DRAPER
Presiding Judge.
Action
by appellee against appellant for libel. Verdict and judgment
for $35,000. Appellant assigns error in overruling its motion
for new trial.
The
appellee contends the appellant's briefs so contravene
the rules of this court that no question is presented. The
construction of appellant's briefs is such that reference
to any one brief in this case requires constant and laborious
reference to each of four others. We nevertheless feel that
appellant has made a good-faith effort to present the matter
according to the rules governing appellate procedure, and we
therefore consider the case on its merits.
The parties, both Indiana corporations, were
competitors in the manufacture and sale of bus bodies
throughout the United States. Appellant distributed its
product through seven independent regional administrations,
who in turn distributed to dealers and others through about
fifty distributors and sixty-five distribution points, this
system covering the entire field in which the parties were in
competition. On the dates therein indicated appellant wrote
and distributed to its regional administrators the following
letters:
'The Wayne Works
'Since 1868
'Richmond, Ind., U. S. A.
'Regional Letter No. 46
June 8, 1940
'Inter Office Correspondence
'To: All Regional Administrators
'Subject: Hicks' Manufacturing Difficulties
'For more than a month we have been hearing all sorts of
rumors regarding the difficulties of the Hicks Company at
Lebanon. Information has reached us that during the past
month there have never been more than eight or ten men in the
plant, and these have been more or less on maintenance. It is
our understanding that they have not been in production for
at least that length of time and that they are not in
production at the present time.
'We are told that their difficulties have arisen from
controversies they have had in connection with the wages and
hours act, as well as some labor trouble. They have had an
election which was supervised by the National Labor Relations
Board, but even following this election (about two
weeks ago) production has not been resumed.
'It is our understanding that no commitments have been
made for materials for the manufacture of buses for 1940;
that no literature covering 1940 equipment has been prepared,
and that the only thing that has been accomplished is the
manufacture of two demonstrators and the issuance of a price
schedule.
'We have had no definite confirmation of the
information given above. It has been
received here in a variety of ways and over a considerable
period. All of these rumors and reports are in agreement as
to statements above.
'We felt that this was information that might readily
affect the interests of your distributors, and, accordingly,
we pass it on to you for your further use and distribution as
you see fit. You will appreciate that we would prefer not
issuing a general letter regarding this. You, however, are at
liberty to use it in any manner that may benefit you or your
field organization.
'Cordially yours,
'Wayne Works,
'J. W. Gayle,
Sales Manager.'
'JWGayle:ee
'The Wayne Works
'Since 1868
'Richmond, Ind., U. S. A.
'Regional Letter No. 47
June 19, 1940
'Inter Office Correspondence
'To: All Regional Administrators
'Subject: Status of Hicks Body Company
'Ed Herrmann, of Indianapolis, has very kindly given me a
report on the Hicks Body Company as of last Sunday afternoon.
I quote from his letter as follows:
"After learning last week that Hicks had resumed
operations, I drove over to Lebanon Sunday afternoon and did
all the snooping I could.
"I counted 54 International Trucks in the parking lot
waiting for body installations. Note, please, I say
International. There is not a Ford, Chevrolet, Dodge or
anything else on the place. According to the four Hicks men
who are working in our plant, Earl Hicks, in an attempt to
resume operations, is advising his shop men that he has an
order from International for 500 bodies (no doubt subject to
a lot of discounting) for delivery to Texas. These chassis
may be part of such an order. I could not get close enough to
them to read the tags. I might suggest that
you have Phil and Jim Hudson check into this, because from
what I observe Hicks will be a long time getting these jobs
completed. I did not see any finished assembled bodies at
either of his plants, and it seems to be a foregone
conclusion that Hicks will get nowhere this year.
