248 F. 649 | 4th Cir. | 1918
F. A. Shryock, the plaintiff in error in this case, was an apple dealer in Frederick county, Va., and in the latter part of 1913 sent a postal card, which was received by S. P. Calkins & Co., the defendants in error, advertising his apples. S. P. Calkins & Co. were fruit brokers carrying on business in Memphis, Tenn. As the result of subsequent telegraphic communications between the parties Calkins & Co., as brokers, sold for Shryock 1,000 barrels of York Imperial apples at $3.75 per barrel, less brokerage of $10 per car, of which five carloads were sold to M. E. Carter & Co. of Memphis, to whom they sold one car to be shipped about November 3d and another car about November 10th. These two first cars were shipped, and on receipt of the first it was rejected by Carter & Co. as being in bad condition, and, under subsequent telegraphic communications between Shryock and Calkins & Co., Carter & Co. were authorized to sell the car of apples for the account of Shryock. The second car was also rejected by Carter & Co. on account of the condition, and, after telegraphic communications between the parties, Calkins & Co. were by Shryock authorized to do the best they could, and thereupon sold it to Carter ior $3 per barrel. The result of the sales of the apples was a loss over and above the contract price estimated by Shryock as equal to $576.25. Great difference of opinion as to the action of Calkins & Co. and Shryock’s treatment developed between the parties.
In the summer of June, 1914, Shryock prepared a circular which is the libelous writing set up in the declaration. This circular was headed “Catchum and Skinnem,” and then contained the other alleged libelous statements in full. Shryock first showed his rough draft to one Bentley of the firm of Kern & Campbell, and then sent the draft to a printer in Winchester and printed 400 of the circulars. The circular as printed had the words “Catchum and Skinnem” as a caption at the top, and of these circulars with that caption, according to Shryock’s own admission, one copy was given to the representative of a publication called “The Packer”; another copy was given to the representative of the Produce Reporter Company, who published a book called the Blue Book, which appears to have been a book containing the ratings of persons engaged in the produce brokerage business, and included S. P. Calkins & Co. He also inclosed a copy of the circular with the words “Catchum and Skinnem” at the top-to Calkins & Co., informing them that he had printed it for the trade papers and the trade in general. After hearing from The Packer, whose opinion he asked, as to whether he incurred any. responsibility for liability for issuing this circular, he cut out or tore off the caption
In January, 1915, the declaration in this case was filed, claiming damage for the publication of the libelous matter contained in the circular, for damages done to the plaintiff in their business connections as brokers, and also for general damages done to them to their good name, fame, and credit, by a libelous publication of the kind. To this declaration on the 27th March, 1915, the defendant pleaded the general issue of not guilty, and moved the court that the plaintiffs he required to file a bill of particulars of their claim, and obtained at the same time leave to plead specially to the declaration within .30 days. Subsequently, on 16th April, 1915, the .court overruled the. motion for a bill of particulars, and the defendant thereafter filed no special plea, but went to trial upon the declaration and the plea of not guilty, being the plea of the general issue. At the trial the jury returned a verdict in favor of the plaintiff, and it is from the judgment on this verdict that the writ of error in this case has been taken.
Further, with regard to any bill of particulars sought as to the number of people to whom the libel was communicated or published, that should be more peculiarly within the knowledge of the defendant than of the plaintiff; the plaintiff only knows by report or hearsay of the general current knowledge of the publication of the libel, but the defendant himself must know to whom in the first instance he himself directly communicated it or published it. It would not appear, therefore, that the presiding judge below was in error in overruling the motion for a bill .of particulars.
With regard to the circular to the representative of the Produce Reporter Company, who published the Blue Book, the evidence of the defendant is that the representative of the publisher of the Blue Book came to him to get full information of his complaint against S. P. Calkins & Co.; that the defendant answered all questions that he asked, and then handed one of these circulars to him, and told him that this circular explained his side of the case as well as he could possibly tell it to him. In the first place, it is to be noted that this circular was not a simple statement to the Produce Reporter Company of the facts of the case. It contained a characterization which was outside of mere information, and could not have been in any wise called for in any re
“There will be no denial on our part but that a privileged occasion may be abused, and that if the defamer exceeds the privilege of the occasion he will be liable.”
Without deciding whether or not information of this character, communicated in the shape of voluntary information to a publication of the character of the Blue Book, is qualifiedly privileged, it is evident that the occasion did not call for any such publication as the defendant made. The instruction asked by defendant was that the copies given to the Reporter Company and The Packer were not libels and could not be considered by the jury. Any such unqualified instruction would have been unsound. The instruction of the presiding judge that in no instance mentioned in the evidence was the dissemination of the printed circular in question privileged does not, under the circumstances of this case, appear erroneous. The publication to The Packer was clearly not privileged, and the publication to the publishers of the Blue Book was of a libelous character, so uncalled for as to put it outside of the claim of qualified privilege. There had been two preceding publications of the libel with the caption “Catchum and Skinnem,” one to Bentley Kern, and the other to the printer who printed it. The circular handed to the publishers of the Blue Book was not the giving of a piece of confidential information confined to the giver and the recipient, but the repetition o f a libelous publication .already made, and in any event could be considered by the jury upon the existence of malice.
Assignment Sixth. There was no evidence whatsoever to show that the loss in the plaintiffs’ business could be referred to any other
‘■plaintiffs should bo allowed fair compensation for the loss or injury, if any, to their business, for the insult to thorn, Including mortification or mental suffering, if any, indicted upon them by the dissemination of the charges, and for injury to their reputation as men and citizens, which you may believe from the evidence was the approximate result of the dissemination of the aforesaid circular. By approximate result I mean a result which in your judgment was the natural and probable consequence of the dissemination of the defamatory charges in question, and such as should have been foreseen by the defendant.”
This charge to the jury made the finding of the damages to their business depend upon whether that loss or injury, if any, to them, in their business, was the proximate result of the dissemination of the circular.
Assignments of error 7, 8, and 9 appear to the court to be wanting in merit, as the correctness of the instructions appears to be unquestioned.
Assignment 12 is only an assignment of error to the refusal of the presiding judge to grant a new trial on the ground that the verdict was contrary to the law and evidence, as set forth in the assignments of error, which have been already considered, and upon the further ground that the verdict was excessive, and need not be considered.
The judgment below must therefore be affirmed.