CHIATOVICH V. HAI\CIIETT.
873
tion of the defendants, was a moral duty. In their omission to perform that duty they proceeded at their peril. Neglect, in such a case, is followed by all the of bad faith. "If," in the language of Knapp v. Bailey, 79 Me. 19'5, 9 Atl. 124, "a party has knowledge of such facts as would lead a fair and prudent man, using ordinary caution, to make a further inquiry, and he avoids the inquiry, he is chargeable with notice of the facts which, by ordi· nary diligence, he would have ascertained. He has no right to shut his eyes against the light before him. He does a wrong in failing to heed the signs and signals seen by him. It roay be well concluded that he is avoiding notice of that which he, in reality, believes or knows." These marts of trade are, in many respects, greatly beneficial to the interests of mankind. They balance, like the governor of an engine, the otherwise erratic course of prices. They focus intelli· gence from all lands, and the prospects for the whole year, by bring. ing together minds trained to weigh such intelligence and to fore· cast the prospects. They tend to steady the markets more nearly to their right level than if left to chance or unhindered manipula· tion. Nor are the purchase and sa Ie of futures intrinsically wrong. They are the means of bringing about those stable and steadying results. But the tendencies and excesses of human nature--its susceptibility to warp in the fierce heat of excitement or distressare facts to be heeded by the broker as well as by the public. He may not close his eyes to probabilities, or even strong possibilities, that are patent to the rest of mankind. If be does. the law rightly makes him accountable to those who thereby innocently suffer.
CHIATOVICH v. HANCHETT et al. (CirCUit Court, D. Nevada. July 11, 1898.) No. 634.
L
LIBEL AND Br.ANDER-AcTTONABLE WORDS.
A notice to the of a firm that a merchant was to the firm. and requesting them to refrain from disclosing to him anything concerning their business. and saying, further, "And his expressed Intentions being to hinder and embarrass us sUII further. * * * we especially request our to refrain from with him, E'lther directly or indirectly, * * * and sug-g-est that no one of our agents, representativE's. or employi"s trade or deal with him In any manner Whatever." is actionable, if cbarged with proper innuendoes. A charge that defendants "meant and Intended to convey" certAin ideas by certain words is a sufficient Innuendo, altbough it would be better pleading to aver, In direct terms, that the language was 80 understood by the persons reading It.
.. BAME-PLEADTNG-INNUENDOES.
8.
SAME-PLEADTNG-DAMAGES.
An avel'ment 'that certain named persons were induced to discontinue dealing with plalntltf. whereby he was damaged In a certain sum, il a sufficient allegation ot special damages, without stating the purchases ot each Individual, or how much plaintltf would have profited In the aggregate but tor tbe libel. '
874 .. SAME-DEMURRER.
88 FEDERAL REPORTER.
The quest!onwhether or not defendant caused the libel to be published is a question to be determined from the eVidence, and not upon demurrer.
This was an action fol' libel,heard on a demurrer to an amended complaint. M. A. Mur:phy and Robert M. Olarke, for plaintiff. Reddy, Campbell & Metson and Torreyson & Summerfield, for defendants. .. HAWLEY, District Judge (orally). The amended complaint, after stating that the plaintiff is, and for more than 25 years last past hal been, engaged in business as a merchant at Silver Peak, Esmeralda county, Nev., arid'during all that time maintained a good reputation for fair dealing, and has conducted and demeaned himself with honesty and fidelity, alleges: "(2)· That on or about the 1st day of June, 1896, at Silver Peak, Esmeralda county, state of Nevada, the defendants, L. J. Hanchett and L. E. Hanchett, did cause to be typewritten, posted, and circulated, In and around said town. the follOWing words. of and concerning this plaintiff: .. 'Notice to Our Employlls. .. 