Labouisse v. Evening Post Pub. Co.

The question we are called upon to decide is: Are the newspaper articles set forth in the complaint as defamatory of the plaintiff, libelous per se, and therefore presumptively false, and entitling the plaintiff to recover, without the allegation or proof of special damage? It is not claimed that the articles referred to affect the personal character of the plaintiff, or are in disparagement of his general reputation; but it is claimed that, being published concerning him in a matter relating to his profession or trade, they are in and of themselves libelous and actionable. The rule of law upon the subject must be regarded as well settled in this state since the case of Moore v. Francis, 121 N. Y. 199 , 23 N. E. 1127 , was decided; wherein it is held that, although no fraud or dishonesty is charged, words written or spoken tending to injure a man in his trade or occupation are actionable, and, unless the defendant lawfully excuses them, the injured party is entitled to recover without the allegation or proof of special damage. It is unnecessary to multiply authorities upon that point. It must be conceded in its widest scope. The question here is, therefore, whether or not these articles are so clear and unambiguous, admitting of but one interpretation and application, that the question of libel or no libel becomes one of law which the court must determine; or, in other words, whether we can adjudge, as matter of law, that the articles complained of necessarily and inevitably tended to injure the plaintiff in his business as a dealer, operator, or speculator in cotton, for, according to his own statement, he buys and sells cotton on his own account, and also as the agent for buyers and sellers, by which allegation is to be understood that he buys and sells both for himself and others in the market on the exchange in the ordinary way in which the operation of trading in cotton is carried on by cotton brokers and merchants engaged in that business.

The articles complained of appeared in a daily newspaper published by the defendant on the 17th of October, 1895; and part of the alleged defamatory matter was contained in one of the columns of the newspaper devoted to trade and business news, and was headed, “The Activity in Cotton.” It referred to the enormous character of the speculation in cotton had on that day, and to the efforts made by certain parties to enhance prices, to the plaintiff as being the leader of a bull movement, to an attempt of the plaintiff to corner the October option of the New Orleans market, and dictate the prices to American and English spinners, and force them to come into the market, and buy freely; and it stated that such an undertaking right in the middle of the harvest was a great menace to the trade. The article then proceeded to state that, when the plaintiff started to bull cotton, he had no idea of seeing the price advance so rapidly or hanging on so long, but that his profits came so quickly and increased with such rapidity that he decided to make a campaign, and double his fortune, or lose everything in the attempt. At the outset, he confined his operations to a few thousand bales per day, but now it

But the complaint proceeds to state that in another article contained in the same newspaper, on the same day, in another column, under the head “Financial,” there was published an account concerning the plaintiff, as follows:

“An utterly reckless undertaking, by a New Orleans speculator, to corner the cotton contract market, fixed In the middle oí last week a pride at which foreign spinners would not buy. The outward movement of cotton, normally heavy at this time, ceased abruptly, and the sterling market was instantly bare of bills. It may be expected, and, in the interest of sound finance, it may he hoped, that the'Labouisse experiment will collapse.”

There is notMng contained in this article charging the plaintiff with unskillfulness or want of capacity in his management of Ms particular business, or that which was intrusted to Mm by his clients. It is not alleged that the Labouisse experiment did collapse, or that he exhibited any incapacity in the transaction of the alleged effort to “corner” the cotton market. The effect of

Again, it is claimed that in another column of the same newspaper, and on the same day, further defamatory matter was contained, in the following words:

“The trading in cotton to-day was again very heavy, and the fluctuations were violent enough to satisfy scalpers with the most pronounced view. Mr. Peter Labouisse, together with his bull clique, although a trifle disfigured from yesterday’s violent break, were still in the ring, and they showed signs of life early in the day, by rallying to the support of the market. Mr. Labouisse and his friends in New Orleans tried to check the decline, by advancing prices in that market, but, as was the case yesterday, the tide was too strong for any one man or set of men to check it.”

This does not charge unskillfulness or incapacity. On the contrary, it states that, notwithstanding the adverse situation and condition of things, Mr. Labouisse and his friends were still in control, and were still enabled to maintain their positions with reference to the operation they were carrying on, although the market was declining upon them.

Here, therefore, we have a case in which a man is conducting a large commercial enterprise, in the form of a speculation, the effects of which may be disastrous to trade generally, but, as affecting his own special calling and his own particular business, is one which, according to these articles, he was virtually successful in carrying on, although the writer of the article apprehended that, from the conditions disclosed, it would end in disaster. Upon the face of the articles, it is manifest that, so far as any deduction can be drawn respecting the position in which the plaintiff was placed, he was successfully continuing this transaction at the time these alleged libels were published. How is damage to his business to be presumed conclusively as a matter of law? Is it to be assumed that customers would be repelled from dealing with him merely because he was carrying on a gigantic transaction, in which he was meeting apparently with success? What a man is entitled to recover damages for in an action of libel, where his personal character and repute is not involved, is damage to his trade and business. The plaintiff is not charged with want of success, nor with unskillfulness, nor with incapacity, nor with dishonesty, but with boldness and apparently successful audacity.

VAN BRUNT, P. J., and INGRAHAM, J., concur.

The plaintiff was not only engaged on his own account, but was acting as agent for others in the purchase of cotton. To say of such a man that he is engaged in “an utterly reckless' undertaking,” which is “a great menace to the trade,” and which, it is prophesied, “will end in disaster,” is not calculated to aid him, or to inspire with confidence those who might desire to employ him in the business of buying cotton. But, without regard to these characterizations of the articles complained of, we think their whole tenor was directly calculated to affect him injuriously in his trade or occupation, and therefore, under the authority of Moore v. Francis, 121 N. Y. 199 , 23 N. E. 1127 , were actionable per se; for, as therein said:

“Although no fraud or dishonesty is charged, words written or spoken tending to injure a man in his trade or occupation are actionable; and, unless the defendant lawfully excuses them, the injured party is entitled to recover, without the allegation or proof of special damages.”

I think the allegation of special damage was not essential to the cause of action, and that the complaint was sufficient, and that the interlocutory judgment was erroneous, and should be reversed, with costs.

WILLIAMS, J., concurs.