Landon v. Watkins

COLLINS, J.2 This was an action for libel in which plaintiffs had a verdict. The appeal is from an order denying defendant’s motion for a new trial. Five separate causes of action were set out in the complaint, but at the trial the second and fifth were abandoned. Pending a hearing in this court of another case between these same parties, reported in 52 Minn. 389, 54 N. W. 193, the defendant published a circular (Exhibit B) relating to the manufacture and sale of the liniment mentioned in that case, in which manufacture and sale plaintiffs were then engaged. The plaintiffs, claiming this publication to be libelous, made it the foundation for their first cause of action. Later, defendant issued and published another circular (Exhibit A) of the same import, and relating to the same subject, and this publication is made the basis for the [142] ■third cause of action. Soon afterwards, defendant sent to certain persons who were purchasing Dr. Ward’s liniment from plaintiffs a notice (Exhibit C) relating to such liniment, which notice the latter ■claim was a libel on their property rights, and, alleging special damages, they made these acts their fourth cause of action. The defendant admitted that these circulars and the notice were published and sent out of and concerning the plaintiffs. At the trial his justification was that the statements contained in the circulars and notice were true, and also that they were privileged in their character. 1. The'first question is whether the circulars referred to in the first and third causes of action were libelous per se. The court below charged the jury that they were. Both had the same displayed headlines, as follows: “Beware of Counterfeits and Base and Dangerous Imitations of our well-known Dr. Ward’s Vegetable Anodyne Liniment.” Then followed direct as well as covert references to the plaintiffs, whereby there was charged upon them base and dishonest practices and conduct in the manufacture and .sale of what was known as “Dr. Ward’s Liniment.” As was said by the court below, the headlines are an important part of the publication, and cannot be disregarded, for they often render a publication libelous on its face which without them might not necessarily be so. Hayes v. Press Co., 127 Pa. St. 642, 18 Atl. 331. See, also, other cases cited in note to McAllister v. Detroit Press Co., 76 Mich. 338, 15 Am. St. Rep. 347, 43 N. W. 431. In these headings to publications we frequently find the “sting.” Taking those in question with the language used in the body of each circular, we think it clear that they are reasonably capable of but one meaning; namely, that plaintiffs were guilty of wrongfully and fraudulently counterfeiting and imitating the liniment made and sold by the defendant, and were engaged in base and dishonest efforts to palm it off on the public as the genuine article. 2. The notice the circulation of which was made the foundation for the fourth cause of action contained facsimiles of what defendant claimed were his trade-marks (two in number) for Dr. Ward’s medicines, together with a caution that, as each had been registered, any infringement thereupon would be promptly prosecuted, .and to “take timely warning.” The plaintiffs claimed that this [143] was a slander of title, and the complaint contained all allegations necessary to sustain an action of this nature, and there was evidence tending to support the allegations. The jury was charged that Exhibit 0 was not a libel on its face, and with proper instructions as to what would amount to a slander.on the right of title plaintiffs had to manufacture and sell Dr. Ward’s liniment, and that ■special damages must be shown to entitle them to recover on this ■cause of action, the question was submitted. This was correct. With these remarks, we have disposed of all assignments of error bearing on the contention of defendant’s counsel that the complaint failed to state facts'sufficient to constitute a cause of action in any of its parts. 3. Counsel for defendant urge that there was error in the admission of evidence tending to show a falling off in plaintiffs’ sale .after the publications. Under proper allegations in the complaint, —and there were such in this, — evidence of general diminution of profits and a loss of trade is admissible in an action for libel. New-ell, Defam. 864; Folkard’s Starkie, Sland. & L. 313, 486. When the injury complained of is a loss of trade in ordinary cases from a libel, a general allegation of such loss is sufficient, and such allegation may be supported by evidence of such general loss. Weiss v. Whittemore, 28 Mich. 366; Bergmann v. Jones, 94 N. Y. 51. .The trial court did not err in this respect. 4. Defendant offered to show by one of his witnesses that while .one of plaintiffs’ agents was selling the liniment made by them, and prior to the publication of the first circular, the agent represented to the witness that he was an agent for defendant, and selling liniment for him; that the witness had used defendant’s liniment for jears; and that he purchased a bottle relying upon these representations. The evidence was excluded, and this is made the subject >of the tenth assignment of error. • The court held the evidence inadmissible, unless it was first shown that plaintiffs authorized the alleged misconduct, or unless it was first shown that defendant had been informed of it before he published the circular. We need not •decide whether the first part of the alternative proposition was right or wrong, for if either party was prejudiced by it, it was the plaintiffs, not the defendant. The latter part of the proposition was strictly correct. If the proposed evidence was admissible at [144] all, it was on the question of privilege. If the defendant did not know of this improper conduct on the part of the plaintiffs’ agent when he sent out the circular, he was not prompted or induced thereby to act. He could not have believed in or relied upon statements and acts of which he had no knowledge. The misconduct of the agent did not influence defendant to make the defamatory charge found in the circular, and the offered testimony in no manner tended to prove that it was made in good faith and in the honest belief that it was true. For these reasons it was inadmissible, without a further showing. Quinn v. Scott, 22 Minn. 456. As a matter of fact, defendant did produce evidence going to show that, before he issued the circular, he was-informed, believed, and acted upon information which had come to him of the same general nature as that proposed to be shown. 5. When charging the jury, the court gave several of defendant’s-requests pertaining to privileged communications, with the qualification, however, that to be privileged, a communication or publication must be relevant and proper to the facts in hand. Unquestionably, it was defendant’s right to send out circulars containing such language as would advise his customers and put them on their guard against imitations, but the right or privilege was limited to-the reasonable necessities of the case. He had no right to include in such circulars irrelevant and libelous matter, not warranted by the circumstances which had called them out. A publication which goes beyond the occasion exceeds the privilege. Quinn v. Scott, supra. This was the substance of the qualification, and the court was clearly right; and, under the testimony, the question whether or not the communications were privileged was for the jury, not for the court. We see no error in any of the rulings of the court when receiving evidence, and it is apparent that the law of the case was submitted to the jury in an exceedingly concise and accurate manner. Order affirmed. Footnotes [2] Start, C. J., laying tried the case in the district count, took no part.