*3
MATHEWS,
Before WILBUR and
Judges,
NETERER,
Circuit
District
Judge.
NETERER,
Judge.
District
appellee,
on December
Superior
filed a
for libel in the
California,
Court
An-
State of
Los
County,
geles
appellant;
against the
a New
corporation,
York
alleges
which she
she manufactured and sold a
furniture
polish preparation
automobile
under
name of “French Veneer” and had estab-
profitable
ap-
lished a
business.
That
pellant manufactured and
furniture
sold
polish under
of “Liquid
the name
Veneer.”
date,
prior
a long
“That for
time
to this
continuously
[appellant]
the defendant
systematically
purpose
and for
injuring
reputation
and the business
plaintiff [appellee],
caus-
conducted
be mailed to
letters
various customers
plaintiff
purpose
destroy-
of this
ing the business relations
be-
that existed
customers,
tween
and her
and that
purpose
lettérs were written for
wilfully
maliciously injuring
good name of the
and for
destroying
the business
further
plaintiff has established in the State
elsewhere,
with-
and that
of Califbrnia
defendant,
year
past the
last
fur-
in one
plan
injure
of its
and scheme to
therance
destroy
plaintiff’s good
name and
wilfully
maliciously
reputation did
pub-
publish
cause
compose,
to be
WILBUR,
dissenting.
Judge,
Circuit
to Young’s Mar-
lished a letter addressed
.
California,
Angeles,
at Los
Judge,
MATHEWS,
dissenting
Circuit
ket
part
letter reads as follows:
“ ‘The
Corporation
manufacturer
if
“‘Liquid Veneer
“
desirous of building
rightfully
a business
Canada.
‘London, England Bridgburg,
—
“
own,
easily
many
his
could
choose
names
‘Manufacturers
taking part
“
without
belonging
of a name
Specialties
Automotive
‘Household
else,
spent
someone
who has
fortune in
Y.,
A.
S.
“‘Buffalo,
U.
N.
building up their business under that name.
“
2, 1931.
‘June
“
object
‘His
adopting
name
“
Market,
‘Young’s
trying
“French Veneer”
is obvious. He
“
Street,
'7th
trade
our rights.
We have evidence
“
Angeles, California.
‘Los
purchasing
now of the
housewife
*4
innocent
“
Manager
General
‘Atten.
“French
using
Veneer” which she had been
“ ‘Gentlemen:
years.
for
This
finding
housewife on
that
“
reports your selling
inspector
‘Our
purchased
she had
wrong
Veneer re-
product
offering
called
for sale a
May
company
turned it to
and receiv-
Veneer,”
you
this is to inform
“French
proper genuine “Liquid
ed the
Veneer.”
“
attorneys
this is
have
us
that our
advised
your
‘We will
prompt reply,
await
“Liq-
trademark
flagrant
of our
a
violation
remain, meanwhile,
“ ‘
common law
well
our
uid
as
as
Veneer”
very truly,
Yours
“
rights.
‘Liquid
Corporation
Veneer
“
recently
product
‘We
this
on
Cabana,
found
“‘Martin J.“
”
Company.
May
We
ex-
sale at
have
‘Vice President.’
plained
position
our
false, malicious,
That
the letter was
product
they
sale
have taken the
off
defamatory,
defendant
intend-
they
longer
promised
will
have
that
ed to and did convey
meaning
that the
know,
you
or
can
perhaps
as-
it. You
sell
plaintiff
upon
infringed
right
had
a
that the
any patent attorney,
from
that the
certain
exclusively possessed
defendant was
of, and
by
infringing product
a dealer or
sale of an
plaintiff
that
wrongfully
and un-
upon
States
jobber,
in the United
is looked
lawfully selling
product
a
Young’s
said
infringing,
contributory
as
District Court
Market and other numerous customers of
equally liable
jobber
or
is
and such dealer
plaintiff,
plaintiff
was irre-
product.
manufacturer of
with the
sponsible,
financially
otherwise,
both
“
or
difficulty
had more
'We have
less
person
was not
fit
she
to do busi-
people
with these
who manufacture
with,
ness
and that
reason of said false
Veneer,”
so-called “French
have tried
aforementioned,
and malicious letters
purchase
against them
evidence
individual-
Market,
and other numerous cus-
place
ly,
they
from one
moved around
but
plaintiff,
carry
tomers of the
refused
identity
another,
we
denied their
when
plaintiff
do
with
or
up
them and after investi-
did
with
catch
reason thereof
and her business
condi-
gating them found their
financial
damaged.
up-
was had
have
Service
litigation.
