Newbold v. J. M. Bradstreet & Son

Alvey, J., delivered the opinion of the Court. This is an action for what is supposed to be a libel published by the defendant, a corporation, of and concerning the plaintiffs in their business as merchants. The plaintiffs are merchants in the city of Baltimore, dealers in glassware, and the defendant conducts a Mer_ ⁴⁹ -cantile Agency in the same city, the object of which is to furnish information to subscribers, respecting the credit and commercial standing of merchants. It appears that the plaintiffs had been for two years prior to January, 1818, subscribers to this agency.

And in addition to furnishing information, as from an intelligence office, of the standing and credit of merchants, the defendant, for the benefit of its local patrons, printed and published a daily sheet or circular, under the title of " Bradstreets’ Daily Sheet of Changes,” devoted to showing the changes and transfers of titles to real and personal property, mortgages, judgments, &c., in the city of Baltimore, This sheet was circulated only among the subscribers to •the agency in the city, numbering, according to the proof, from five hundred to one thousand. In the daily publication of January 15th, 1818, which contained separate •divisions or headings, designated “ Mortgages,” " Chattels,” "Assignments,” "Deeds,” "Releases,” "Judgments,” &e., under the heading “Chattels,” occurred the following: “ Newbold & Sons to J. R. Burns,” without anything more in respect to that entry; and the plaintiffs allege that the meaning of the entry was, and that it was so understood among the subscribers to the •agency, that the plaintiffs had made a chattel mortgage -to J. R. Burns. The declaration contains averments of both general and special damages to the plaintiffs, in •their business as merchants, by reason of the publication. The case was tried upon the general issue plea of not •guilty of the wrongs alleged.

In the course of the trial there were sixteen bills of •exception taken by the appellants, all but the last relating to questions of evidence. The Court finally granted an instruction, that under the pleadings and evidence in the cause, the plaintiffs, the present appellants, were not entitled to recover. ⁵⁰ By the first exception it is shown, that in the examination of one of the plaintiffs as a witness, counsel asked him to state whether there was any usage with the defendant, which gave meaning to the words, “ Chattels, New:' hold & Sons, to J. R. Burns,” as published in the printed sheet of the 15th of January, 1878 ; and the witness, replied that there was such an usage. Whereupon, the witness was then requested to state what was the meaning of the words. To this the counsel of the defendant objected, and the Court ruled that the witness could not give his understanding of the meaning of the words, unless he first showed how he had acquired knowledge of the meaning.

The witness then stated that his firm had been a subscriber to the agency; that he had been in the habit of reading the daily publication in the form in which it was published on the 15th of Jan., 1878 ; that he knew some persons who had given chattel mortgages, and all of those mortgages were published under that head, that Is to say, “ chattels ;” and that he in that way had acquired knowledge of the meaning of the words in question. But the Court was of opinion that the means of his knowledge were not sufficient to enable him to answer the question, and accordingly excluded the answer. The' second exception presents substantially the same question as the first, though in slightly different form. What we say in regard to the first will equally apply to the second.

The general rule doubtless is, that the ordinary popular meaning or sense of the language alleged to be libellous is to be taken to be the meaning of the publisher ; but a foundation may be laid for showing another or a different meaning. And' so where the language is of doubtful meaning or import, or where it fails to convey any explicit, meaning without the aid of extrinsic circumstances. In such cases, something may have previously passed, or ⁵¹ some liabit or usage may liave obtained, that gave peculiar meaning or significance to the expressions employed. When, therefore, it is desired to get at this peculiar or extraordinary meaning of what is alleged to he libellous, the witness should he first asked whether there he any extraordinary or peculiar meaning expressed by the words in question ; and if the answer he in the affirmative, he should then state the means and extent of his knowledge upon the subject of the peculiar meaning of the words ; and if it appears to he adequate, he may then he asked-the question, “What did you understand by the words employed?” This seems to be the settled formula in such cases.

Humphreys vs. Miller, 4 C. & P., 7; Daines vs. Hartley, 3 Exch., 200, 206; 2 Greenl. Ev., sec. 417. It is the same mode of proof as in the cases of libel published in a foreign language, or in cipher; in each of which cases, the witness must first establish to the satisfaction of the Court that ho understood the language, cipher, or symbol employed, before he is allowed to give to the jury his understanding of the libel. This is to prevent the jury being misled, whose duty it is to determine not only the application of the alleged libel to the plaintiff, and to his trade or business, hut its real sense and meaning, and whether in point of fact, the construction put upon the words by the averment of the plaintiff is home Ollt ami supported by the evidence ; for if the words be susceptible of a harmless meaning, it is incumbent upon the plaintiff to show, both by averment and evidence, that they were used and understood in a libellous and not in a harmless or innocent sense.

Homer vs. Taunton, 5 H. & N., 663; Solomon vs. Lawson, 8 Q. B., 823; Hemmings vs. Gasson, El., Bl. & El., 346 ; Goldstein vs. Foss, 4 Bing., 489. How, in this case, we think there was a sufficient foundation laid for the question to the witness, as to what was the meaning of the words used in the alleged libel. The ⁵² witness had been for sometime a subscriber to and reader of the daily publication, and he had known instances of chattel-mortgageshaving been placed under the heading “chattels.” This entitled him to say,' what he understood to be the meaning of the words in question; it being for the jury to determine upon the whole evidence, whether his understanding of the meaning of the words was correct or not. We think, therefore, the Court was in error in excluding the question, and in not allowing the answer of the witness to go to the jury.

And the same ruling should have been