18 F. 214 | U.S. Circuit Court for the District of Maryland | 1882
It does seem to me a very much better way of conducting the trial that it should be ascertained first whether there is any ground for the action, otherwise, if it should turn out that the paper offered in evidence was a privileged communication, we may get into a very long controversy, which may be obviated at this stage of the proceedings.
The witness then, upon cross-examination by the defendant, further testified that the firm of William Devries & Co., of which he was a partner, was, at the time of receiving said paper, and had been for a number of years before, a subscriber to the mercantile agency of the defendants; that when they first credited plaintiff, which was probably soon after the close of the war, they made an inquiry of R. G-. Dun & Co.; that they were apt to make one twice a year, — every six months, — may have made half a dozen during the year; that this paper, or a similar one, came to their office giving this information. AYitness, upon being shown a ticket addressed to R. G. Dun & Co., asking information in regard to plaintiff, and dated June 16, 1881, identified it as having come from his office, and upon being asked whether the paper received by him was not in answer to the inquiry contained in said ticket, replied:
“I don’t know. I shoxild infer it was. AVe make inquiries every day in the week. AVe have an understanding with JR. G. Dun & Co. that if anything occurs to any of our customers they are to immediately inform us.”
(The defendants’ counsel then asked the court to exclude the paper offered in evidence by the plaintiff,' and the question was fully argued.)
Morris, J. If a merchant having an interest in knowing the financial standing of another merchant, whom he proposes to deal with, goes to another, and asks him with regard to that person’s financial standing, and he honestly answers him what he knows about
The plaintiff took a nonsuit.
The first point made in the case before us is in harmony with many rulings on the subject of admissibility. When the admissibility of either a witness or a document is in question, the party opposing the admissibility is entitled, as a preliminary test, to cross-examine on this specific issue the witnesses on
The point as to the liability of mercantile agencies for libel in ease of an
From these judicial statements of the object and limitations of mercantile agencies it appears that their value is largely dependent on their confidential relations as agents for inquiring and reporting as to the character of business
The utility of mercantile agencies being unquestionable, and their utility being dependent on their confidential limitations, it is not strange that these limitations should be not only maintained, but insisted on, by the courts. And this is in two ways. If the limitations of confidence are thrown off by tho agency, — in other words, if it publishes to the world the information it collects, — then it is liable in damages to parties whose characters it disparages, or whose standing it impugns. On the other hand, if it confines itself to the confidential communication of such information to its customers, then if it acts bona fide, and without malice or recklessness, these communications are privileged, and the defendant, if sued for a libel in making such communications, would be entitled to a verdict. Meddlesomeness, it should be remembered, is an important test to be kept in mind in cases of this class. If a communication be merely meddlesome, if it be not dictated by a lawful business obligation or by a lawful personal duty, then privilege cannot be invoked.
The leading eases in this line, and the first precedent for the position here maintained, are those in which suits were brought by servants, alleging that they had been injured by information given as to their character by their former or present employers. In these cases it has been held that a master applied to for the character of a servant is privileged to give what he conceives to be a correct answer; and no action lies for the answer if it turns out to be incorrect, supposing it to have been honestly given. It is otherwise, however, where a false answer is given maliciously.
It has also been held that confidential communications between officers of trusts as to servants and customers are in like manner and with the like limitations privileged.
In respect to mercantile agencies the same distinctions are applied, not only in the case in the text, and in Erber v. Dun,
FRANCIS WHARTON.
R. v. Gisburn, 15 East, 57; Quarterman v. Cox. 8 C. &. P. 97; Brockbank v. Anderson, 7 M. & Gr. 295; Fifield v. Smith, 21 Me. 383; Walker v. Sawyer, 13 N. H. 191; Bridge v. Wellington, 1 Mass. 219; Foley v. Mason. 6 Md. 37; Wright v. Mathews, 2 Blackf. 187; Herndon v. Givens, 16 Ala. 261.
See Fisher v. Samuda, 1 Camp. 193; Clark v. Houghton, 12 Gray, 38; Richardson v. Robbins, 124 Mass. 105; Coxe v. England, 65 Pa. St. 212; Rankin v. Crowe, 19 Ill. 626.
Hart v. Hart, 1 Hare, 1; R. v. Piddlehinton, 3 B. & Ad. 460; R. v. Hinckley, 3 B. & S. 885; Richards v. Lewis, 11 C. B. 1035; Plaxton v. Dare, 10 B. & C. 17.
See Cates v. Hardacre, 3 Taunt. 424; Chestler v. Wortley, 7 C. B. 410; Schofield, Ex parte, L. R. 6 Ch. D. 230; Low v. Mitchell, 18 Me. 372; Coburn v. Odell, 30 N. H. 340; Brown v. Brown, 5 Mass. 320; People v. Kelly, 24 N. Y. 74.
Osborn v. Dock Co. 10 Exch. 698; Fernandez, Ex parte, 10 C.B. (N.S.) 329; Grannis v. Brandon, 5 Day. 260; People v. Mather, 4 Wend. 229; Ward v. State, 2 Mo. 98; Floyd v. State, 7 Tex. 215.
See Greenough v. Gaskell, 1 M. & R. 98.
Ross v. Gibbs, L. R. 8 Eq. 522; Hamilton v. Nott, L. R. 16 Eq. 112.
Johnson v. Durant, 4 C & P. 327; Buccleugh v. Board of Works, L. R. 3 Ex. 306; R. v. Rosser, 7 C. & P. 648; Howser v. Com. 51 Pa. St. 332.
Plunkett v. Cobbett, 5 Esp. 136; Chubb v. Salomons, 3 C. & K. 75; Hartrauft’s App. 83 Pa. St. 433.
Gibson v. Dun, Court C. P. Hamilton Co., Ohio, 1876, pamphlet report. -
Pamphlet report.
Pamphlet report.
Shipley v. Todhunter, 7 C. & P. 680,
Steph. Dig. Cr. Law, § 278.
Hargrave v. Le Breton, 4 Burr. 24, 25; Pattison v. Jones, 3 Man. R. 101; 8 B.& C. 578; Child v. Affleck, 9 B. & C. 403; 4 Man. & R. 338 ; Kelly v. Partington, 4 B. & Ad. 700; Carrol v. Bird, 3 Esp. 201; Dale v. Harris, 109 Mass. 193. See Gardner v. Slade, 13 Q. B. 796; Fowler v. Tiffany, 30 N. Y. 20.
Blackburn v. Blackburn, 4 Bing. 395; 3 C. & P. 146; Green v. Chapman, 5 Scott, 340; 4 Bing. N. C. 92.
Philadelphia R. R. v. Quigley, 21 How. 202.
12 Fed. Rep. 526.
8 Phila.Rep.617.
Ormsby v. Douglass, 37 N. Y. 477; State v. Lonsdale, 48 Wis. 348.
Sunderlin v. Bradstrcet, 46 N. Y. 183. See Robshaw v. Smith, 28 L. T. 423, cited Odgers, Libel, 207.
Odgers, Libel, 210; citing Davis v. Reeves, 5 Ir. C. L. R. 79, where it was held that a regular solicitor was privileged to give such information to his client in all matters concerning his client’s interest.
Taylor v. Church, 4 Seld. 452; Sunderlin v. Bradstreet, 46 N. Y. 188; Beardsley v. Tappan, 4 Seld. 452.
id.; Ormsby v. Douglass, 37 N. Y. 477.