not warrant
tion such as would
by service,
provided
on the defendant
as
“
matter, however,
is
different
upon
‘It
corpora-
law for service
foreign
responsible
tions,
we find a
upon
Secretary
where
house like
of State of Cal-
prod-
yourselves, handling an infringing
ifornia. The cause was removed to the
uct,
the end of a law
because at
suit we
diversity
United States District Court on
citizenship.
able
well
will be
to collect
The defendant
thereafter
permanent injunction restrain-
specially
as secure a
appeared
quash
and moved to
ing
again selling
you
ever
or offer-
ground
on the
service
was not
goods.
infringing
provisions
for sale said
that the
shown
section 406a
“
Code of
for
Civil
California
service
‘When
you
a manufacturer
induces
upon
corporations
foreign
had been com-
product,
infringing
his
he
selling
sell
plied
matter
with. This
of service and
you
lawsuit. We are not in
business to
jurisdiction of the court was raised sev-
people,
prefer
much
doing
sue
we
them a
proce-
during
times
the" course of the
eral
favor,
you
but
will
only
see that we court,
this case. The
after
dure in
hear-
endeavoring
protect
property,
our
ing, denied the motion.
you
anyone
position.
do if in our
or
would
request
you
compr.ehcnded,
We therefore
ly
immediate-
errors are
within
infringing
Noncompliance
charge
(a)
the sale
of:
discontinue
the
requirements
with
us
of section
prompt-
and advise
that effect
406a
Civil
ly.
for
service
for-
California
Code
eign corporations;
complaint
kept
stock
(b) that the
Invoices in evi-
California.
action;
preju-
shipped
(c)
a cause of
dence show
does not state
that merchandise
judge; (d) er-
dicial remarks of
trial
from the warehouse in San Francisco via
admitting
jury; (e)
Company;
ror
evi-
charging
Steamship
Pacific
orders were
Waddingham and oth-
dence of
er
filled from a fixed
of merchandise in
the witness
stock
witnesses;
(f)
thereafter
the verdict
San Francisco.
answered,
defendant
* *
“wholly
“Not
denying many allegations of
erroneous
supported
or
by the
of information
evidence.”
lack
belief,
denying specifi-
or
knowledge
supra
The law
challenged,
but
en-
cally
(appellee)
only noncompliance
nonapplicability
or
preparation
gaged in the business
thereof for the
reason that
did
sale,
manufacture or
etc. of “French Ve-
not do business in the state. Section 406a
ap-
alleges that
neer.” “Admits and
provides
California Civil Code
that a for-
proximately
(2) years
preceding
next
two
corporation
eign
doing business in the
*
June,
plain-
the month
state
a writing
must
filed with
Sec-
pol-
liquid
tiff sold and
ishing
to be sold a
caused
retary
agent upon
person
name some
State
as its
*5
designated and called
material
served,
may
process
whom
be
”
pos-
‘French Veneer.’ Denies -that she
failure,
and on
in
summons
civil actions
profitable
large
and
sessed
or
business
upon
Secretary
be
of
served
that ren-
of a nature
that her business was
State,
State,
Secretary of
and the
when
Denies that
profit.
dered her a substantial
duplicate copies
served with
summons
of
continuously or
appellant
has
defendant
payment
and
and
to him
aof
be
systematically,
all,
letters to
or at
caused
named,
immediately notify
fee
shall
such
plaintiff for
customers
mailed to various
of
corporation by
prepaid,
telegraph, charges
plaintiff’s
injuring
business
of
dup-
of the
and forward
once the
service
at
plaintiff
or the relations of
tomers,
with her cus-
copies
complaint by
licate
of
and
summons
any
denies
mailed
registered mail,
letters
postage prepaid; and fur-
persons
provides
by it
customers of
ther
“the
of the
to
who were
certificate
seal,
Secretary
State,
plaintiff
purpose of
his
were mailed for the
of
under
official
wilfully
competent
of
wrongfully injuring
such service-shall be
and suffi-
or
proof
of
Secretary
cient
thereof.” The
destroying
name of
or
her busi-
in
that he made
State
this case certified
any
of
ness. Denies that in furtherance
certified,
such
the
“That
plaintiff’s
service
further
injui'e
plan 'or
to
scheme
officedo
contain the
records of this
reputation
or
good name
to
it caused
corporation,
name- of
or
said defendant
quot-
mailed the
written and
letter above
show
location of his offices.”
ed herein. Admits that “it wrote and
concerning
infringe-
mailed a
appears by
appellant’s
It
motion to
trademark, ‘Liquid Veneer,’
ment of its
ad-
quash
support,
and affidavits in
Market,
spe-
Young’s
dressed to
but denies
qualify
defendant never did
to do-business
cifically
letter,
writing
in
or
designated
person
state.
letter,
prompted by
any
any
it
malice
writing
Secretary
filed with
of State
plaintiff, or desire or intent to in-
upon
process may
towards
whom
be served at be
jure her.” Admits “that the letter mailed
1, 1932,
March
fore
after
date
conveyed
it
Market
process on
Secretary
service' of
name French
meaning that the use of the
legal
The service was
and the
State.
polishing
applied
liquid
to a
jurisdiction
Veneer
was established if the
court’s
appellant
infringement of
was an
defend-
material
doing business
the State
”
trade-mark,
Veneer,’
‘Liquid
Compare
ant’s
Prod
California.
