Newbold v. J. M. Bradstreet & Son, 57 Md. 38

Newbold v. J. M. Bradstreet & Son

57 Md. 38 | Md. | 1881

Alvey, J.,

delivered the opinion of the Court.

This is an action for what is supposed to be a libel published by the defendant, a corporation, of and concerning the plaintiffs in their business as merchants.

The plaintiffs are merchants in the city of Baltimore, dealers in glassware, and the defendant conducts a Mer_ *49-cantile Agency in the same city, the object of which is to furnish information to subscribers, respecting the credit and commercial standing of merchants. It appears that the plaintiffs had been for two years prior to January, 1818, subscribers to this agency. And in addition to furnishing information, as from an intelligence office, of the standing and credit of merchants, the defendant, for the benefit of its local patrons, printed and published a daily sheet or circular, under the title of " Bradstreets’ Daily Sheet of Changes,” devoted to showing the changes and transfers of titles to real and personal property, mortgages, judgments, &c., in the city of Baltimore, This sheet was circulated only among the subscribers to •the agency in the city, numbering, according to the proof, from five hundred to one thousand. In the daily publication of January 15th, 1818, which contained separate •divisions or headings, designated “ Mortgages,” " Chattels,” "Assignments,” "Deeds,” "Releases,” "Judgments,” &e., under the heading “Chattels,” occurred the following: “ Newbold & Sons to J. R. Burns,” without anything more in respect to that entry; and the plaintiffs allege that the meaning of the entry was, and that it was so understood among the subscribers to the •agency, that the plaintiffs had made a chattel mortgage -to J. R. Burns. The declaration contains averments of both general and special damages to the plaintiffs, in •their business as merchants, by reason of the publication. The case was tried upon the general issue plea of not •guilty of the wrongs alleged.

In the course of the trial there were sixteen bills of •exception taken by the appellants, all but the last relating to questions of evidence. The Court finally granted an instruction, that under the pleadings and evidence in the cause, the plaintiffs, the present appellants, were not entitled to recover.

*50By the first exception it is shown, that in the examination of one of the plaintiffs as a witness, counsel asked him to state whether there was any usage with the defendant, which gave meaning to the words, “ Chattels, New:' hold & Sons, to J. R. Burns,” as published in the printed sheet of the 15th of January, 1878 ; and the witness, replied that there was such an usage. Whereupon, the witness was then requested to state what was the meaning of the words. To this the counsel of the defendant objected, and the Court ruled that the witness could not give his understanding of the meaning of the words, unless he first showed how he had acquired knowledge of the meaning.

The witness then stated that his firm had been a subscriber to the agency; that he had been in the habit of reading the daily publication in the form in which it was published on the 15th of Jan., 1878 ; that he knew some persons who had given chattel mortgages, and all of those mortgages were published under that head, that Is to say, “ chattels ;” and that he in that way had acquired knowledge of the meaning of the words in question. But the Court was of opinion that the means of his knowledge were not sufficient to enable him to answer the question, and accordingly excluded the answer.

The' second exception presents substantially the same question as the first, though in slightly different form. What we say in regard to the first will equally apply to the second.

The general rule doubtless is, that the ordinary popular meaning or sense of the language alleged to be libellous is to be taken to be the meaning of the publisher ; but a foundation may be laid for showing another or a different meaning. And' so where the language is of doubtful meaning or import, or where it fails to convey any explicit, meaning without the aid of extrinsic circumstances. In such cases, something may have previously passed, or *51some liabit or usage may liave obtained, that gave peculiar meaning or significance to the expressions employed. When, therefore, it is desired to get at this peculiar or extraordinary meaning of what is alleged to he libellous, the witness should he first asked whether there he any extraordinary or peculiar meaning expressed by the words in question ; and if the answer he in the affirmative, he should then state the means and extent of his knowledge upon the subject of the peculiar meaning of the words ; and if it appears to he adequate, he may then he asked-the question, “What did you understand by the words employed?” This seems to be the settled formula in such cases. Humphreys vs. Miller, 4 C. & P., 7; Daines vs. Hartley, 3 Exch., 200, 206; 2 Greenl. Ev., sec. 417. It is the same mode of proof as in the cases of libel published in a foreign language, or in cipher; in each of which cases, the witness must first establish to the satisfaction of the Court that ho understood the language, cipher, or symbol employed, before he is allowed to give to the jury his understanding of the libel. This is to prevent the jury being misled, whose duty it is to determine not only the application of the alleged libel to the plaintiff, and to his trade or business, hut its real sense and meaning, and whether in point of fact, the construction put upon the words by the averment of the plaintiff is home Ollt ami supported by the evidence ; for if the words be susceptible of a harmless meaning, it is incumbent upon the plaintiff to show, both by averment and evidence, that they were used and understood in a libellous and not in a harmless or innocent sense. Homer vs. Taunton, 5 H. & N., 663; Solomon vs. Lawson, 8 Q. B., 823; Hemmings vs. Gasson, El., Bl. & El., 346 ; Goldstein vs. Foss, 4 Bing., 489.

How, in this case, we think there was a sufficient foundation laid for the question to the witness, as to what was the meaning of the words used in the alleged libel. The *52witness had been for sometime a subscriber to and reader of the daily publication, and he had known instances of chattel-mortgageshaving been placed under the heading “chattels.” This entitled him to say,' what he understood to be the meaning of the words in question; it being for the jury to determine upon the whole evidence, whether his understanding of the meaning of the words was correct or not. We think, therefore, the Court was in error in excluding the question, and in not allowing the answer of the witness to go to the jury. And the same ruling should have been made upon the offers set out in the eleventh and twelfth exceptions. But as to the third, fourth, fifth and thirteenth exceptions, relating to the same subject-matter as those just mentioned, the offers being in the naked form, disconnected from any previous foundation as to the witness’s knowledge, we think there was no error in the rulings thereon.

