Simons v. Burnham
| Decision Date | 25 September 1894 |
| Citation | 60 N.W. 476,102 Mich. 189 |
| Court | Michigan Supreme Court |
| Parties | SIMONS v. BURNHAM. |
Error to circuit court, Ingham county; Rollin H. Person, Judge.
Action by Benjamin F. Simons against David Burnham for libel. There was judgment for plaintiff, and defendant brings error. Affirmed.
T. E. Barkworth and Arthur D. Prosser, for appellant.
Smith Lee & Day, for appellee.
The parties to this action are rival merchants in the city of Lansing. It is alleged by the plaintiff that in October 1889, the defendant sent to various firms in other cities with whom the plaintiff had business relations, clippings from a Lansing paper, showing real-estate transfers including between ink lines, placed thereby himself, the following: "Benjamin F. Simons to Adeline A. Simons, lots 1, 2, and 3, block 150, Lansing, $5,000." This clipping was attached to a half sheet of paper, on which was written the following, viz. (after the above quotation from the clipping, the words) "his wife," and: "The real estate transferred and marked in slip is estimated to be worth at least $10,000; other real estate heavily mortgaged; reported to be heavily indebted to three or four banks, for borrowed money, at a high rate of interest, say 8 or 10 per cent. per annum, and payable every 60 days." In one instance it is claimed that to a clipping of the kind mentioned, inclosed by ink lines as aforesaid, the following pencil writing was appended, viz.: "In time of peace, prepare for war." The declaration contained several counts charging that communications similar to that first above described were sent to different persons, and one count upon the last-described writing; each count containing by way of inducement the statement that the plaintiff was a merchant, dependent for his living upon such business; that he had always conducted himself with fairness and punctuality towards his creditors, ad until then had never been suspected of bankruptcy, insolvency, or any fraudulent intention, and had always been, and then was, in good circumstances, credit, and esteem; knowing which, the defendant, with the intention of injuring the plaintiff in his good business name and credit, and in his business, and to cause him to be reputed as worthy of no credit, and to injure him and his said credit with the several persons to whom said communications were sent, published the writings counted upon. By way of innuendo, each count alleged the following, in substance, viz.: Thereby the said defendant, by the said clipping and writing, letter partly written and partly printed, as aforesaid, meaning and intending to charge and cause the said (person to whom the same was sent) to understand, believe, and be informed that the said plaintiff was fraudulently conveying his property to his wife, and was insolvent, and in failing circumstances, and unreliable, and unworthy of credit. The counts respectively allege special damage, by stating that the creditors of plaintiff and others, and especially those to whom the communications were sent (naming them), have refused to have further dealings with the plaintiff, or to give him further credit, and that he has, by reason thereof, been prevented from obtaining credit, and from replenishing his stock, and maintaining his trade, which has suffered therefrom, to his loss of profits, and injury.
It is contended by the defendant's counsel that the words declared upon are not actionable per se; that they were declared upon without any inducement which would make the innuendo applicable, and that the natural meaning of the words must therefore govern as to the sense in which they were published; but that, even if it were competent for the jury to ascribe a meaning different from the natural meaning of the words, it was unnecessary for a plea of justification to be broader than the charge in the declaration. The words in the several counts, standing alone, are unambiguous, and must therefore be construed in their ordinary sense, in the light of such allegations of the circumstances surrounding the transaction as the declaration sets forth. Most of this language admits of but one meaning when so construed. It is that this plaintiff has conveyed $10,000 to his wife for $5,000; that he has mortgaged other property to the extent of $10,000; and that he is heavily indebted to banks, upon which indebtedness he is paying a high rate of interest mentioned. If this has no significance further than a personal one, it is not libelous per se. If, however, it can be said to apply to the business of the plaintiff, it may be. The declaration, by way of inducement, states that plaintiff was in the habit of purchasing goods, with which to maintain his stock, of certain firms, naming them; that defendant, with the intention and for the purpose of injuring his credit with, and preventing his purchase of goods from, said firms upon credit, made certain statements concerning his indebtedness, and incumbrances upon his property, and the transfer of property to his wife upon an ostensible consideration of one-half its value. The innuendo charges defendant with meaning that plaintiff was fraudulently disposing of his property, was in failing circumstances, and unworthy of credit. Counsel for defendant assert that this language is not libelous per se, and it is possible that, standing alone, it might not be, as in that case it might have to be construe as written concerning the person merely; and there is nothing in the act of conveying property to a wife, with or without consideration, or in securing creditors, or borrowing money at a lawful rate of interest, that can be said to be reprehensible or disgraceful, or that necessarily tends to beget ridicule or contempt in the sense essential to a libel. But the declaration charges this publication in connection with other facts, which, if true, authorize the conclusion that it was made in connection with the business of the plaintiff. It has been held that it is not actionable to say of traders that they had executed a chattel mortgage Newbold v. Bradstreet, 57 Md. 38. But those familiar with mercantile affairs, or the litigation which they beget, understand that the filing of mortgages, conveyance of property to relatives, and large lines of credit at banks invariably provoke distrust and caution, and usually cause a loss of credit, and legal proceedings to collect accounts. So well understood is this that we feel justified in holding that a false statement of the kind set up in this declaration would necessarily cause a loss of credit, and therefore would be actionable per se when applied to one alleged to be a trader, in the habit of purchasing upon credit. A case very similar to this will be found in Newell v. How, 31 Minn. 235, 17 N.W. 383, where the defendant reported of the plaintiff, to his correspondent as follows, viz.: This was held libelous per se, within the rule that those callings in which, ordinarily, credit is essential to their successful prosecution, language which imputes to one in any such calling a want of credit or responsibility is actionable per se. Read v. Hudson, 1 Ld. Raym. 610; Davis v. Lewis, 7 Term. R. 17; Dobson v. Thornistone, 3 Mod. 112; Chapman v. Lamphire, Id. 155; Sewall v. Catlin, 3 Wend. 291; Ostrom v. Calkins, 5 Wend. 263; Mott v. Comstock, 7 Cow. 654; Lewis v. Hawley, 2 Day, 495; Whittington v. Gladwin, 5 Barn. & C. 180; Southam v. Allen, T. Raym. 231; Phillips v. Hoefer, 1 Pa. St. 62.
But this is not the end of the question in this case. Plaintiff ascribed a certain meaning to the words used,-beyond their ordinary import,-which he sets forth in the innuendo, i. e substantially a design to defeat or defraud his creditors by conveying property to his wife, etc., and that he was unworthy of credit, and in failing circumstances. The words used are not in themselves ambiguous, and, unless they are to be taken in some other than their ordinary sense, they cannot legitimately be construed to express the meaning alleged in the innuendo. To ascertain this, we must examine the facts alleged in the declaration, and see if these words, read in the light of such facts, are susceptible of the construction claimed. These circumstances have been detailed as describing plaintiff's business and the fact of his dealing upon credit with the persons to whom the information was sent, to injure which, and to cause the repute and credit of plaintiff and his said business to be injured and degraded, the writing was published. The declaration also alleges that it had the intended effect. We can understand how words may be used and understood in a different, and even opposite, sense from what they naturally and ordinarily import, as where used ironically, or in the nature of slang, or as a quotation having a well-understood significance, or where they are used in cipher; but in all such cases it is necessary that the declaration should allege facts which, if proved, will enable a court to say that these words, interpreted in the light of them, may reasonably be held to bear the construction claimed, leaving to the jury the truth or falsity of the allegation upon which the alleged meaning depends, as well as the question of the meaning. It is not enough for the pleader to allege that the language meant a certain thing. The innuendo cannot enlarge the language...
To continue reading
Request your trial