189 F. 86 | U.S. Circuit Court for the District of Northern Ohio | 1910
These cases count upon the same publication; one being against the publisher of the newspaper containing the alleged libel, and the other being against the assumed author of the article.
The matter is before the court upon a demurrer to the second amended petition, the grounds of the demurrer being that the second amended petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, and, secondly, that this action was not brought within the time limited for the commencement of such actions as fixed by the statutes of the state of Ohio.
A demurrer for these same reasons was interposed to the first amended petition and overruled as to the second ground and sustained as to the first ground. The situation has not changed with regard to the second ground since the action of the court upon the first amended petition; wherefore, the demurrer will be overruled as to the second ground.
The first ground, as stated, is comprehensive enough to raise the question whether the article published in the “St. Mary’s Leader,” and alleged to have been written by the defendant Heisler, in the case of
The article is headed with the word “GRAFT” in large type, followed by a question mark; contains reflections upon the character of the contract for instruction by correspondence which is being advertised and exploited in the community, depicting the contract as a one-sided and harsh affair which “no sane business man would care to sign,” states that its victims are “unfortunately our best boys and young men in the most straightened circumstances,” who are forced, because of the hardships of the contract, to break it, and then “in their inexperience are quite readily frightened by a petty lawyer who can be hired for such work.”
The article contains instances of the default of young men upon this contract and of .the harsh efforts of the other party thereto, the correspondence school, to enforce its terms, and, in general, belittles the character of the service performed under the contract for which a large charge is made, and concludes with the question:
“Is it a legal us.e of the mails to coerce an inexperienced victim witli the threat to sue under such a contract for the purpose of getting his money for a value never received?”
In thé body of the article is quoted what is alleged to be an actual letter sent by “a little lawyer * * * located at Lima,” threatening the commencement of legal action against the recipient to enforce the payment of the entire balance due upon the contract, and the question is asked whether “every line of this proposition does not spell 'graft’ in big letters,” and the question is raised whether any person but an inexperienced youth or woman would sign such a contract as that put out by the institution under attack.
“Upon principle * * * there is no reason why it should not * * * be for the jury to determine whether or not a publication which in its terms refers to a class or collection of individuals or to their business can be fairly construed to mean one or more particular individuals of the class referred to” — citing authorities.
_ As we have seen in the case bet ore us, the. present pleading distinctly avers that this article was intentionally directed at the plaintiff and was so commonly understood in the community.
Counsel are also referred to Mauk v. Brundage, 68 Ohio St. 89, 67 N. E. 152, 62 L. R. A. 477.
“In an action for a libel or slander it shall be sufficient to state generally that the defamatory matter was published or spoken of the plaintiff.”
The second amended petition is, therefore, sufficient under the Ohio practice, which, of course, governs in this instance.