Certain-teed
Corp. Wallinger (C.C.A.4)
allegations
ucts
v.
89 F.
denies all
with relation
427,
6,
(2d)
April
decided
1937.”
malice or intent of malice or destruc-
plaintiff’s
reputa-
of the
tion
There can be no doubt that the defend-
Denies that
has been dam-
tion.
ant,
.prior
time
at the
service
aged in
sum because or on account
by serving
Secretary
State,
ship-
it
publication complained
of. And
ped merchandise in bulk and warehoused
separate
files two
defendant
and affirma-
present
in San Francisco
and future
defenses,
orders;
alleging
tive
in substance that for
filling
use in
its
that from
San
thirty years
shipments
period
preceding
about
Francisco stock
were made to
June,
Angeles
given
to fill
month of
defendant has
Los
orders and that
held
imrnediately
orders
filled from the and continued
use
trade-mark and
were
by and
duly
By
issued
regularly
motion
trade-name
for a
new trial and mo-
Unit-
dismiss,
registered in the Patent Office
tion to
made after verdict and
thereof, “its
pursuant
judgment,
ed
to the laws
jurisdictional question
States
was
mo-
again
being
and,
opposition
trade-name
said trade-mark and
raised
Veneer,’
words, ‘Liquid
tion
consisting
dismiss, appellee
filed the affidavits
during
witnesses,
(John
under which defendant had
four
two of whom
manufactured,
Brash and
said time
sold
distribut-
W. Howell) had previously
J.
*
liquid polishing
support
ed a
material
affidavits in
of appellant’s
throughout
quash
and other motion
the United
States
service of summons. One
superintendent
under said trade-mark and
was the
trade-
countries
name, ‘Liquid
name,
and the other the
”
secretary
Veneer.’ That said trade-
company
warehouse
where
Veneer,”
very
“Liquid
“a
was and
warehoused its stock.
In
word,
defendant,
parties,
oath',
substance
these
say
valuable asset of
appellant during
im-
‘veneer’
a material and
“all
the
May
of said time” until
portant
part
said name.”
designating
maintained an account with
years
1931, the
prior
June,
That for several
warehouse company (Lawrence Ware-
house Company,
intermittently
“French
had
now
Veneer”
Haslett Warehouse
Company)
and from
to time sold
time
to various re-
maintained therewith a
stock
California,
merchandise;
tail
merchants
labeled
that on
the account and
as “French Veneer.” That the use of said
merchandise was transfer-
red to
Co.,
G. A. Hosmer
infringement
defendant’s
name was an
where it remain-
April
trade-name,
until
when “G.
registered trade-mark and
A. Hos-
*6
mer Co. instructed said
Haslett
“Liquid
That
use of
Warehouse
Veneer.”
ship
Co.
ucts
tendency to,
to
all of its Liquid
prod-
'had
Veneer
name “French Veneer”
did,
public
be-
merchandise out of
purchasing
and
lead the
state.” That
the stock was stored with the
of-
warehouse
lieve that
so labeled
company until orders were received from
“Liquid
ferred under said
was
Ve-
name
appellant or Hosmer Company,
defendant, upon
who would
neer.”
ascertain-
That
request the
company
warehouse
facts,
deliver
complained
plaintiff
her
various amounts from said stock to
infringement
local
of its
and trade-
trade-mark
who
customers
were
;
on
list,
and disclaimed re-
the accredited
name that she denied
and the
company
warehouse
marketing
sponsibility
origin
for the
would advise
appellant
or Hosmer
delivery.
That
on
product,
of said
“French Veneer.”
A certain
amount
was
against her
merchandise
al-
defendant had no recourse
ways kept on hand. It is said merchandise
knowledge
the “light
at law
in
* * *
shipped
was
quantities
“carload
aforesaid,
the facts
without malice or
which was stored
sold,
until
which took
injure
purpose
plaintiff,
but with
from
years.”
one month to two
The testi-
protecting
faith
itself
mony of
given
these affiants
pursuant
was
by infringement
injury
from loss
of its
subpoenas,
subpoena
duces tecum.
trade-name, trade-mark and
for the
Upon hearing appellant
permission
asked
purpose of avoiding
necessity
for tak-
to withdraw its motion to dismiss and to
ing legal proceedings against
par-
innocent
have the opposing affidavits stricken. The
ties, it did write and mail the letter afore-
granted permission
court
to withdraw the
said, fully
was,
believing
and each
that it
motion, but denied the motion to strike
and all of
statements
contain-
therein
Appellant
the affidavits.
excepted to the
were,
every respect
true.”
rulings of the
court
receiving this testi-
further, separate,
And for a
and second mony and
in declining
likewise
to strike
appellant
affirmative defense the
alleges,
the affidavits.
