Smith Bros. & Co. v. W.C. Agee & Co.

• Decision Date: 30 May 1912
• Court: Alabama Supreme Court
• Parties: SMITH BROS. & CO. v. W. C. AGEE & CO.

59 So. 647

178 Ala. 627

SMITH BROS. & CO. v. W. C. AGEE & CO.

Supreme Court of Alabama

May 30, 1912

Rehearing Denied June 29, 1912.

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action by Smith Brothers & Company against W. C. Agee & Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Simpson Sayre, and Somerville, JJ., dissenting.

As originally brought, the action was by Smith Bros. & Co., a copartnership composed of A. E. Smith and N. C. Smith against Walter C. Agee and W. C. Agee & Co., a copartnership composed of W. C. Agee and E. W. Rucker. The complaint was afterwards amended by eliminating all parties defendant except Walter C. Agee. The fifth count sufficiently appears from the opinion. Plea 3 is as follows: "Defendant W. C Agee says that, if the alleged words were spoken at all by W C. Agee, they were spoken in a meeting of the creditors of S. Hall, or the representatives of such creditors in reference to their business as such creditors, and were spoken in good faith without malice, and believing that they were true, and that at said time W. C. Agee was a member of the firm of Agee & Co., who were creditors of said S. Hall, and said Agee was representing the said firm at said meeting." Grounds of demurrer referred to are as follows: "(9) For that said plea does not admit that said words were published by defendant. (10) For that said plea does not confess and avoid, and is not a plea in bar."

Allen & Bell, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

McCLELLAN J.

Action for damages for slander.

According to the authority of Hatcher v. Branch, Powell & Co., 141 Ala. 410, 37 So. 690, and Greer & Walker v. Liipfert-Scales Co., 156 Ala. 572, 47 So. 307, this action is by the individuals (named in the caption of the complaint) composing the copartnership, and not by the copartnership.

The demurrer, filed August 24, 1909, was, in consequence, not well taken.

The defendants to the action (before amendment) were Walter C. Agee and W. C. Agee & Co., composed of Walter C. Agee and Edmund W. Rucker. Since "slander," differing from libel (see Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 So. 800), is not a tort capable of joint commission by two or more persons, the demurrer, taking the point of misjoinder on that account, was properly sustained. Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 So. 210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90, and authorities therein cited. See, also, 25 Cyc. p. 434; Page v. Citizens' Banking Co., 111 Ga. 73, 36 S.E. 418, 51 L. R. A. 463, 78 Am. St. Rep. 144.

The complaint was amended so as to eliminate all parties defendant except Walter C. Agee.

The fifth count of the amended complaint charged utterance by defendant of these words: "S. Hall is a half-brother of Smith brothers. His money went into the firm of Smith Bros. & Co. He is the company to the firm of Smith Bros. & Co."

It is asserted in this count that the intention of the defendant in uttering these words was to convey, and did convey, the idea that Smith Bros. & Co., composed as aforesaid, and S. Hall, a bankrupt, had concealed, removed, disposed of, and conveyed property belonging to Hall, who was then in an insolvent condition, with the intent to defraud the creditors of Hall; and that said concealment, transfer, conveyance, and disposition of Hall was wickedly, unlawfully, and wrongfully done; and that plaintiffs were untrustworthy, dishonest, and unreliable; and that credit should not be extended to them or confidence placed in them by the public and by those engaged in the sale of goods, by wholesale dealers and by brother merchants.

In Labor Review Publishing Co. v. Galliher, 153 Ala. 370, 45 So. 190, 15 Ann. Cas. 674, it was said: "Many of the textwriters and courts have recognized a distinction between that class of actions for libel where the object of the offending matter was the profession, trade, or business of the plaintiff, and that class where the publication was directed against the individual. 25 Cyc. pp. 326-329, 353-355, and notes. In the former class it has been held that the gist of the action is the injury intentionally inflicted by the publication of the false matter, and that the averment of special damages will state a cause of action; and, in the latter, that in order to sustain the action the words must be susceptible of a meaning defamatory in character. Iron Age Publishing Co. v. Crudup, 85 Ala. 519, 5 So. 332. A consideration of the controverted question as to whether the matter must be defamatory to maintain an action for libel of one in his profession, trade, or business is entirely obviated in this case, since the plaintiff has, by his innuendo, ascribed to the publication a meaning or meanings by which he is bound (Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020, 43 Am. St. Rep. 583), and the correctness of which must be found, if the demurrer was properly overruled. So we are relegated to a construction of the publication to ascertain whether it is susceptible of the defamatory meanings attributed to it. Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788. And, if the matter pleaded is not susceptible of the meaning ascribed, the action must fall. Gaither's Case, supra."

These observances are pertinent to the question of the sufficiency of the fifth count of the complaint as amended. No special damage to the plaintiffs in their business or trade is averred in this count. Newell on Slander & Libel, pp. 849, 850; Starkie on Slander, pp. 193, 202, 203; Townshend on Slander & Libel (4th Ed.) p. 261; 13 Ency. Pl. & Pr. pp. 38, 39.

Are the words quoted from the fifth count susceptible of the meaning ascribed to them, considering them in the light of the circumstances disclosed by the other averments of the count?

In themselves, these words are obviously innocent, harmless. When referred to the financial condition of Hall and to his relationship to the Smiths we are still unable to see how from the words, the defamatory meaning ascribed could be reasonably attributed to them. Viewed in connection with the circumstances alleged, every intendment of the words reasonably consists with honesty, fidelity, trustworthiness, and justified confidence. Hall's money could have found investment in the "company" without semblance of fraud or wrong on his part or on that of the Smiths. So, also, could Hall have been the company in that firm. For aught that appears in the words charged, his financial connection or dealings or relation with the firm might have occurred long before Hall became insolvent, and long before the Smiths knew or had any notice of Hall's financial condition. It is not the office of innuendo to introduce new matter or enlarge the natural meaning of words. Gaither's Case, supra. The meaning ascribed, in count 5, to the words set out therein, is not justified; and hence the count was insufficient. Labor Review Pub. Co. v. Galliher, ...