134 Ky. 424 | Ky. Ct. App. | 1909
Opinion of the court bl
— Reversing.
The Foster-Milburn Company is a corporation with its principal office at Buffalo, N. Y. Among
“ ‘Foster-Milburn Co., Buffalo, New York. Gentlemen: — I join in endorsing Doan’s Kidney Pills which were recommended to me a few months ago when I was feeling miserable. Had severe pains in the back, was restless and languid. A few boxes of pills effectually routed the ailment and I am glad to acknowledge the benefit I have derived. Yours truly (facsimile reduced) J. P. Chinn.’ ” J. P. Chinn brought this suit against the Foster-Milburn Company charging that he had not written or signed the letter, that the publication was without his authority and charging that it had brought him into ridicule and greatly mortified him, and otherwise damaged him in the sum of $25,000. The defendant filed an answer traversing the allegations of the petition after a motion to quash the process had been overruled. A trial was had before a jury, which resulted in a verdict for the plaintiff for $2,500. The court entered judgment on the verdict, and the defendant appeals.
In Bradstreet Co. v. dill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 113 Am. St. Rep. 768, Grill sued the Bradstreet Company for a report published concerning him by it as a commercial agency in which he was reported “in blank.” The court held that what the words “in blank” meant according to the key furnished by the defendant to its subscribers might be shown, but that it was improper to show what effect such a report would have upon plaintiff’s' standing-in commercial circles. The court said: “It was only the opinion of the witnesses about a matter that the jury were capable of judging and which it was their duty to determine. If the rating meant that the plaintiff had no credit and no capital, and such rating was false, it was libelous, and actionable, per se, and the jury should have been left to estimate its effect without the influence of the opinions of witnesses, however competent to judge of such matters. Townsend on Slander and Libel, 297. If the plaintiff suffered special damage by loss of credit,, the injury and the cause of it were susceptible of proof, direct proof by
In McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 47 N. W. 671, 22 Am. St. Rep. 673, similar evidence was held incompetent. The court said: ‘ ‘ The rules of pleading are founded upon reason and fairness. The issue in ordinary lawsuits is limited. The parties are more or less familiar with the transaction involved, and the defendant may fairly be presumed to have some knowledge of. the testimony against him, and what witnesses he can produce to meet it. In a libel suit, under an allegation of general damages only, the issue is: What damages has the plaintiff suffered generally in the community where he is known by the publication of the libelous article, and not what he had suffered in individual instances, where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover damages, he must allege them. No other rule would be fair and reasonable.”
The plaintiff was not a doctor. He did not allege any special damages. If special damages have'beeif" sustained by reason of a libel, as if the plaintiff’s business has been injured or other loss suffered by reason of it, such matters should be specially pleaded. The proof referred to did not show that the plaintiff had suffered special damages. It was simply the opinion of witnesses as to what doctors as a class would think. This is not a question of expert testimony. The jury, when the facts are shown, can judge of this as intelligently as the witnesses who were in
In Humphrey v. Miller, 19 E. C. L. 250, a circular was sent out written by the secretary of a society for the protection of the trade which' imputed certain specific facts to the plaintiff. It was held that a witness could not be asked what he understood by finding a persons’s name in such a circular. In the authorities a bbel is defined as a publication subjecting the plaintiff to “public hatred, contempt, obliquy, or ridicule. ’ ’ 25 Cyc. 243, 244 and notes; 18 Am. & Eng. Encyc. 861; Cooley on Torts, side pages 240-241; Bishop on Noncontract Law, Sec. 280, and note. Where other words are used, they mean the same. Thus in Hilliard on Torts, the language is this: “A publication is a libel which tends to injure one’s reputation in the common estimation of mankind, to throw contumely or reflect shame and disgrace upon him, or hold him up as an object of hatred, scorn, ridicule and contempt, although it imputes no crime liable to be punished with infamy.” The gist of an action for libel is the injury to the character. In Stevens v. Commonwealth, 124 Ky. 32, 98 S. W. 284, 30 Ky. Law Rep. 290, it was held that the reputation of the decedent among peace officers could not be
It is earnestly insisted for the defendant that the publication is not actionable. There is an important difference between 'verbal slander and a written or printed publication. Words verbally spoken are not actionable per se ordinarily, unless they impute a mme[ biWwrdV'which are written or printed are actionable when they subject the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances or the public. How far the publication in question would subject a person to ridicule or contempt or make him odious is a question for the jurw/While there is some conflict in the authorities,Wejconcur with those holding that a person is entitled to the right of privacy as to his picture, and that the publication of the picture of a person without his consent, as a part of an adye¥tise«~_ menLfor the purpose of exploiting the publisher’s Tmsiness, is a violation of the right of privacy, ancTentitles him to recover without proof of special damages See Pavesich v. New England Life Insurance Company, 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Am. & Eng. Ann Cas. 561, and notes. It is a fraud on the public to publish indorsements of public men in publications of this character which areAiqf“gehuin^. A man has the right to complain when he is published in a directory having a circulation of 8,000,000 copies, as indorsing a patent medicine he has never seen. JTo publish with the forged letter his picture and a sketch of him is to give weight to the letter. The defendant did not publish the letter as it was written when sent to it by its
The court did not err in refusing to give the instructions asked by the defendant on the trial. There was no substantial error in the instructions which the court gave the jury; but on another trial the court will conform instruction No. 1 to what was said in Riley v. Lee in defining libel. The court will also instruct the jury that if the defendant published.ihe Tetffer'TnAoceñtly and in goocrfaith, believing it to be genuine, they may consider this in mitigation of damages, and give it such weight as they think proper.
We have not deemed it necessary to determine whether the court properly overruled the motion to quash the process, as the appeal enters the defendant’s appearance to the case, and. it will be before the court on the return of the action to the circuit court in any event. L. & N. R. R. Co. et al. v. S. D. Chestnut & Bro., 115 Ky. 43, 72 S. W. 351, 24 Ky. Law Rep. 1846, and cases cited. The rule is one generally recognized. It is thus stated in 3 Cyc. 511, where a number of authorities are given: “If the appeal is to a reviewing court it is ¿ general appearance in the sense that on reversal and remand to the trial court defendant is in court for the purpose of further
On another trial the court will confine the witnesses to the facts they know, excluding all hearsay testimony except on those matters where hearsay is admissible. Judgment is reversed and cause remanded for a new trial.