Sweeney & Co. v. Brown
| Decision Date | 09 May 1933 |
| Parties | Sweeney & Co. v. Brown et al. |
| Court | United States State Supreme Court — District of Kentucky |
2. Libel and Slander. — Where words are libelous per se, general damages are presumed and need not be averred.
General damages are presumed to have occurred from use of words libelous per se because the words are themselves regarded sufficient evidence of pecuniary loss, and no evidence other than their use is required to show such pecuniary loss.
3. Libel and Slander. — Where words are libelous per quod only, evidence, to sustain recovery of damages, must show pecuniary loss arising from use thereof.
Words belonging to class libelous per quod are such as are susceptible of defamatory meaning as well as innocent one, and may be defamatory by reason of their imputation, by reason of certain intrinsic facts, connoting they were meant to be, and were understood by general public, or those reading them, to have such meaning, and that on receiving them were so construed.
4. Libel and Slander. — Words which cannot possibly bear defamatory meaning are not actionable.
5. Libel and Slander. — Words, to be libelous per se, must tend to disgrace and degrade person, injure him in his business or profession, or hold him up to public hatred or ridicule and cause him to be shunned and avoided.
6. Libel and Slander. — In action for damages resulting from words libelous per se, neither allegation nor proof of malice is necessary.
7. Libel and Slander. — Where writing or publication is not libelous on its face, libelous character must be shown by innuendo setting forth extrinsic facts bringing out covert meaning.
8. Libel and Slander. — Innuendo cannot enlarge sense or effect of words charged to be libelous, or impute meaning not warranted by words themselves, or in connection in which colloquium does not fairly warrant.
9. Libel and Slander. — Office of innuendo is to explain alleged libelous publication in its proper meaning, and not to supply place of colloquium.
10. Libel and Slander. — Words not libelous in themselves cannot be made so by innuendo.
11. Libel and Slander. — Alleged defamatory writing or publication must be construed in its most natural meaning and in sense in which it would be understood by addressee.
12. Libel and Slander. — In determining whether writing or publication is libelous per se, it must be stripped of all innuendo, colloquium, and explanatory circumstances.
13. Libel and Slander. — In determining whether writing or publication is libelous per se, only thought and idea, impression or opinion conveyed to reader can be considered.
14. Libel and Slander. — In determining whether writing or publication is libelous, considering surrounding circumstances advanced by innuendo and averment, inducement and colloquium must be considered as relating to substance of charge.
15. Libel and Slander. — Generally, libel depending on innuendo is per quod, and actionable only where special damages result.
16. Libel and Slander. — Special damages resulting from libel per quod must be alleged with sufficient particularity to enable defendant to meet charge.
17. Libel and Slander. — Allegations of petition setting forth letter, written to holders of insurance policies, making inquiry regarding payment or nonpayment of premiums to plaintiff, an insurance agent, held insufficient to state cause of action for damages for libel.
Petition in action for damages for libel set forth letter written by district agents of insurance company which stated to holders of insurance policies written through plaintiff that premiums on policy had not been paid to insurance company, and requested holders of policies, if they had not already paid premiums to plaintiff, to either make payment direct to office of district agents or return policy for cancellation for nonpayment of premium, and that if premium had been paid to plaintiff to advise district agents of date of payment.
Appeal from Jefferson Circuit Court.
H.M. DENTON for appellant.
FRANK M. DRAKE for appellees.
Affirming.
The decisive question on this appeal is the sufficiency of the petition charging libel, when tested by a demurrer. William T. Sweeney was engaged in general insurance and brokerage business under the firm name of Sweeney & Co., in the city of Louisville, Jefferson county, Ky., where he resided, and Frank H. Brown was engaged in the same kind of business, under the name of Brown & Martin, in the same city, where he also resided.
The Employers' Liability Assurance Corporation of London, England, was a foreign corporation, organized under the laws of England, and Frank H. Brown was acting as its district agent in Kentucky, including the city of Louisville. Brown and Sweeney were competitors in business. Both of them had been engaged in the same business for many years before the cause of this litigation originated. It is charged in the petition that on May 7, 1930, Brown, acting for himself and as the agent of the Employers' Liability Assurance Corporation, mailed to a large number of Sweeney's customers who were carrying insurance with the Employers' Liability Assurance Corporation a circular letter in this form:
In his petition Sweeney interprets this letter as libelous, and asserts it wrongfully states that he had not paid certain premiums on the policies of insurance of the Employers' Liability Assurance Corporation, by its requesting the information it sought of the addressees to whom it was sent; that it is susceptible of the inference and insinuation that he had a contract with the Employers' Liability Assurance Corporation, for the collection and payment of premiums, when in fact he had no contract with it, and was under no legal obligation whatever to collect or pay the premiums to it by reason of any policy of insurance; that the purpose of the letter was to convey to the addressee the impression that he had collected money due the insurance company and did not pay it over. These allegations are followed by further allegations setting out the appearance of Brown before the insurance department of the state of Kentucky and Pulliam as deputy insurance commissioner, and there making certain representations which resulted in the cancellation of his license as agent of the Employers' Liability Assurance Corporation. He avers that, by reason of the appearance of Brown before the insurance commission and the deputy commissioner, and the contents of the letter, his customers ceased to deal with him, and quit business relations for a long period of time thereafter. He charges that the action of Brown and the circulation of the letter were wrongful, wanton, and malicious; that it destroyed his business by causing persons dealing with him to discontinue both their business and the contractual relations, thereby damaging him $40,000. The allegations of the petition must be taken as true on a demurrer thereto, and the question to be determined therefore is one of law.
To sustain his insistance, he cites Globe & Rutgers Fire Ins. Co. v. Firemen's Fund Ins. Co., 97 Miss. 148, 52 So. 454, 29 L.R.A. (N.S.) 869, and notes; Pennsylvania Iron Works Co. v. Henry Voght Machine Co., 139 Ky. 497, 96 S.W. 551, 29 Ky. Law Rep. 861, 8 L.R.A. (N.S.) 1023; Newell on Slander & Libel; Louisville Gas & Electric Co. v. Wulf, 166 Ky. 269, 179 S.W. 232; Wells v. Payne, 141 Ky. 578, 133 S.W. 575; S. M. Burgess & Co. v. Patterson, 139 Ky. 547, 106 S. W. 837, 32 Ky. Law Rep. 624; Sparks v. McCrary, 156 Ala. 382, 47 So. 332, 22 L.R.A. (N.S.) 1224 and notes thereto; Passaic Print Works v. Ely & Walker Dry-Goods Co. (C.C.A.) 105 F. 163, 62 L.R.A. 673.
A cursory examination of the cases cited by Sweeney and a comparison of them with the allegations of the petition are sufficient to show that, except in Louisville Gas & Electric Co. v. Wulf and Passaic Print Works v. Ely & Walker Dry Goods Company, the questions involved are not related to the decisive question presented in this case....
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