'As John Chlwtovich entertains for us feelings of animosity, and as his actions have tended to Interfere with our business, and his expressed Inten· tlons are to hInder and embarrass us still further, we deem it advisable, In our own Interest, to abstain from all communication with him. We aspeclallYl'equest our empioylls to refrain from associating with him, either directly or indirectly, and to disclose to him nothing that might. tend to In· dicate the present condition of our business. We caution all against so doing, and recommend a tootal absence of aU communication. We trust that our employes wIll further our Interests in this matter, which demand a total eession of communication between us and him. We respectfully enjoin our people silence concerning ourselves, our busIness, and our propl'rty, and suggest that no one of our agents, representatives, or employ.es trade or deal with Chiatovich in any manner whatsoever. His interests are so antago. nistic to ours-his purpose is so manifestly hostile-that those Who favor him cannot complain if we consider them !is equally unfriendly to us. ·· 'I,. J. Hanchett, L. E.H.' -"Which are the Initials of L. E. Hanchett, the defendant above named. "(3) That the defendants meant thereby that this plaIntiff was circulating false and malicious reports of and concerning the busIness of these defendants, and their manner and methods of conducting the same; and that this plaintiff's conduct and manner of doing business was such that he was not a fit or proper person for his neighbors to associate, comm\micnte, or trade with. . "(4) That the sRid. words, so typewritten, published, posted, circulated, and read, were a malicious, a?d defamatorr libel, so written, pub. lished, posted,' and. circulated wrongfully and maliciously, by which the defendants wished and intended to and dId convey the and to have It understood and believed by those who would read, and did read, said notIces, so posted and circulated, that the plaintiff was dishonest, wanting in probity, untruthfUl, and was wholly unfit and unworthy for hIs neighbors and friends to assocIate or communicate wIth him; and that his place of busIness was not a 11t or proper place for the cltlzens and residents of the town of Silver Peak, and the neIghborIng valleys, towns, and minIng camps; to resort to. or to do business In; and by means thereof the plalnt\lI .hl!-s .been and Is. greatly Injured' and prejlfd'ICed In his good .name, reputation, and credit, aforesaId, . to his damage In the sum of $10,000." . '
'. The complaint further,alleges, in .8ubsta,nce, at the time.said notice was published the plaintiff's business was profitable, and that
CHIATOVICH V. HANCHETT.
875
in consequence of the publicatil)n of said notice his business was greatly injured; that all the employes of defendants, about 50 in number, whose names are given, quit trading and dealing with him, and withdrew their patronage, to his damage and loss in the sum of $10" 000. To this complaint the defendants interpose a demurrer upon the following grounds: "(I) That the notice alleged to hue been posted, published, and circulated by defendants i8 not libelous 01' defamatory of plaintiff, and does not tend to impeach the honesty, integrity, virtue, character, or reputation of plaintiff, and does not tend to expose plaintiff to public hatred, contempt, or ridicule, nor does it set forth facts sufficient to constitute libel. "(2) That the language of the Rotice alleged by plain<tiff to be lihelous is nonlibelous per se, and is incapable of a construction injurious to plaintiff's character or business, under the ordinary rules of accepted meaning of the English language, and is incapable of being extended in Its meaning by colloquium or special averment. "(3) That it does not show that the defendant L. J. Hanchett caused to be typewritten, posted, published, or circulated the alleged libelous notice set forth in plaintiff's amended complaint. "(4) That it does not show that defendant L. E. Hanchett was authorized or instructed to sign or publish or print or post the said alleged libelous notice set forth In plaintiff's amended complaint. . "(5) That said amended complaint does not state the aggregate amount of purchases, or eacIi individual amount, that the persons named In plaintiff's amended complaint would have purchased from the plaintiff, nor how much plaintiff would have profited In the aggregate, or from each verson individually, had it not been for the alleged libelous notice set forth in plaintiff's amended complaint."
It is admitted b.y the plaintiff that the defendants had the right to give notice to their employes that plaintiff entertained feelings of animosity against them, and that they deemed it advisable to abstain from all communication with him, and to make the request that their employes should not disclose to him anything concerning the present condition of their business, and to keep silent concerning themselves, their business and their property. But the other portions of the notice are specifically claimed to be libelous. The most objectionable phrases being: "And his expressed intentions are to hinder and embarrass us stilI further. · · · \Ve especially request our employes to refrain from associating with him, either directly or indirp-ctly, * · · and suggest that no one of our agents, representatives, or employes trade or deal with Chiatovich in any manner whatsoever."