“that the matters
things
stated in the
letter written and mailed
it Young’s
This was not error. No new issue
* * *
Market
were and are
presented
true.” was
to the court on the merits
Thereafter
[appellee]
filed of the case. The court
a right,
had
and it
complaint
an amended
in which she al-
duty,
any
was its
to hear
testimony or fact
leged that the defendant [appellant] “has raised on the motion to dismiss which
doing
been and now is
business in the would unfold the truth
toas
the business
of California.”
Slate
After trial a
appellant
ver-
relations of the
State
duly
was
dict
entered.
testimony
California and this
simply eluci-
202
Doing
381,
Bow,
384.
day
on
148 Ga.
S.E.
dated the
as it existed
status
com
interstate
having relation to
service.
doing business
distinguished
merce
is
denying
If
error was committed
corporation amenable
making
foreign
made at the
defendant’s motion to dismiss
v.
Webster
process. See
service
trial,
denial
commencement of the
or the
242;
Doane,
N.Y.S.
137 Misc.
any
objection
of its
to the introduction of
Williams, Okl.
Trading Co. v.
Auto
evidence,
by the amend
this was cured
583; Knapp
Co.
P.
Tractor
v. Bullock
complaint during
ment
the course
to the
(D.C.)
jurisdictional were facts on the hearings challenging several thereof, service, proof and not the jurisdiction court. should be not Arx v. jurisdiction.” Von gives the court ed, however, practice objecting that the This is 615. F. (C.C.A.9) 193 Boone introduction'of evidence on courts. California also the view ground that the does state McChesney, 103 Cal. v. Howard action, cause of open dismissal on the Doub, 23 Cal. 523; v. Gavitt 37 P. ing statement for the same reason suggestion was made bar some At recognized courts, in the federal even summons was return *7 though permitted in the state courts. required by section is not This sheriff. 965; Boone v. (C.C.A.) U. S. F. Congress 406a, of the supra. The intent United Kansas Portland Cement Co. v. appears in section Rev.St. issues on like Harvey 316; (C.C.A.) 216 F. of Board writ, summons, 777): “No (28 U.S.C.A. § County Com’rs of Hamilton v. Sherwood return, process, judgment, or declaration, 103; (C.C.A.) 64 F. in each. cases cited causes, proceedings in civil ap Nor was it error to receive the letters abated, States, shall be of the United court arrested, pellee referring the offered to same sub any de or reversed quashed, ject matter and of a character from which And further the of form.” or want fect may It purpose be inferred. a malicious appellate (40 the court Stat. provision that by tendered obvious the issue at that once hearing 391), the “On 28 U.S.C.A. § plan complaint asserts a scheme the certiorari, of error any appeal, writ of * * * appellant’s part destroy “the to busi give judgment after an ex shall plain that exist ness relations between the record the of the entire before amination court, her tiff customers and (appellee) that errors, regard to without technical purpose letters were written for the exceptions do not affect or which defects, maliciously injuring the name of the parties.” rights of the substantial the (appellee) for the destroying that es the business has transacted in the The business * ”; plan and which tablished permit corporation to foreign by state letter set out culminated scheme the in to warrant be such as service must complaint as the basis in the of the suit. present corporation is ference that clarify sought simplify was not to or It or less continu activity must be more its by issue. The issue was made the an- may doing corporation be foreign A ous. upon the affirmative defenses swer and bring it within the state to in a business complaint. tendered the' No issue and amenable jurisdiction of the court any part strike of the was made to motion a status process yet not obtain its complaint, separate- or to allegations bring it or statute state regulated be eliminate mat- action or ly causes of state requiring provision statutory within a license for of limitation by the statute barred ter foreign cor operation such bar. of limitations as a plead Ry. the statute De P. v. Vicksburg, poration.' S. & the age, the letter to reasonably action is that attributable The basis complaint. set out result Market letters.” complaint, This, allegations from the After colloquy further the court said: plan asserted is the culmination “In the specific absence objection of a here- destroy the complaint tofore included, made as to what was oí- plaintiff (appellee). The reputation of the analysis an complaint, of this I would feel a letter at first upon trial admitted court compelled say damage that basis malice. to show special consideration may reasonably held all be to include testimony was offer- further Later when previous Undoubtedly, letters. I think that thereto, as follows: objections made was the intention.” testimony object to that wish “I Attorney appellee (plaintiff): for the ground on the stricken out have it “That was the intention.” writing of prior to the date The court overruled objection. complaint, is dated the letter is obvious upon the issue as 1931.” or June June framed, there one cause of ac- inquiry reply In to the court’s tion. That action was for damages for appellee’s stated: purpose, counsel destruction of business injury repu- damages.” “Showing the measure tation. This testimony tended ap- to show far as pellee further: “As And business, had a commodity her concerned, their letter Company was public had merit and favor. Issue having fact 2nd, established April been upon taken the issue tendered, this always cooperate glad to not, may ‘We court review, on this clarify or day on will discontinue we and from simplify the issue. ” Veneer.’ sale of French Section the Civil Code of Pro- cedure of colloquy California, further counsel After “When defendant “ n - n — 2nd, 1931. demur” Ob- appellant stated: within a time, specified transpired previous- viously, anything says: subdivision S “That several bearing on the letter causes of action ly improp- have erly united, or in existence.” not separately letter was not staled.” because We have no error before us for review reading allegation court, after such issue. Code, Section supra, pro- allegation is complaint: “And objection vides: “If no taken, either damage to the business general answer, demurrer or the defendant must then, not this evidence Why, plaintiff. be deemed to have same, waived the ex- ?” admissible *8 cepting only objection the jurisdic- to the “Because, appellant’s counsel: The court, tion of the objection and the that * prior years is three to the this complaint does not state facts suffi- writing the letter.” of the time cient to constitute cause of action.” allegation in “But the The court: jurisdiction The court’s and the complaint a result these that vari- sufficiency complaint of the were raised at any confirming not them to ous letters [sic] every stage proceeding, of the but the im one.” proper joinder separate of actions or the appellant: Attorney for “But we are statement of actions has not been chal apprised anything charg- else we are not lenged, ruling requested nor a by the trial except thing they put to libel ed predicated and error court on the ruling here.” of the court. The bar of the statute of lim any allegation court: “I think the itations to pleaded The matter in the com complaint plaint I just have read is was not asserted as a defense. distinct to the and effect that The bar of the clear letters statute of limitations must written, is, Certainly pleaded, is it pleaded not? be being were it is waiv allegations. Now, 434, read supra. I ed. Section because It should also particulars of a motion for in the absence be stated issue tendered sort, complaint something of that I pursuant think the let- and the letters offered They already allegations are admissible. are to the ters admitted, were rate, competent parties at it is matter intent show of the pass upon, say whether likewise of a status created which existed any damage, of suffered and carried on forward the date sub course, whether, sequent if she did suffer dam- letter, to the the basis of this ac- 20á 672, repeti- the P. 1007. Proof of stock 12 A.L.R. from its tion. The removal acts, especially when tions of plaintiff’s “French libelous May complaint, admissible. charged on article merit in the Veneer” shows supra; v. Young, in issue Hearne Westerfield letter v. De prior to the date of and 958; 607, Tingley Scripps, on that to it 119 Cal. 51 P. gave meritorious status 1, 579, 1097. Co., Cal. 89 P. v. 151 4 N.Y. Times Mirror Carpenter, date. Sheldon v. accomplish is one 55 Am.Dec. 301. There It was not error to admit the testi ac letter, the basis of wrong. ed mony president of the vice plain tion, accomplished destruction Company, that French Veneer was taken was the business, Young’s Market tiff’s off in 1928 o. sale because letters receiv Pangburn, 75 v. Woods to surrender. last appellant. it (It was admissible b3 admissible. The letter was N.Y. 495. ground were on broad the letters 670, P. Young, 52 119 Cal. De Hearne v. separate statement, stat actionable and is ad 150, legitimate evidence All 499. waived,' ute of limitations was section general course bearing on the missible supra, specific sought, damage appel toward the conduct damage limited the one letter Davis inferentially. prove malice lee instructions.) basis of this action It 143, 530. 116 P. Hearst, 160 Cal. v. company contemplated placing That his had- directly in be said that This French Veneer its stores. Ins. Life privileged. issue Ætna public simply answer showed merit. and Accident Health & Benefit v. Mutual Co. demand for the French Veneer. It was not 115, 118], Laws (C.C.A.8) F.(2d) Ass’n permit error to witness answer infra, Statutes, and U. S. of California hypothetical question as to the reasonable nature malice and it without probability extending appel the sale of busi speaks not as a It thereof innocent. commodity lee’s if offered to the trade infringement warning of courtesy or ness in a free market the same reason. No fo.r a busi right, to who stands in legal one objection sufficiency was made to the impugns It to the writer. ness relation question, only competency its and material appellee, and integrity the business ity, and that it is not a matter dishonesty prac in trade charges her with expert testimony may given. The .wit responsibility tices; her financial attacks clearly qualified. Wigmore ness was enjoin threatens of which because 555, Evidence, 1723. He had §§ re and “a customers of Smuckler’s one many years, had merchandising sold up sponsible present time one and to the merchandise, merit, knew its also only house han your esteemed house is public favor it He had degree of received. dling their so-called French Veneer.” knowledge special regard skill and jury’s matter for the was a issue of malice Conley special inquiry, Portland Gas v. McClurg, 215 Cal. Clark v. determination. Co., Light 99 Me. 58 A. and was 908; Wise 284, P.(2d) 81 A.L.R. apply all fully able to of the elements in Firemen and of Locomotive v. Brotherhood hypothetical question degree (C.C.A.) 252 F. Enginemen *9 had, likely public commodity favor the 2 the Act of may that section also be said answer, his “That could have and California, as Laws of 8623 General very be materially increased her (St.1931, p. declares 2466), amended 1931 had and she genuine cause her was misde infringement of trade-mark a a follow for and had a created demand it imprisonment not less providing meanor it What here said ing after was sold.” six months. more than days nor than ten testimony applies employees to the all in penalized Infringement of trade-mark testified, May Company and store who 96 and
by
damages. 15 U.S.C.A.
