Albert Miller & Co. v. Corte

107 F.2d 432, 1939 U.S. App. LEXIS 2764

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 24, 1939
• Docket: 9065
• Status: Published

Opinions

HUTCHESON, Circuit Judge.

The suit was for libel. The publication was in the Mobile Press, a newspaper published in Mobile, Alabama. This is the Article:

“Baldwin Planter Says State Deal Cut Spud Prices.

Corte says man handling Prison Farm doesn’t care about returns.

By a Staff Correspondent

“Loxley, May 29. — ‘Dumping’ of potatoes from a 1,000 acre state-owned planting at the Atmore Prison Farm today was blamed as a contributory reason for the deplorable condition of the early Irish potato market.

“Ernest Corte, of the firm of A. A. Corte & Sons here, one of the South’s largest produce growing and shipping firms, asserted the Alabama state board of administration had let the huge Atmore planting out on consignment to Albert Miller of Chicago, ‘and he has been dumping the potatoes with no thought of the market. He makes his commission, and doesn’t care about prices.’

“Miller could not be reachéd for a statement.

“Had Contract Last Year.

“(The Corte firm last year had a contract with the board of administration on a share basis for raising potatoes at the At-more and Speigner Prison Farms. They said they took the contract ‘in self-defense,' in an attempt to control shipments and prevent dumping. This year the state planted its own potatoes, and then let the sales out on consignment, Corte said).

“Meanwhile, potato growers all over the South, faced with prices of 70 cents per hundred for No. 1 grade and 20 cents for No. 2's, have appealed to the federal government for aid, and the Surplus Commodity Corporation plans to start buying spuds the first of the week for relief purposes.

"Corte said ‘if potatoes were shipped with some thought to the market price itself, rather than just a commission, several hundred cars daily would not be rolling into Northern and Eastern markets, glutting those centers.’

“Shipping Continues

“Corte and other firms continued to ship potatoes, though not in any great lots, today from Baldwin County, where 18,000 acres of the early variety were planted this year. He said about 3,500 cars have already moved, and he expects another 700 or 800 with shipping to continue another week or so.

“ ‘We can’t quit shipping altogether,’ Corte said. ‘We have to continue, because California, Louisiana, Mississippi, Georgia and the Carolinas are also shipping.’

“Hope For Price Rise

“Prices were 70 and 20 cents Friday, after packing sheds were shut down altogether Thursday. There was a virtual shutdown in the Atmore section of Escambia County today, where hundreds of farmers have thousands of acres of potatoes, aside from the state prison planting. There were a couple of operators digging at Atmore, but most farmers have quit until the first of the week.

“Many Left in Ground

“In Mobile County, the third largest Alabama potato area, there is little shipping, farmers figuring they would rather let the spuds stay in the ground and rot than to lose money digging them.

“Aside from the tuber situation, the cucumber crop quality was improving today, and packers were paying 50 and 30 cents per hamper. Though lack of rain has cut the yield, there is a fair movement.

“Sweet corn is not much, and shippers are not buying the ‘nubbins’ now coming to the market. A supply of good quality corn is expected-to be available for shipment late next week, however.”

The complaint in a single count reads:

“1. Plaintiff claims of the defendants, jointly, separately and severally, the sum of Two Hundred and Fifty Thousand and no-100 ($250,000.00) Dollars damages for falsely and maliciously publishing, or causing to be published of and concerning the plaintiff, in The Mobile Press, a newspaper published in Mobile, Alabama, on May 29, 1937, the following matter, with intent to defame the plaintiff, namely: (Here follows article above quoted.)

“And the plaintiff avers that although the said publication referred to the plaintiff as ‘Albert Miller of Chicago/ the said Albert Miller had long since been dead, and the plaintiff was, in fact and in truth, commonly known and referred to in the trade as ‘Albert Miller’, and was the party to whom reference was made in the said publication. (Here follows jurisdictional averments.)

“And the plaintiff further avers that at the time of the said publication of the said libel and prior thereto the plaintiff was engaged in business in several places, namely, Grand Rapids, Michigan; Waupaca, Wisconsin ; Minneapolis, Minnesota; Grand Forks, North Dakota; Scottsbluff, Nebraska, and Burley, Idaho, and that it was also engaged in Baldwin County, Alabama, in the same business of selling and distributing, in interstate commerce and for compensation, potatoes and other farm products grown in the said county and owned by others, and the said A. A. Corte and Sons were also carrying on the same line of business in the said County in competition with the plaintiff.”

Demurrers, that the article complained of was, as matter of law, not libelous per se, were sustained, and plaintiff declining to plead further, judgment went against him. This appeal tests whether that ruling and judgment is for error.

Much is said in the briefs of appellee about the Alabama decisions and their controlling effect, as though libel in Alabama, were a separate and peculiar thing, governed and controlled there by separate and peculiar laws. Appellant, on its part, insisting that the law of libel in Alabama is the common law as it is known and understood, generally, places its reliance that its complaint states a case firmly on the law as the Alabama decisions have declared it.

We agree with appellant that the law of Alabama as to libel, questions of pleading aside, and there the Alabama practice is in line with simple pleadings generally, is not different from that' generally prevailing. We agree with it too, that tested by the law of libel, as it is understood in Alabama and generally elsewhere, the complaint was not demurrable, the demurrers were wrongly sustained.

