Washington Post Co. v. O'Donnell

43 App. D.C. 215, 1915 U.S. App. LEXIS 2599

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 1, 1915
• Docket: No. 2720
• Status: Published

Opinions

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Numerous errors have been assigned, involving the admissibility of testimony, and the granting of instructions in their order and together.

First. There was no error in admitting in evidence the telegram of the Durham Duplex Razor Company offering indemnity for the publication of the libel. It tended to show wilfulness in the publication of the libel. It tended to show wilfulness in the publication by both defendants, and the same ruling- applies to the telegram and letter of Prescott as attorney for the defendant.

Second. The advertising matter of the Durham Duplex Razor Company was admissible. It is true that it was subsequent to the publication of the libel, but it -was in reply to the plea of justification, and tended to show that plaintiff had not attempted to infringe the trademark of the defendant, or to create a false impression in the mind of the public.

Third. No harm was sustained by the defendants by the admission of O’Donnell’s statement of Cron’s conversation. All that it contained was that Cron had received the copy for the advertisement in the office of the Washington Post, and had taken it to Marks, the business manager, who told him to hold it until next day. Marks himself had testified to this conversation with Cron without objection.

Fourth. The court did not err in instructing the jury that the advertisement was libelous. Defamatory words, falsely spoken, which prejudice a party in his business, trade, or profession, are actionable per se. Marino v. DiMarco, 41 App. D. C. 76, 77, 48 L.R.A.(N.S.) 1214, Ann. Cas. 1914D, 1149, and cases cited; Newbold v. J. M. Bradstreet & Son, 57 Aid. 38, 53, 40 Am. Rep. 426; Richardson v. State, 66 Md. 205, 210, 7 Atl. 43.

Fifth. There can be no question about the propriety of the court’s refusing to instruct a verdict for the defendants upon the testimony in this case.

Sixth. There was no support to the plea of justification of. the defendants, and the court did not err in refusing their second instruction to the effect that if defendants, or either of - them, believed the statement to be true, they could award nominal damages.

Seventh. As pointed out by the court in its charge, there was nothing false or fraudulent in plaintiff’s advertisement,. It plainly appeared therefrom that he only offered the Demonstrator razor for 31 cents. There was no confusion with the Durham Duplex razor set in the box, which vras advertised at $5. The Demonstrator was tbe same kind of razor, and just as good as the regular blades in the set, and was intended to represent it to the public.

Eighth. There was no error in refusing the instruction denying the right to recover punitive damages. Nor did the court permit the jury to find a verdict for one kind of damages against one defendant, and another against the other. There was an intimation in the charge that such might be done, but the jury were advised that it could not be so done, and found a joint verdict against both defendants.'

Ninth. The last instruction was to the effect that if the jury found the actual damages were nominal, and no more, they could not award punitive damages. It was not error to refuse this instruction. Russell v. Washington Post Co. 31 App. D. C. 277, 281, 14 Ann. Cas. 820; Press Pub. Co. v. Monroe, 51 L.R.A. 353, 19 C. C. A. 429, 38 U. S. App. 410, 73 Fed. 196, 201; Ferguson v. Evening Chronicle Pub. Co. 72 Mo. App. 462, 466; Prince v. Brooklyn Daily Eagle, 16 Misc. 186, 37 N. Y. Supp. 250, 253; Upchurch v. Robertson, 127 N. C. 127, 129, 37 S. E. 157; Gambrill v. Schooley, 93 Md. 48, 65, 52 L.R.A. 87, 86 Am. St. Rep. 414, 48 Atl. 730.

There are a few authorities that support the proposition of the appellants, but the great weight of authority is against it. Punitive damages being given by way of punishment, there is no reason to hold that there must be actual damage, or something more than nominal damage, to justify their imposition. Punitive damages depend not upon the amount of actual damage, but upon the intent with which the wrong was done.

We find no error in the proceeding, and the judgment is affirmed, with costs. Affirmed.