§
treble
§
appellee’s testimony as to volume
to the
123.
attempt
No
made to
was
show
business.
appellant
not show
profit
The record does
specific
for
of the
loss of
removal
trade-mark,
statutory
store,
or common
May
had a
“French Veneer” from
& Co.
law.
and favor in the com
but did show merit
modity.
admitting
was no error
There
in
prejudicial
in
was no
error
There
by
other
letters
sent
in
made
May any
appearing
the record
Company
statement
Young’s Market
n “charging counsel
judge
by
along
Scott v.
the trial
the same tenor.
for
tac-
with
unethical
Company,
dilatory
181 Cal.
Times-Mirror
defendant
colloquy
was much
but
little evidence.
chastising
presence
him in the
tics and in
though
question might
is no Even
have been
supplied.) There
jury.’’
(Italics
framed,
differently
re-
the answer was
record
remark in the
any
statement of
charge.
fact and not
conclusion.
color to the
lends
ferred to which
claim-
brief,
support
in
Appellant’s
question
The
or an
belief
influ
during
court,
error, says:
“The trial
ed
ence
the common
mind
letter
in
interjected
several remarks
trial
produce,
would
jury
submitted to the
presence
have no
jury which could
of the
question
fact,
as a
proper
under
instruc
prejudice
against
de-
other effect than
tion to which
exception
no
was taken.
By
over-
counsel.
constant
fendant and its
Whether in the
people
minds of
of ordinary
ruling
objections
of defendant’s numerous
sense
bring
it would
appellee into con
testimony,
made
to offered
and which were
tempt,
hatred
injure
ridicule or
her char
merit,
faith,
great
con-
good
acter was
jury.
matter
Ætna
plaintiff’s
on
position
sustaining
stant
Life Ins. Co. v. Mutual Benefit Health &
matters,
actually
amend-
suggesting
all
Ass’n, supra.
Accident
benefit
plaintiff’s
objections
ments and
The damages
not-
have examined the
awarded is
etc. We
a mat
jury
ter for the
given
which is
pages especially,
ed
all
have read
wide discre
tion. Scott v.
Co.,
ruling
judge
supra;
of the
Times-Mirror
record. No
trial
Temperance
Finnish
impresses
any
Sovittaga
thought
charg-
with
Soc.
us
v. Fin
Co.,
nish Socialistic
ing
any
Publishing
unethical conduct or with
idea
238 Mass.
345, 130 N.E.
part of
845-847.
faith on the
There is
than
substan
duty.
tial evidence as to
discharge
damages, by
actual
judge in
of his sworn
Of
busi
made, ness
“many
following
losses
objections”
course
and closing
where
letter
follow,
Young’s
Veneer,
Market
many rulings
objections
if
French
must
by
founded,
public
they
by
over- evidenced
enjoyed
are not well
must be
favor
objections
many
open
French
require
ruled.
rul-
Veneer
Many
market. The
appellee
ings.
prejudicial
years
testified that for
appar-
no
some
There is
error
until
month;
per
ent to
1929 her
netted
Mining
us. Walton v. Wild
sales
Goose
$600
the income was
Trading
(C.C.A.)
&
between
Co.
F.
$300
request
per
merely
month. This
jury
There
instruct
evidence
$400
statements,
disregard
any or
shows that she had a business. There
such
showing specific
statements
trial
is no evidence
judge
rul-
losses, nor
during
may
matter
law
the course is such loss claimed. And it
be said
of the trial. None of the
above that
letter
claims
each
constituted a cause of ac
record,
they
Separate
causes,
stated are
call-
nor were
tion.
statement of
limitation,
judge’s
to the trial
attention
rul- bar
statute
were waived.
ing requested.
supra.