And having determined this question of evidence, we shall, in the further consideration of the case, assume the evidence to be in, and that it clearly established the fact that the meaning of the words charged as libellous is, according to the plaintiffs’ averment, that the plaintiffs had made a chattel-mortgage to J. R. Burns. Taking this to be the meaning, and the plaintiffs can insist upon no other or larger meaning, (Barhams’ Case, 4 Co., 20; Goldstein vs. Foss, 4 Bing., 489; Williams vs. Gardner, 1 M. & W., 249; Broome vs. Gosden, 1 C. B. 732 ; Williams vs. Slott, 1 Cr. & M., 689 ; Sellers vs. Tile, 4 B. & Cr., 655,) it is clear, we think, that the alleged libel contains nothing that is actionable per se; that is, from which the law would infer damage, as being necessarily occasioned by the publication. That is the test, as we understand " the authorities, as to the right to recover general damages, in this class of cases. Townsh. Sl. & Libel, sees. 146 to 148, and 188; 2 Greenl. Ev., secs. 254, 256, and 420, and the authorities there cited. To say *53or publish of a merchant any thing that imputes insolvency, inability to pay his debts, the want of integrity in his business, or personal incapacity or pecuniary inability to conduct it with success, is slanderous or libellous per se, if without justification, and general damages may be recovered. Such publication necessarily, in legal contemplation, tends to injure the credit and standing of the party of whom it is made. But we have been referred to no case, and have been able to find none, in which it has been held, that to say of a merchant simply, that he has made a chattel-mortgage, without any thing more, as to amount, subject of the mortgage, or the occasion of it, is libellous or slanderous per se, and that damage therefrom is nccesarily inferred. We think no such legal inference can, in reason, he indulged. Chattel-mortgages, as well as the pledge of stocks and other securities, may he made by merchants and others without giving rise to any legal inference or presumption of insolvency, or that such an. act will necessarily tend to impair or injure the credit and standing of the mortgagor or pledgor. Indeed, we suppose it would he alarming to merchants and Ladesmen to learn otherwise.

All proof therefore of general damage, such as that stated in the sixth, eighth and fourteenth bills of exception, was properly excluded. It could onl\r have been offered incase the libel were actionable pt-r se; but not when it is only actionable with respect to such special damage as may be alleged. Dicken vs. Shepherd, 22 Md., 399, 416; Dixon vs. Smith, 5 H. & N., 450.

Where the alleged libel is only actionable in respect to special damages, it must appear to he of a character that the special damage alleged may he the natural and proximate, though not the necessary, consequence of the publication. 2 Greenl. Ev., see. 420; Townsh. 'SI. & Libel, sec. 197, and notes to that section. The special damage must he proved as laid, and any substantial variance between *54the allegation’ and proof will he fatal. It must also appear to be the natural and immediate consequence of the defendant’s wrongful act; and if the special damage is alleged to consist in the refusal of a third person to deal with the plaintiff, or to give him credit, or in the action of any third person in enforcing obligations, evidence is not admissible of the declarations of such third person as to his reason or motive for so acting; the third person himself must be called to prove his motive; for the act without the reason or motive therefor is no evidence against the defendant. Tilk vs. Parsons, 2 C. & P., 201; Tunnicliffe vs. Moss, 2 C. & K., 83; Dixon vs. Smith, 5 H. & N., 450 ; Dicken vs. Shepherd, 22 Md., 415 ; 2 Stark. on Sl. & Lib., 57, 58.

Now, in this case, the alleged libel not being actionable per se, but only in respect to the special damage alleged, it is quite clear, upon the principles we have just stated, that the offers of proof of special damage, contained in the ninth and tenth exceptions, were not admissible, and therefore properly excluded. There is no evidence whatever to show any connection between the acts of the parties named in those exceptions and the alleged libel, or that they ever saw it, or knew of its existence. Such evidence could furnish nothing more than a foundation for a mere conjecture as to the reasons upon which the parties acted.

We think there can be no question as to the correctness of the ruling stated in the seventh exception. The plaintiffs had already given in evidence the fact that they had applied to the defendant to have the error in the publication corrected, and that it had been corrected, in the publication next after such application, though not in the way desired by the plaintiff's. We know of no principle upon which the plaintiffs’ declarations and statements contained in the letter offered, can be made evidence in their own favor, in a case like the present. It was, we think, properly excluded.

*55(Decided 30th June, 1881.)

Nor was there any error ip excluding the evidence embraced in the offer as stated in the fifteenth exception. The declarations of a reporter for the' defendant, without any evidence of authority to make such declarations, were clearly inadmissible, and the Court could not have clone otherwise than exclude them.

Upon careful examination of the whole record we find ' no evidence whatever of the special damage laid in the declaration. And as the supposed libel is not actionable per se, the prayers offered by the plaintiffs were properly refused. The instruction given by the Court, at the instance of the defendant, was defective, inasmuch as it left the matter uncertain, whether the defect or failure of the plaintiffs’ case was to be found in the pleadings or in the evidence;. There was no case, however, for the jury, and the instruction should have been, that, upon the pleadings in the cause, there was no sufficient evidence of any special damage to entitle the plaintiffs to recover.

Upon the whole case, as disclosed by the record, we agree with the Court below that the plaintiffs were not entitled to recover, and we shall therefore affirm the judgment, notwithstanding the errors to which we have referred.

Judgment affirmed.