Touching the merits, two main questions are presented: (1) Is the language used in the notice susceptible of any construction which would subject the plaintiff to public contempt, hatred, ridicule, or obloquy? (2) Is it susceptible of any construction which would impute to plaintiff any dishonesty in his dealings, impeach his credit or stand· ing, or injure him in business as a merchant? 1. In Odgers, Lib. & Sland. 21, the author says that, in cases of libel, "any words will be presumed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, which tend to in. jure him in his profession or trade, or cause him to be shunned or avoided by his * * * and * * * all words * * * which, by thus engendering an evil opinion of him in the minds of
876
88 FEDERAL lUilPORTER.
right-thinking men, tend to deprive him of friendly intercourse aud society." Bailey v. Holland, 7 App. D. C. 184, 189; Rider v. Rulison, 74 Hun, 239, 26 N. Y. Supp. 234; Morey v. Association, 123 N. Y. 207, 210, 25 N. E. 161; Byram v. Aikin (Minn.) 67 N. W. 807; Baker v. State (Neb.) 69 N. W. 749, 751; State v. Norton, 89 Me. 290, 293, 36 Atl. 394; Newell, Defam. 67, 77; 'fownsh. Sland. & Lib. § 21, notes; 13 Am. & Eng. Ene. Law, 299. In the present case it is unnecessary to determine whether the portions of the publication to which the innuendoes relate are libelous per se or not. If libelous per se, there would be no need of any innuendoes (Turton v. Recorder Co., 144 N. Y. 144, 148, 38 N. E. 1009); and, if an innuendo was necessary, it is found in the complaint. The question to be decided is whether 01," not the language used in the notice is susceptible of the construction placed upon it by the innuendoes of the complaint. Words must be construed with reference to their natural sense and ordinary meaning. Morgan v. Halberstadt,9 C. C. A. 147, 60 Fed. 592, 594; Dun v. Maier, 27 C. C. A. 100, 82 Fed. 169, 173; Bettner v. Holt, 70 Cal. 270, 274, 11 Pac. 713. The language of the publication should not be forced beyond its ordinary meaning, in order to make it libelous. The courts do not seek to find an innocent meaning for words prima. facie defamatory, and should not attempt to put a forced construction on words which by any reasonable construction may be fairly deemed harmless. Publishing Co. v. Mullen (Neb.) 61 N. W. 108. Nor will innuendl'les be allowed to enlarge the meaning of the words. Dun v. Maier, 27 C. C. A. 100,'82 Fed. 169,172; State v. Boos, 66 Mo. App. 537; Townsh. Sland. & Lib. § 342. The language of the notice is to be construed by the court in the sense in which the community at large might understand it, giving to the words used their ordinary meaning. The sense in which words are received by the world is the sense which courts of justice ought to ascribe to them. But it is always admissible to aver and prove that words alleged to be defamatory, which have a covert or ambiguous meaning, were intended and used with the .object of defaming plaintiff, and were understood in that sense by :those who read them. Maynard v. Insurance Co., 34 Cal. 48, 59; Edwards v. Publishing Soc., 99 Cal. 431, 435, 34 Pac. 128; People v. 'Collins, 102 Cal. 345, 36 Pac. 669; Mattice v. Wilcox, 147 N. Y. 624, 0633, 42 N. E. 270. If the words published are fairly capable of two meanings, one harmless and the other defamatory, it is a question for the jury to determine from the evidence in what sense the persons to whom the notice was addressed, or persons who read the same, may have understood them. Twombly v. Monroe, 136 464, i68; Publishing Co. v. Hallan, 8 C. C. A. 201, 59 Fed. 530, 539; Newell, D fam. 290; Odgers, Lib. & Sland. 94, 539, 544. Applying these general principles to the case in hand, I am of opinion that thewords used in the objectionable paragraphs of the notice might be susceptible of the, meaning charged in the innuendoes of :he complaint. Whether the publication was made as charged, or whether it was justified by the circumstances under which it was made, can only be properly determined when the facts in relation thereto are fully disclosed' and presented to the court and jury. I am also of
S7'i
the opinion that the averments in the innuendoes, as to the understanding of the parties reading the same, is sufficient, although it would have been better pleading to have averred in direct terms that the language was so understood by the parties to whom the notice was addrel'lsed. 2. Touching the second question, it seems clear that the tendency of the publication was to injure the plaintiff in his business as a merchant. The employes of the defendant must have understood the suggestion in the notice for them not to "trade or deal with Chiatovich in any manner whatsoever" as a notice that, if they did, they must abide the consequences of a discharge, because the notice further states that "his interests are so antagonistic to ours-his purpose is so manifestly hostile-that those who favor him cannot complain if we consider them as equally unfriendly to us." The law guards with jealous cal'e the rights, privileges, property, and business