Still artificial in some jurisdictions, in some of its aspects, particularly as to form and trappings, the law of libel is, in the main, in most of the states of the union, and Alabama is one of them, in its substance, reasonably simple, understandable and workable.¹

This rule is that it is for the court to determine in the first place, whether the words used, are capable of a defamatory meaning, that is, of being taken -as a libel, and for the jury in the second place, to say, whether the words as applied to the plaintiff, were in fact, a .libel, that is, whether they were understood and taken in a libelous sense. “In determining whether the words are capable of a defamatory meaning, the Judge will construe them according to the fair and natural meaning which will be given them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some uriusual meaning might succeed in extracting from them.” ²

Appellee vigorously argues to us that the Alabama decisions, hold that for a publication to be libelous per se, it must be capable of yielding only one possible meaning, .that is, in effect, if astuteness and ingenuity can read its sting out, it must be held no libel. This will not do. The Alabama decisions in accord with the law of libel as it is generally understood, hold that if the alleged libelous article, read not critically and with a purpose, if possible, to dull its cutting edge, but as the average normal and reasonable person of ordinary intelligence, in the community of the publication would read it, is capable of exerting a damaging effect on an individual or corporation, in his trade, business, occupation or profession, it may not as a matter of law be held, not libelous. Tested by this rule, we think the publication in question here, is not only capable of being libelous as to plaintiff, but as it would be read by the average, normal person in the community whez-e it was circulated, its libel is so plain, that he who ran, may have read it there.

Appellees also seem to argue that because appellant is a corporation, this rule does not apply to it, but we do not understand the law to be so declared, either generally or in Alabama. In the Torts Restatement, the rules generally applicable to suits for libel, are briefly and clearly stated. The Alabama decisions do not in any manner depart from them. These rules are:

“To create liability for defamation there must be an unprivileged publication of false and defamatory matter of another which

“(a) is actionable irrespective of special harm, or

“(b) if not so actionable, is the legal cause of special harm to the other.” Section 558.

“A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Section 559.

“(1) One who falsely, and without a privilege to do so, publishes of a corporation for profit matter which tends to prejudice it in the conduct of its trade or business or to deter third persons from dealing with it, is liable to the corporation under the conditions stated in Section 558.” Section 561.

“One who falsely and without a privilege to do so, publishes a slander which ascribes to another’s conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade, profession, or of his public office whether honorary or for profit, is liable to the other.” Section 573.

“(1) The court determines whether a communication is capable of a defamatory meaning.

“(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.” Section 614,

Under this last named rule it is the function of the Judge to determine whether the communication is capable of bearing the defamatory meaning ascribed to it by the plaintiff, and whether the meaning so ascribed and carried is capable of being defamatory. If the Judge decides the communication is capable of bearing a meaning which may reasonably be regarded as defamatory, there is a further question for the jury, whether the communication was in fact, understood by the recipient thereof, in a sense which made it defamatory. The Alabama cases support the'se rules. Tested by their teachings, it seems perfectly plain that, the publication is capable of carrying the meaning, that the plaintiff was more concerned with getting commissions than with furthering the interests of its client; that, in short, the average normal person of ordinary intelligence might well understand it that way. Cases from Alabama and from the Federal courts fully supporting these views are cited in the margin. ³

The demurrers were wrongly sustained. The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.

Reversed and remanded.

1 Even in those few jurisdictions as in Missouri, Montana, Colorado, South Dakota and Wyoming, where the Constitution provides that “in all suits and prosecutions for libel, the jury under the directions of the court, shall determine the law and the facts,”'the function of the court and jury, is not greatly different in the trial of libel from what it is in other cases. The courts of those states, notwithstanding the constitutional provision, follow the rule that, though libel or no libel is a question for the jury, it is for the court primarily to determine whether the publication is capable of a defamatory meaning, and for the jury to determine whether, if capable of being, it was in fact, libelous. Joseph Diener v. Star Publishing Co., 230 Mo. 613, 132 S.W. 1143, 38 L.R.A.,N.S., 217, cf. Oakes v. State, 98 Miss. 80, 54 So. 79, 33 L.R.A.,N.S., 207, in which as to a similar provision limited to criminal libel, the Supreme Court of Mississippi holds in substance the same thing.

2 Gatley on Libel and Slander, Third Edition, 1938.

3 Advertiser Co. v. Jones, 169 Ala. 196, 53 So. 759; Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788, 789; White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649; Johnson v. Turner, 159 Ala. 356, 47 So. 570; Marion v. Davis, 217 Ala. 16, 114 So. 357, 55 A.L.R. 171; Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 521, 5 So. 332; Age Herald Pub. Co. v. Waterman, 188 Ala. 272, 66 So. 16, Ann.Cas.1916E, 900; Ala.Code 1923, Secs. 7357, 9460, 9531; Maytag Co. v. Meadows Mfg. Co., 7 Cir., 45 F.2d 299; Ætna Life Ins. Co. v. Mutual Ben. Health & Accident Ass’n, 8 Cir., 82 F.2d 115; National Refining Co. v. Benzo Gas Motor Fuel Co., 8 Cir., 20 F.2d 763, 55 A.L.R. 406; Lane v. Washington Daily News, 66 App.D.C. 245, 85 F.2d 822.