Section 434
It does show basis for
following
the letter to
Mar
loss
testimony
of Winifred M. Jacobs
closing the
And
said market.
re
ket
competent.
is clearly
Inquiry of her was
covery
was limited to that
letter
expert,
not as an
merely
but
patron
jury
allowed for loss
busi
court. The
Veneer,
fact of the merit of French
court,
$11,000, and
under
ness
product.
sales
resistance
another
Constitution,
Amendment
Seventh
error,
any,
if
admitting
the evidence
deprive appellee
benefit
“that her business fell off
verdict;
the amount is in no sense un
nothing
almost
after 1928 when the first
; and as the matter of exem
conscionable
Company,”
was sent to the
entirely
plary
was left
to the dis
cured
court’s instructions to the
*10
jury, the court
cretion of the
cannot invade
limiting damage to the
in
letter
issue.
say
province
jury
that this
admitting
There
no error
in
was
A
amount, $9,000, was excessive.
verdict
Waddington testimony. He had been mer-
plaintiff should not
for
be set aside if it
forty years,
chandising for
was familiar
viewpoint
any
from
can be sustained
Veneer,
it,
with
had sold
all he
French
Myers
Pittsburgh
Co.,
approach.
v.
Coal
asked,
stated,
concisely
was whether
184,
559,
34
tion on communi . . . the letter than [of 1931} June “allowed,” request pleaded damage cations was also the which the that is your And that “malice cannot be inferred.” You cannot base based. exception damages, you further was taken to these items. or event verdict damages, exception submits “that the court find of those let- should *11 law, They jury, matter of what seems to . are offered were as a ters. . . clearly purpose question infringement,” showing in of malice. be of offered for supposed they show error or defect in show or tend to a continual sufficient. The If pointed part de- charge ground was not No or intention on the of the out. desire you plaintiff, then injure that, your fcndant motive and all but in paragraph purpose, may IX question That is their it is a you consider them. whether have not showing yourself dam- purpose of confined for the not to the of one letter 1931.” which To plaintiff this age, replied: “Well, as letter clear- 1931] [of June ” ly complaint. not, . . pleaded . your in the we have has been Honor. ‘That statements contained the communications lim- By recovery instruction this by defendant, Liquid addressed Ve- from, based damages resulting ited to Corporation.’ Now, neer you if refer back upon, If a bet- letter of June paragraph say VI we do ‘Letters.’ We desired, specific ter or more instruction ” say not ‘Letter.’ requested. There was it should have been request. no such Alter further discussion the court said: be affirmed. judgment The should “In the of specific absence objection a heretofore made as to included, what was WILBUR, Judge (dissenting). Circuit analysis or an of complaint, this I would basis, compelled feel say complaint The in this of dam- action sets forth age may reasonably be held to include constituting a letter of as a June previous however, letters. complaint, addition, Undoubtedly, I libel. think that was the alleged prior intention. long that for a time date of the defendant “caused this “Mr. Balter: That was the intention.” letters to be mailed to customers of various On basis the court overruled the ob- plaintiff purpose destroy- of jection and received evidence damages of existed be- ing business relations that resulting from letters written customers, tween and her and that Company early as 1928. purpose letters were written for said In this connection it should be observed wilfully maliciously injuring the that the statute limitations of California plaintiff,” alleged, good etc. name against runs a expiration libel after the by reason said false and malicious “that year. Code Civ.Proc.Cal. 340. The de- § aforementioned, said Young’s letters Mar- pleaded fendant had not statute lim- numerous customers of ket specific itation and did make that objec- carry plaintiff, refused on or do tion, objection but if the made was well plaintiff.” business with the Plaintiff also unnecessary taken it was pleading either in alleged that the statements contained in objection or in question to raise the by the communications addressed the de- concerning damages evidence which had fendant, Liquid Corporation, Veneer were year accrued more than bring- before the “false, untrue, malicious and were action was inadmissible because destroying only barred statute limitations. reputation name and business difficulty I find plaintiff, agreeing and that reason of this the error in admission false, defamatory pub- evidence malicious and as to previous aforesaid, damage from letters 'been dam- lication cured * * * $100,000.” the instruction of aged they in the sum the court only should consider evidence of dam- Early in the trial of the plain- case the ages resulting from the letter of sought tiff to introduce June evidence of damag- complaint, out set in the results resulting es from letters other than the attempt from the there fact that is no one to the Market set forth in the segregate evidence to damages resulting complaint. The defendant consistently ob- prior letters and damages resulting evidence, jected to such but the court con- from the letter sued and no basis up- strued the enough broad to in- on which the could intelligently sep- damages resulting clude from letters writ- damages arate which had accrued because .prior ten 1931. The situation at June other libels and resulting from may the time of the trial be illustrated upon. the libel sued This situation will quotations one or two from the record. through excerpts be illustrated from the objection When the was first made that testimony. damage resulting from other letters could shown, very properly the court testified originally Plaintiff said: she had you 2,000 “My view set about out million customers in Oregon, Wash- charges ington, California, you of libel but unless attribute and that when your damage you “they to them getting cannot claim threatening started these let- damage my them. show prac- because You can ters fell down *12 208 the There is no between tified that for the first pense would when I would witness William P. gross French Veneer. tween
