Inland Printer Co. v. Economical Half Tone Supply Co.

Mr. Justice Sears delivered the opinion of the court. It is contended by appellant that “ the verdict and judgment are contrary to and not supported by the evidence or law,” and upon this ground, among others, it is urged that the judgment should be reversed. To this contention we can not assent. The alleged libel charges, and the pleas of justification reiterate, in effect, that the appellee’s wares are “ a humbug” and are worthless and unfitted for practical use in the production of half-tone pictures. These statements of the publication were based upon an examination of a circular issued by the appellee commending its wares, and not upon examination of or experience with the apparatus offered for sale. If the statements are false and were maliciously made, a cause of action exists for any damage resulting. The publisher of a trade journal may doubtless make any fair and reasonable discussion of the wares of a merchant or manufacturer who solicits public patronage, and may publish an honest expression of opinion upon the merits of such wares. But, under the guise of expressing an opinion upon' such _waresya-’-publisher is not privileged to maliciously make any false statement of any material fact in relation to said wares; nor to maliciously make_any false statement of fact which shall impute to suchmereha-nt or manufacturer a want of integrity^in. his business. The issue of fact presented in this cause was as to whether the statements of the publication were false. That the appellants were responsible for the publication, that if false it was also malicious, and that some damage resulted, coüliTTiárdryFé^considered as controverted in this record. Appellants pleaded the truth of the statements in justification of them. The question of fact presented was as to the sufficiency of the evidence to support such plea. This was a question for the jury, and we can not say that upon the evidence they might not have properly found, as they did, that the statements were in substance false. Appellants attempted to support their plea by proving that certain of the representations made by the circular were false. This, we think, they had a right to do. The publication was based upon an examination and criticism of the circular. The plea sets up the circular as false in justification. An issue was formed on replication to this plea. Therefore it was competent to show that the various statements of the circular were false. In this behalf, appellant undertook to establish that the process of half-tone making was not a secret process; that the process adopted by appellee did not operate automatically, and did not dispense with the use of poisons; that the process was not invented by appellee’s employe and agent, but was known long before this device was put upon the market, and had been described in books upon the subject;' and that the representation to the effect that an inexperienced person could make half-tone cuts of commercial value by use of the device, was a false representation. But while this line of evidence was com-j ■petent, yet the establishing of The" falsity- of any one orb more of these various representations- of the • circular will j not qí itself and as a matter of law be conclusive against a | recovery by appellee. The publication and the plea of justification gO-beyond the mere assertion of the falsity of these -various statements of the circular. It is charged that the device -is_a “hmh'6ug.>’ and worthless, unfitted for making half-tone pictures of value, and in effect that appelleeis dishonest in the vending of the device. It was for the-jury to determine from all the evidence whether the plea was sustained, i. <?., whether the evidence established that the device was a “ humbug,” worthless and unfitted for use, and therefore that the appellee was dishonest in advertising and selling it. The evidence is conflicting, and we can not say that the determination of the jury, as expressed in the verdict-, is without support in the evidence. We are of opinion that there was no error in admitting in evidence the prints in half-tone as contained in the Chicago daily papers, which were exhibited to the witnesses on cross-examination. These witnesses had testified as experts that the prints made by appellee’s device were not commercially acceptable. To test their credibility as experts they were asked if the prints in the Chicago papers were, in their opinions, acceptable, and to explain why they were regarded by them as acceptable, while the prints made by appellee’s process were not. The prints, having been thus, used in cross-examination, were admitted in evidence. We can not say that the court erred in admitting this cross-examination. Greater latitude is allowed in the going outside of facts in evidence for the purpose of cross-examining experts than is allowed in the examination of other witnesses, and the extent of such latitude is a matter resting largely on the sound discretion of the trial judge. 2 Jones on Evidence, 391. We can not say that the learned trial court erred in the extent to which this cross-examination was permitted. We are of the opinion that there was no error in allowing appellee to show loss in the falling off of its sales after the publication. Whether such loss was attributable to the. publication was for the jury to determine from all the evidence. If it had been attempted to show the loss of specific-customers, and such loss was not alleged specially in the declaration, the ground of' objection urged by counsel would be good. But such objection does not apply to proving a general decrease of the business. ' There remains one other question of procedure to be considered, and we consider it as controlling of the- appeal. The manager of the appellee company, when testifying for appellee, was asked in relation to the falling off of appellee’s sales: “ Do you know of any reason except this libelous article in the Inland Printer to which to assign the fact that since then you have sold so few?” This question was objected to by counsel for appellant upon the ground, among others, that it called for the conclusion of the witness. The objection was overruled, to which appellant preserved its exception. The witness answered, “ I do not.” In this ruling we think there was error. It permitted the witness to usurp the function of the jury, to canvass the evidence and to determine from it all that the only reason for the loss was the libel. The jury might well have rested upon this evidence, given to them as competent, and have based their measurement of the damages thereon, without attempting to determine from all the facts whether the opinion and conclusion of the witness was correct or not. In a case where the evidence is conflicting, and where the damages assessed by the jury are large, we can not disregard this error, or view it as any other than reversible. It is altogether too likely that it influenced the jury to the prejudice of appellant. Having objected to the admission of this evidence, and having preserved an exception to the ruling of the court in overruling the objection, appellant urged this as one of the grounds for a new trial, and now presents it as one of its assignments of error. For the error thus assigned the judgment is reversed and the cause remanded. We find no other error in procedure. Eeversed and remanded.