"I was informed by a local source in Lebanon that Hicks
succeeded in putting 12 men back on the job last week. I was
told that two trailer loads of sheet steel were in Lebanon
held for delivery until cash to cover the C.O.D. terms was
produced. I can well understand that his vendors would place
him on a C.O.D. basis, because his funds will not permit him
to meet a 'shut down' situation very long.
"I noticed the large press delivered to Lebanon last
fall is still outdoors in the yard and has never been set up
for operation. All in all, it's a sad picture for Hicks.
"One more thing, June, I was advised by a filling
station attendant across the road from Hicks Plant No. 2 that
Bishop & Bishop, from Ohio (he could not recall the
town), had taken delivery Saturday on one Hicks job. This
dealer has an order with Hicks for five, and he was given no
assurance that he would get more than one. Sorry I could not
get the town or the make of chassis, but maybe Dick Stanley
or one of the other Ohio distributors can run this down and
resurrect the deal for Wayne.
"If I get any further news I will advise you
promptly.'
'All in all, it looks as though the Hicks Company would
have an extremely difficult time in developing any sales
volume during the current year. So far as we can learn, they
do not have any literature issued. Price lists have been
released for several months. The literature itself has not
been in evidence--at least, we haven't received any
copies.
'If they are now beginning to start their manufacturing
program, we feel it is utterly impossible for them to
build--even at their fastest manufacturing
rate--as much as a fraction of the number manufactured last
year. It doesn't seem humanly possible that they could
start production at this late time and accomplish very much.
If so, that means that you and your distributors have the
opportunity for an even closer cooperation with International
and that you further have an even greater potential
for bus sales that will be well worth your careful and
aggressive cultivation.
'Please do not quote this letter verbatim, although this
information contained in it is at your disposal for
distribution to the distributors in your region.
'As further reports are received, we will advise you.
'Cordially yours,
'Wayne Works,
'J. W. Gayle,
Sales Manager.'
'J.W.Gayle:ee
It is
alleged that these letters were written and published with
the intent and design that they should be repeated and
circulated, and that said letters and their contents were
circulated by said regional administrators, their agents,
representatives and employees to various named persons at
stated times and in certain portions of the United States,
'and to many and divers other persons, boards and
prospective purchasers not at this time known with certainty
to plaintiff but known to the defendant and, therefore, not
alleged. * * * That by reason of such circulation and
publication by the defendant the contents of said letters
became the subject of rumor and trade-talk injurious to the
plaintiff in the trade throughout the United States of
America, * * *. That said publication irreparably damaged the
credit, business reputation, trade, custom and business of
the plaintiff throughout the United States of America * *
*'. That each of the statements contained in said letters
were false and injurious in and of
themselves to said appellee and its business reputation,
trade, credit, custom and business, and the appellee prayed
for a recovery of general damages, no specific damages being
alleged.
The
evidence, including the letters themselves, shows they were
written and mailed with the intention that their contents
should be further circulated. The financial standing of the
appellee was in fact good. It was not in financial
difficulties. It had never actually suspended operation of
its plant. It had made its commitments for materials for
further production, had obtained its literature for 1940 in
April, 1940, which was somewhat later than usual, and was
able to and did fill all of the orders received by it in that
year.
The
letters complained of, imputing as they do that this
corporate appellee was in serious financial difficulties
lacked credit, had practically suspended operations, was out
of production, had made no commitments for materials for
further production and would be unable to fill its orders
were, to the extent that they were false, libelous per se,
and will support an action for libel without allegation or
proof of special damage. Maytag Co. v. Meadows Mfg. Co.,
7 Cir., 1931, 45 F.2d 299; N. Y. Soc., etc., v.
MacFadden Publications et al., 1932, 260 N.Y. 167, 183
N.E. 284, 86 A.L.R. 440. The injurious character of language
libelous per se is a fact of common knowledge of which the
courts take judicial notice, and general damages are presumed
to result from their publication. Tracy v. Hacket,
1898, 19 Ind.App. 133, 49 N.E. 185, 65 Am.St.Rep....