of every person. It is well settled that damages may arise, not only out of injuries to the person, to his health, his liberty, or reputation, but also out of injuries to his property or his business. Any wrongful invasion of either is a violation of his legal rights. As a general rule, it may be said that every person has an absolute right to refuse to have any business relation with any particular person or persons. This proposition, however, in so far as it applies to cases like the present, must be confined and limited to the individual action of the men who assert the right. It is not true in law-although some authorities to that effect may be found-that one person having the right himself may, from his ill will, malice, revenge, or other evil motive, influence other persons to do the same thing. 'l'here are, of certain distinctions between damages caused by mere rivalry in business, without the intention of injuring the trade of the plaintiff, and those where such intent is shown with personal malice towards him,questions which mayor may not arise upon the trial of tbis case, but have nothing to do in determining the mere sufficiency of the averments of the complaint. . In Walker v. Cronin, l{)7 Mass. 555, 564, the court said: "Everyone has a right to enjoy the fruits and advantages of his own enterprise, industry, sklll, and credit. He has no right to be protected against competition, but he has a right to be free from malicious and wanton Interference, disturbance, or annoyance. If disturbance or loss ('orne as a result of competition, or the exercise of like rights by others, It is damnum absque injuria, unless some superior right, by contract or otherWise, is interfered with.: But if it come from the merely wanton or malicious aets of others, without the justification of competition, or the service of any interest or lawful purpose, It then stands upon a different footing, and falls within the principle of the authorities first referred to [which hold parties liable for the damages Incurred]."
In Railway Co. v. Greenwood, 2 Tex. Civ. App. 76, 80, 21 S. W. 559, 561, where the questions involved bear directly upon this point, the court said: "Did appellant the right to prohibit Its servants from patronizing appellee's hotel and saloon? If, In Issuing the order or threat, it only exercised a legal right, it may be admitted that appellee cannot complain, though 'it resulted in loss to him, whatever may have been the motive with which the act was done. If appellant would have had the right to discharge Its serv-
878
88 FlllDERAL REPORTER.
ants for doIng the forbidden things, then It must follow that it could law· ftilly Dotif;yl,them that It would exercise It. !thad the same right to dIscb.arge its all masters have under similar conditions. This right was not t9 servants, or but for reasonable causes, oUly.Were' the a'cts, the doing of ,which,appellant declared to its servants should be the cause of their discharge, such as would justify the action which was threatened?, The allegation Is that tht:! emplo;ylls were threatened with dIscharge if they 'In any way patronized plaintiff, either by eating lit his house oj.' drinking at his bar.' We think it too plain that, all thus stated. there would have been no just ground for discharging the servants for doing what they were thus forbidden to do. This is charged to have been done maliciously, with Intent to injure plalntlli. The employes, presumably, had the l'ight to eat and drink where they chose, so long as they violated no contract with their employer and performed their service well, and the malicious lise Of such moral coercion upon them' by ,the appellant as this petition alleges, for the purpose of Injuring appellee, was wrongful, and made appellant liable for such damage as was therebY ' Appellant did not have the right to Intentionally Induce others to abstain ,from patronizing appellee, ex' ' ' cept for a legitimate purpose.'"
'1'begeneral tendency of the authorities is to the effect that pub· lished words which tend to injure a man in his trade, business, or occupation are actionable and libelous per se, and, Q.nless the defendant lawfully excuses them, the injured party is entitled to recover without any, allegation or proof of special damages. Easton v. Buck {Sup.) 48N. Y. Supp. 158, 160; Moore v. Francis, 121 N. Y.199, 204, 23 N. E. 1127; Mains v. Whiting, 87 Mich. 172, 180, 49 N. W. 559; Landonv. Watkins, 61 Minn. 137, 143, 63 N. W. 615, 617; Newell, Defam. 192 et seq. In Moore v. Francis the court said: "The principle is clearly stated by Bayley, J., In Whittaker v. Bradley, 7 Dowl. & R. 649: 'Whatever words have a, tendency to hurt, or are calcu" lated to prejUdice, a man WhO, seeks his livelihood by any trade or business, are actiona):>le.' When proved to, have been spoken in relation thereto, the action Is supported, and, unless the defendant shows a lawful excuse, the plaintiff Is entlded to recover without allegation or proof of special damage, because both the falsity of the' words and, resulting damage are presumed."
