Lynch v. Febiger

39 La. Ann. 336

• Court: Supreme Court of Louisiana
• Decided: March 15, 1887
• Docket: No. 9774
• Status: Published

Opinion

The opinion of the Court was delivered by

Bekmümoz, C. J.

This is an action in damages for slander, fixed at. $25,000.

In two petitions, an original and a supplementary, elaborately prepared, the plaintiff complains that the defendant has slandered him in his business, as a house painter, misrepresenting him as having adulterated paints purchased from defendant.

Elaborate exceptions and an amplified answer were filed, in which the defendant avers that he, as agent, had sold paints know)) as “ Masury's liquid colors,” under the express condition, previously entered into, that he would use these just as they come from the manufacturers whom he represented, and would put them on properly; that he subsequently discovered that plaintiff had violated the agreement by allowing something to be put into the. colors, and thathe would not sell plaintiff any more of said paints.

The case was submitted to a jury, who returned a-verdict of $500, on which was rendered the judgment appealed from, and of which no amendment is asked.

Twenty-two witnesses have testified.

The contract or understanding was proved, and it, was expressly admitted that the plaintiff had put oil aud turpentine in Masury’s liquid colors.

The proof is also that the defendant made the statements to the plaintiff himself, as well as to parties interested, who had a right to be informed, and whom defendant had a right to approach.

Conceding arguendo, however, that the defendant has not proved the contract and its violation, a question rising superior to those raised in this suit would be: Could not the defendant, without giving any reasons or tendering any excuse, have refused, with impunity, selling paints any further to plaintiff?

It occurs to us that defendant cannot be assimilated to public servants, common carriers, aud to others in similar positions, who are bound to do certain things, aud who may make themselves liable in cases of dereliction of duty and injury to others.

Considering further that it is established that the defendant used the word adulterated when he accused plaintiff with putting in the paint other ingredients, we do not think that it is shown thathe did so with a full knowledge of the whole purpose of the word, which sometimes means to corrupt by some foreign mixture. We prefer, under-the cireumstances, in the absence of any malice shown, to consider that he used the word in the other sense which it has, to alter by intermixing what was Iqgs valuable, such as oil and turpentine.

Even were it otherwise, under the evidence, we are not prepared to say that the addition of those two ingredients did not really constitute an adulteration, which actually corrupted or vitiated the liquid colors, so as to deprive them, when properly used, as received from the manufacturers, of their usual brilliancy and durability.

The testimony, pro and eon, establishes satisfactorily the defeuse.

In refusing the motion for a new trial, the District Judge said that lie eonsiclered the verdict erroneous, and gave reasons in support, as follows:

1st. There was no pioof of any defamatory utterances by defendant other than the statements as admitted in the answer.

2d. It is more than doubtful whether those statements taken in the light of the entire admissions are at all defamatory.

3d. 'I’lie truth of those statements were not only proved beyond a-doubt, but it was admitted in argument that tlie turpentine had been put into tlie paints by plaintiff’s orders.

4th. The existence, prior to the date of tlie alleged slanders, of the contract sot up by the defendant was established.

5th. The. further defense of the qualified privilege set up in the answer was established in each particular ease in which it ’.ya;s pleaded, and it was so pleaded as to each of the statements admitted and proved to have been made.

6th. There was no proof of injury to plaintiff’s reputation.

7th. There was no malice by the defendant. His acts and statements proceeded from the desire to protect Ms interests, not to wantonly injure or annoy plaintiff.

While we consider that the district judge ought to have granted a. new trial, still as the defendant does not complain, we feel justified in passing upon the merits.

With the district judge we think the verdict is erroneous and that, the case is with the defendant.

It is therefore ordered that the verdict of the jury be set aside and that tlie judgment appealed from be reversed, and it is now decreed that there be judgment in favor of the defendant, with costs in both courts.