DUN et al. v. MAIER et al., 82 F. 169

MAXEY, District Judge, after stating the case, delivered the opinion of the court. The ninth specification of error challenges the correctness of the action of the circuit court in overruling the demurrers of the plaintiffs in error to the original declaration and to the three amendments thereof.

The demurrer to the original declaration contains seyeral grounds of objection; inter alia, the two following: (1) “The language of the alleged libel as stated is not libelous per se, and there is no averment in the petition of special damage to the petitioners by reason of the alleged publication of it.” (21 “The innuendo is null and void, inasmuch as it undertakes to enlarge and wholly change the meaning of the words of the alleged libel as set out in the petition.” The question presented for consideration is whether the words used in the publication are libelous per se.

If they are, the uniform current'of authority, authorizes the recovery of general damages, and no special damage need be averred. If, however, the words published are not actionable per se, it was incumbent on the defendants in error to make the necessary averments of special damage to warrant a recovery. Stone v. Cooper, 2 Denio, 293: Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 357; Newbold v. The J. M. Bradstreet & Son, 57 Md. 38; Hirshfield v. Bank, 83 Tex. 452, 18 S. W. 743; Goldberger v. Grocer Pub. Co., 42 Fed. 42; Walker v. Tribune Co., 29 Fed. 827; Townsh.

Sland. & L. § 289; Odgers, Sland. & L. 290, 291; 13 Am. & Eng. Enc. Law, 434, 435. It is alleged in the declaration that the plaintiffs in error published in the Mercantile Agency Weekly Change Sheet, and circulated among their subscribers, the following false statement as to the defendants in error: "Atlanta: Maier & Berkele: M. Berkele gives R. E. deeds, $4,100.

Jewelry;” “meaning thereby,” the declaration further alleges “that said firm was in the jewelry business, and that the Berkele thereof had conveyed to others real estate belonging to him of-the value of $4,100, and thus diminished to such an extent the property accessible to creditors of said firm for the payment of debts due them.” The publication of the words set out in the declaration is admitted by the demurrer, and it is conceded by counsel for the plaintiffs in error that, by the use of the words appearing in the Weekly Change Sheet, the plaintiffs in error intended, as the innuendo charges, to convey the meaning that M.

Berkele was a member of the mercantile firm of the defendants in error, and that he had conveyed real estate of the value of $4,100. But the effect attributed to the words in the concluding part of the innuendo is denied by the plaintiffs in error, who insist that the words are innocent in themselves, and do not imply that Berkele, by the sale of real estate, had diminished to any extent the property accessible to his creditors.

And they further contend that the court cannot presume that the words, as ordinarily and properly understood, would injure Berkele or the defendants in error in their business, or reflect upon their character as merchants. “It is the office of an innuendo to define the defamatory meaning which the plaintiff sets on the words, to show how they came to have that defamatory meaning, and also to show how they relate to the plaintiff, whenever that is not clear on the face, of them. But an innuendo may not introduce new matter, or enlarge the natural meaning of words.

It must not put upon the defendant’s words a construction which they will not bear. If the words are incapable of the meaning ascribed to them by the innuendo, and are prima facie not actionable, the declaration will be held bad on demurrer, or if there be no demurrer, the judge at the trial will stop the case." Odgers, Sland. & L. 100, 101; 13 Am. & Eng. Enc. Law, 463, 464; Townsh. Sland. & L. § 335. See, also, Railway Co. v. McCurdy, 114 Pa. St. 554, 8 Atl. 230; Stitzell v. Reynolds, 59 Pa. St. 488.

The question is, do the published words, giving than their natural’and ordinary meaning, bear the construction ascribed to them by the innuendo? To publish of a merchant anything which imputes insolvency, a fraudulent disposition of his property, or a want of integrity in his business, is libelous per se, because the publication, in legal contemplation, tends to injure his business credit and standing. Newbold v. The J. M. Bradstreet & Son, supra. But, as properly said by Chancellor Walworth in Stone v.

Cooper, supra: “It is not every false charge against an individual, even when the same is deliberately reduced to writing' and published to the world, which is sufficient to sustain a private action to recover a compensation in damages as for a libel. * * * To sustain a private action for the recovery of a compensation in damages for a false and unauthorized publication, the plaintiff in such action must either aver and prove that he has sustained some special damage from tlie publication of the matter charged against him, or the nature of tlie charge itself must be such that tlie court can legally presume he has been degraded in the estimation of his acquaintances or of the public, or has suffered some other loss, either in his properly, character, or business, or in his domestic or social relations, in consequence of tlie publication of such charge.” In the present case tlie words published are harmless in themselves, and have a plain and unambiguous meaning.

They certainly do not directly inqmte to Berkele any fraud, dishonesty, or misconduct in the management of his business, or in any matter connected therewith; and it would require a strained and unnatural construction of the words for the court to presume that their tendency was to injure Berkele, much less the firm of the defendants in tírror, in his business as a merchant.

Tlie legal presumption is in favor of honesty and uprightness in business transactions, and the adoption of the construction placed by ihe defendants in error upon the words in question would require a reversal of that salutary rule, and stamp as dishonest and fraudulent a sale of real estate, simply because it was made by a person engaged in mercantile pursuits. We refrain from going to that extent, as we appreciate too highly the value of commercial character, and the necessity of preserving it untarnished.

Upon this branch of the case our conclusion is that the matter set out in the declaration as defamatory is not libelous per se, and that special damage should have been averred, to authorize a recovery. This conclusion is clearly supported by the cases of Newbold v. The J. M. Bradstreet & Son, 57 Md. 38, and Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354, to which we refer. In reference to the action of the circuit court in overruling the demurrers to the three amendments of the declaration, little need be said.

While the demurrers were formally overruled, the court stated, during the progress of the trial, that the question of special damages would be withdrawn from the jury, and the charge of the court instructed them to award general damages only. Although the action of the court in overruling the demurrers to the amendments-was erroneous, because the damages therein claimed were too reinóte to be considered, and it was so conceded by counsel for defendants in error on the argument, it was harmless error, resulting in no injury to the plaintiffs in error.

As a matter of correct practice, however, the demurrers should have been sustained. In view of the disposition which we have made of the demurrers to the original declaration, we deem it unnecessary to discuss other questions argued by counsel. For the error of the circuit court in oyerruling the demurrers of the plaintiffs in error to the declaration and amendments thereof, the judgment is reversed and the cause remanded. Reversed and remanded.