customers timate French Veneer were far only direct results from the libelous let- received about in it in cessation of business with that customer. made month, have never at other a mail order business anything.” it tically nothing. one ter ter.” California and then down, only one-fifth completely counties and it came onto the market as stopped As far California her business amounted to addressed customers at polish $1,000 is clear that the trips business to * * * was like say, three and four hundred- dollars a a and then in 1929 it had fallen 25 this except travel when I all at once time.” She got as damages in fallen down.” She stated she to evidence ‘I just quit that we had threatening that appears can’t month; began all go in those letters the sales cutting 1929 and I “up time found anything that out and these customers the the decided to letters a buy,’ Waddington as to the general as to fall when the California because -it that you from the record the until year Southern California it few * stated a result of this let- 1931 had almost in California in the off with a I price; Market was the her are not At the time we out-selling any plaintiff- quickly the just 1928 was “be- years day. away she could it they extent of this statement of stay product our sales on that before year house, lost heart is an and then that: that She tes- she was right fell making not es- as this result- knife; about cost had loss. her ex- off extent of of brief “I in .annals without some evidence there the other letters mitted the to margin.1 a struction instructions as to not letter set due ters struction that bear damages, as will concern cult “ * * * she claimed fered cannot from general segregate June the business In The amount damages error. jury to had a jury clearly able to corner for herself a attempting from the planned to see taken from evidence introduced they -The the brief to estimate must have been some view of by the letter of as one of the see how an instruction to the avoid the conclusion of a weak to have resulted from the in their consideration of up charge by reason appellee the business. should jury this case Moreover, disproportionate resulting her in the regarding letter in to make an award definitely large damages introduced from malicious entire business. the appear that disregard does competitor failure June give punitive damages. damage, stated in damage complaint. most vicious damages evidence would cure will the instructions to as amount from the other let- it defendant that influential business regard not by to the volume and and worked hard Young’s due to the letter In other withdrawn go prior from additional program honest means.” attempt by resulting in due that the proof the evidence down damage the evidence who awarded of as follows: evidence, but tiny It sales was to could not examples damages punitive because I Market for the the specific words, of in the makes of de- injury share quote from from diffi- jury jury per- suf- her the de- I respect damages an ob- “In action for breach of law an “With arising ligation contract, provides such breach of obli an charged case, gation arising de- as is from contract —that where guilty oppression case, claims what fendant damages malice —and in this case it would fraud or be—the measure express compensate in ad- mean malice —the for amount which will damages proximately thereby, recover dition to actual caused detriment example damages anticipated sake of have been whether could way punishing words, must defendant. In not. you you' now, “If, such, think that this method find T>e in the event should a. engendered plaintiff, proxi used the defendant was are ver-dict destroy mately, is, directly, busi- rested caused plaintiff, was done and ness of of the defendant. acts plaintiff, thereto, gentle- however, or ac- with ill-will toward the addition “In companied and, guess men, did itself consist an the law state I in this oppression, you liberty provides every state, then are at known for what act exemplary damages; is, exemplary damages mean award some- opposed damages. exemplary compensatory. thing to. from actual different *13 loss while not mak- of her business and that compensate ing the award which would $7,200 of net revenue loss year, it amount of dam- had reduced the depression began ages the lat- because the part during ter of 1929 and continued period involved in this action. I do fair not believe had a damages in question trial on the view contradictory trial ruling subject.
judge judg- I think
ment be reversed. should
GRIFFIN MFG. CO. v. BOOM BOILER & WELDING CO.
No. 7182. Appeals,
Circuit Court Sixth Circuit. May 14, 1937. carefully, gentlemen, if, meaning case that are reimburse you you you may plaintiff, suffered, find for event actual loss may exemplary damages, is, those two features and fix consider award dam- you ages by way example. think in amount at such actually suffered, you. one case she are “You take the ease with You any opinion case she should not controlled way inforentially directly of and in the court have awarded reason (Italics exemplary damages.” ours.) expressed. governed You to be passion prejudice, nor but consider