884 



HORTICULTURE 



December 30, 1916. 



MAKING FALSE STATEMENTS. 



The Penalty for Speaking Falsely of a 



Competitor or of a Business Man 



Not a Competitor. 



I have received the following through 

 a Western paper: — 



1 have read in magazines from time to 

 time of the penalties for varioua legal 

 offenses but have never had the pleasure 

 "fread ng what the penalty is, or should 

 be. it one man should knowingly send out 

 a false statement that would have a ten- 

 deiicv to destroy the credit of another 

 For Instance I know a watchmaker and 

 l;^veUr in a country town who iBfnjaB er 

 if his profession, has a J<;»elry store that 

 is a credit to the town-in fa?t; "'« re is 

 .,tore the town has ever 'i=''l- "'1^ hflls 

 n.iiil for and he discounts all his t>i"3- 

 Vow if know ng the facts as I do, I should 

 puldisU the story that this man carHes 

 I^n Mfock does not always pay his bills 



S;^';L^'iup';l.n'e "Jourt^^dec?s?ons applicable 

 to such a case, or what is the law pertain- 

 ing to such an offense.' 



This correspondent asks about a 

 jeweler, but I suppose I need not say 

 that the legal principles involved 

 here are the same no matter what line 

 it is. 



The correspondent seems to have an 

 idea that the offense he speaks of is 

 in itself a criminal offense, s^eparate 

 and distinct from other libels. That 

 is not the fact. Aspersing the credit 

 of a solvent merchant, or his ability 

 as a master of his craft is a civil of- 

 fense, and it may even be a criminal 

 offense, but it is merely one of the 

 class of punishable libels or slanders. 



There are three aspects of such an 

 offense: 



1— The criminal libel (or slander) 

 aspect. 



2— The civil libel (or slander) as- 

 pect. 



3-Misuse of the United States 



mails. 



Such an offense could offend against 

 the law in all three respects. It it 

 offends against the first and third it 

 would be punishable with fine or im- 

 prisonment; if it offends against the 

 second it would be penalized by the 

 payment of damages. 



If the defamatory statement is writ- 

 ten, it is libel; if spoken only, it is 

 slander. 



Consider No. 1. I question very 

 much whether the language which 

 this corresi)ondent sets forth would be 

 criminal libel at all. A man may be 

 guilty of criminal libel though he 

 speaks only the truth. The theory is 

 that criminal libel tends to a breach 

 of the peace, and it is therefore im- 

 material whether the thing said is 

 true or not. But even if false it must 

 be something pretty strong — stronger 

 than this, in my judgment. 



As to No. 2, this might or might 

 not be misuse of the mails, and a 



criminal offense under the United 

 States laws. Sending through the 

 mails any matter which is "libelous, 

 scurrilous, defamatory, threatening, or 

 calculated in any way to reflect in- 

 juriously upon the character or con- 

 duct of another," is misuse of the 

 mails. But the matter must be ex- 

 posed to the public gaze. It it is 

 sealed inside of an envelope or a wrap- 

 per, it makes no difference how libel- 

 ous it is, it is not misuse of the mails 

 and the postal authorities will take 

 no notice of It. 



If this correspondent wrote the 

 above on a postal card, he might or 

 might not be guilty of misuse of the 

 mails. I say he might not, because 

 this language is a little weak for a 

 criminal offense, in my judgment. 



What this offense really is, is trade 

 libel, a civil offense only. The law is 

 pretty uniform about trade libel 

 throughout the United States. Words 

 which when spoken or written of an 

 ordinary individual might not be slan- 

 der or libel at all, would at once be- 

 come so if spoken of a man in con- 

 nection with his business, trade, pro- 

 fession or calling. A good definition 

 of trade libel is— "any words spoken 

 or written of a person in his office, 

 trade, profession, business or means of 

 getting a livelihood, which tend to ex- 

 pose him to the hazard of losing his 

 office or |)osition, or which charge him 

 with fraud, indirect dealings, or in- 

 capacity." Such statements can be 

 sued for even if no damage has oc- 

 curred, because they tend to injure 

 him in his trade, profession or busi- 

 ness. In other words, the charge must 

 be such that it true, would render him 

 less qualified to carry on his business. 

 The law is especially tender with 

 the reputations which men have won 

 in business and will sharply punish 

 anybody who destroys or injures them. 

 To falsely say that a business man is 

 in financial difficulty, or is dishonest, 

 or a fraud, or has been guilty of any 

 other practice which if true would 

 make him a poorer manufacturer, mer- 

 chant, clerk or artisan than he would 

 otherwise be, is to be guilty of trade 

 libel. 



There is a case which holds that it 

 is not a trade libel to say that a mer- 

 chant does not pay his debts, because 

 even if he didn't he could still be a 

 first-class merchant so far as the pub- 

 lic was concerned. But where you 

 run him down generally — say that he 

 has a poor store, doesn't keep a stock, 

 and in fact is a poor, one-horse mer- 

 chant besides not paying his debts, 

 you paint a picture of slackness, in- 

 efficiency, and poor credit, which any 

 court would almost certainly call a 

 trade libel. Always provided, of 



course, that it was untrue. If true, 

 it is not a civil libel at all. 



If the court held it to be a trade 

 libel, it would allow damages even 

 though no actual damages were suf- 

 fered. The libel law knows two sorts 

 of damages, general and special dam- 

 ages. Special damages are actual 

 damages— those which do not neces- 

 sarilv follow from libel, but which 

 may follow. It they have followed, no 

 matter what the circumstances, they 

 can be collected. An example would 

 be where ope merchant, speaking of 

 a competitor, said to one of the lat- 

 ter's customers, "he is notorious in 

 the trade for the shoddy goods he 

 sells," and the customer, believing it, 

 took his trade away. In many cases 

 no damages except those which have 

 actually happened, such as the above, 

 or the loss of a position or of a con- 

 tract, can be collected. If no damages 

 can be proven, none can be collected. 

 But in trade libels it is not neces- 

 sary to prove special (actual) dam- 

 ages; the law allows what it calls 

 "general damages." General damages 

 are those which the law holds neces- 

 sarily follow from the Speaking or 

 writing of false words about business 

 men. In other words, if I say to a 

 jobber, speaking of a retailer, "I con- 

 sider him financially weak," the law 

 considers that I have inevitably done 

 that man some injury — that I have In 

 part destroyed the good opinion which 

 the jobber had of him, even if the job- 

 ber did not take any business notice 

 of what I said. Therefore, because 

 there is this inevitable injury, which 

 cannot be estimated in money, the 

 jury which tries such a case will be 

 allowed to give the plaintiff such a 

 sum as it thinks will make him feel 

 good again. This is the sort of dam- 

 ages which can be recovered in ac- 

 tions for trade libels. 



(Copi/ru/ht. October. 1916, by 

 Elton J. Buckley.) 



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