opinion, there can be but one answer. It was not necessary for the plaintiff to aver and prove as a matter of fact that there are many American embezzlers in Canada. Nor was it necessary to aver or prove extrinsic facts in order to show that the words were susceptible of a defamatory construction, as it was in Caldwell v. Raymond, 2 Abb.Pr. 193, where the publication was of a single marriage notice, which could be shown to be defamatory only by proving that the woman named therein was a prostitute. Nor is this a case, as counsel for appellant contends where the doctrine of judicial notice has been extended beyond its well-recognized boundaries. The meaning of words of common speech, of terms which from continuous use have acquired a definite signification, generally, if not universally, known, has always been judicially recognized by the courts. The meaning or signification thus generally accepted may be one which the word or phrase ought not to be saddled with, but, if such word has acquired that meaning in the community, it is the duty of a court to recognize it. Mr. Beecher may not have been a clerical adulterer, but when the Kalamazoo Publishing Company printed of a clergyman, 'Then there was that Iowa Beecher business of his, which beat him out of a station at Grass Lake,' it was left to the 'courts have no right to be ignorant of the meaning of current phrases which everybody else understands. ' Bailey v. Publishing Co., 40 Mich. 256. So here, although it be the fact (as counsel contends) that no more than ten defaulters ever fled to Canada, and although it is no longer a safe refuge for them, yet the statement that a man of great wealth had strangely disappeared, had secreted himself for six months, and was finally found living in luxury at some small Canadian town, was calculated to suggest to the community in which the libel in this case was published the impression that he had been guilty of some offense against the civil or criminal laws, or of immoral or discreditable conduct.

Tested by the rule for which plaintiff in error contends, viz. that words are to be understood in their plain and natural import, according to the ideas they are calculated to convey to those to whom they are addressed, the publication was plainly susceptible of a defamatory interpretation. The jury had no difficulty in reaching that conclusion, nor do we see any error in the statement contained in the opinion on the demurrer, that such would be the first impression upon reading a paragraph like this. That the publication is calculated to produce precisely that impression was quite curiously made manifest by defendant's own proof. The original dispatch, prepared by the World's correspondent in Cincinnati, contains precisely the same statements of strange disappearance, six months' seclusion, discovery living in luxury in Canada,-- all made as to Evan Smith, confidential man for McDonald; and then adds, 'McDonald claims that Smith's accounts are straight. ' Manifestly the writer of this dispatch understood perfectly well that the first part of it would convey the impression that 'Smith's accounts were not straight.' Inasmuch, therefore, as the publication did permit of an interpretation in some sense defamatory as well as of one entirely harmless, as it admitted of such interpretation without proof of any extrinsic facts, but solely because the language in which it was phrased was calculated to convey such an impression to the community where the libel was published and the court sat, and as the plaintiff by innuendo pointed out the former as being the meaning which defendant intended to convey to its readers, it was properly left to the jury to decide whether or not such publication was libelous.

2. Plaintiff in error insists that the court erred in admitting proof of the plaintiff's social standing, the...