In Landon v. Watkins the court said: proper allegations In'the complalnt,-and there were such in this,evidence of general diminution' 'of profits and a loss of trade Is admissible In an action for libel. Newell,Defam. 864; Starkie, Sland. & Lib. 313, 486 (426,647). When the Injury complained of IS,II.I08s of trade in ordinary cases from a libel, a general allegation of such loss Is sUflicient, and such allegation may be supported by evidence of such general loss."
But in this case special damages are alleged. The averments in the complaint with reference thereto are sufficient, without stating the aggregate amount of purchases by each individual, or how m.uch plaintiff would have profited in the aggregate had it not been for the Defam. alleged libelous notice. Odgers, Lib. & Sland. 314; p. 867, §.§ ,41, 42. 3. The questions whether L. J. Hanchett caused the notice to be ;PUblished, or whether L. E. Hanchett was authorized to publish the notice" are matters to be determined from the evidence. The de,murrer is '
KARSH ,V.
STATES.
879
MARSH v. UNITED STATES. (DIstrict Court, N. D. Florjda. May 16, 1898.) L CLERKS' FEES-METHOD OJ.!' COMPUTING FOLIOS,
although they may relate to the same case, and be entered under the same caption. 2. 8. SAME.
ot an order ot court requiring the proceedings to be entered, not In the form ot a mere recital, but each order, motion, and proceeding in a paragraph separate from others under the, same the clerk Is entitled to charge 15 cents tor each ot said separate· orders, motions, etc.,
Where the journal entries in: criminal cases are made up lil pursuance
'l'he clerk Is entitled to a tee ot 10 cents for each person sworn under direction of the court in order to determine his qualification as a juror.
SAME.
The clerk is entitled to a fee of 15 cents per folio for the entry ot orders 'for the removal of United States prisoners from a jail in which they had been committed, under mittimus of a commissioner,'to await trial, to the jail of the place where court is to be held tor their trial, and for such a number of certified· copies as the court may direct the clerk to deliver to the marshal, and for filing and entering the return of said order by the marshal, and for entering in the journals of the court orders remanding, and for the production of prisoners tor sentence. The clerk Is entitled to a fee of $1 tor Issuing a prrecipe to a jury commissioner, which is .in the nature ot a summons, and the only method, under existing rules ot court, to procure his attendance for the drawing of the jury. The clerk, when reqUired by rilles of court to keep such a record, is entitled to a fee of 15 cents for the record memorandum in his record book known as the "Clerk's Combined Docket," in addition to the filing tee of 10 cents for each paper, and the regUlar docket fee. The clerk is entitled to II fee of 10 cents for swearing, 15 cents for the jurat, and, where there has been no express waiver, 20 cents for the seal of the court attached to affidavits taken before him. The requisition for a duly-certified copy of any particular record In possession of the clerk ordinarily requires the formality of a seal to tlie certificate; and, unless there has been an express waiver thereot, the clerk should attach the same, and is entitled to his fee therefor. The clerk is not entitled to cbarge for seals to copies of orders on the marshal. to procure meals for the jury. as such seals have been waived by tbe department. The clerl!: is entitled to a fee of 15 cents for preparing orders of court, when directed by the court so to do.
"
SAME-PRAl:CIPE TO JURY COMMISSIONER.
ll. SAME-MEMORANDUM RECORD OJ.!' ENTRY AND FILING OF PAPERS.
S.
SAME-SEALS.
'1. SAME-CERTIFIED COPIES AND SEALS.
8. SAME.
9.
10. SAME.
The clerk is entitled to a fee for making certificates to attach to the marshal's (lccount, relative to the method ot the issuance of bench warrants, as these were required by the department In proof of said accounts. .·clerk Is .entltled to charge for attachIng duplicate jurats to the duplicate accounts of the deputy marshals, where the oath haa been taken befol'ehlm aa'to theSe vouchers in the' 'marshal's account.
11.
BAME.
12. I BA1II£. " " ".' 'Fhe marshal's are required to be made ·In· dupllcate; 'ani! this ,b,ul!'ude. all oaths, copies of orders, and incidental proot as the departmeut,