Ellsworth v. Martindale-Hubbell Law Directory, Inc.

NUESSLE, J. Plaintiff alleges that the publication of his name with its attached marking in said 1929 Edition of Martindale's American Law Directory by said Defendant, was untrue and false and was so printed and published by Defendant with the willful, wrongful, malicious and libelous purpose and intent on the part of said Defendant, of defaming, derogating, and vitally injuring Plaintiff in his practice, character, reputation, and business, exposing him to contempt, ridicule, and obloquy, causing him to be shunned and avoided in a business way, and injuring him in his occupation, and causing prospective clients to send their business to others, without any justifiable reason or cause therefore. That as a matter of fact, at the time of said publication in the 1929 Edition of said Directory, Plaintiff was justly entitled to be rated according to the system developed by Defendant, in legal ability as 'a'; recommendations as 'v'; in Estimated Worth as '5'; and in Promptness in paying Bills as 'g'. That by reason of the printing and insertion by Defendant in said 1929 Edition of Martindale's American Law Directory of said false and malicious, libelous and defamatory 'rating' against his name and the publication of said volume by said Defendant and the wide circulation and distribution of the same by said Defendant throughout the United States and Canada, and the understanding of the 12,000 or more attorneys, and business people who received and read said volume of said derogatory marking and meaning of the same, Plaintiff has been defamed, minimized, and derogated in his professional reputation, and injured in his business and practice in particulars as follows to wit: Certain persons whose names are unknown at this time, residing in Plaintiff's locality have spoken of and treated him in a contemptuous manner by reason of such publication, alleging of Plaintiff, 'That he has no business;' others have alleged that, 'Whatever his ability and reputation as a lawyer, he is shunned and avoided in a business way;' others have gone to clients of Plaintiff and urged them to employ another lawyer as according to the statement Plaintiff was now without influence with the Court, and was worthless for business purposes; further than this many business men, former clients of Plaintiff, since and after the publication of Plaintiff's name with the alleged 'rating' in said Directory for 1929 have withdrawn their business and replaced it elsewhere; also, certain business men of other localities who had no acquaintance with attorneys in Jamestown, or its locality, and have important business to place there, after consulting and examining said Directory for the purpose of placing said business have given Plaintiff's name no consideration whatever, and have placed the business elsewhere owing to such publication. That on account of the contempt, scorn, and obloquy, given to Plaintiff, and his name by said publication and its understanding by persons who read said Directory Plaintiff has been deprived of much valuable business proceeding from people whose names he cannot give at this time. That on account of said publication and its wide circulation Plaintiff has been brought into contempt, ridicule, and obloquy throughout the professional ranks of the Bar, in the United States and Canada, and generally among the business men in all places in which said Directory was and has been circulated. That in the year 1928 the gross professional income of Plaintiff was $ 4,171.06. That in the year 1929 as one of the direct results of the libel of Plaintiff by the Defendant through such publication and the distribution of its Directory, as aforesaid, the income of Plaintiff reduced to $ 2,958.55. In the year 1930 for like reasons it was $ 3,047.20, in the year 1931 it reduced further for like reasons to $ 2,784.65. In the year 1932 for like reasons it was $ 1,704.40. That these reductions in income on Plaintiff's part were caused by reason of the said libelous statement of Defendant published and distributed against Plaintiff's name in its issue of Martindale's American Law Directory for the years of 1928, and 1929 and that Plaintiff believes and has every reason to believe and alleges amount to more than the sum of $ 2,500."

The sole question on this appeal is as to whether this amended paragraph sufficiently sets forth the special damages claimed to have been suffered. The defendant contends that it does not. That it fails to set out the names of the clients lost by the plaintiff because of the publication of the alleged defamatory matter, and that it does not specify particularly the origin, character, and amount of the business the plaintiff has been deprived of because of its publication.

In substance, the amended complaint alleges that the plaintiff has been engaged in the practice of law for many years; that he has always borne a good reputation as a man and as a lawyer; that he has had a substantial law business that came to him largely from forwarders through a widely spread foreign territory; that he was personally unacquainted with such forwarders; that the defendant's publication in which the alleged defamatory matter was published, was circulated generally throughout such territory and among those who forwarded business to the plaintiff; that, as a consequence of the circulation of such matter and immediately following such publication and circulation, his practice decreased in the manner and to the extent as set out in that portion of the complaint hereinbefore quoted.

From the nature of the circumstances as disclosed by the pleading the plaintiff cannot describe the particular items of business which he has lost or given the names of particular individuals who would have become his clients had it not been for the publication. But he does show a diminution of his business and of the income therefrom by pleading what that business amounted to prior to the publication and what it was after the publication, and as a result thereof. As to whether he can make proof in support of the allegations contained in his pleading is another matter with which we are not now concerned.

In Odgers, Libel & Slander, 5th ed. at page 382, it is stated:

"But it is not always necessary for the plaintiff to call as his witnesses those who have ceased to deal with him. He may be able to show by his account-books or otherwise, a general diminution of business as distinct from the loss of particular known customers or promised orders. He has still to connect that diminution of business with the defendant's words. Such a connection may sometimes be established by the nature of the words themselves. Where the defendant has published a statement about the plaintiff's business, which is intended or reasonably calculated to produce, and in the ordinary course of things does produce, a general loss of business, evidence of such loss of business is admissible, and sufficient special damage to support the action, although the words are not actionable per se, and although no specific evidence is given at the trial of the loss of any particular customer or order by reason of such publication."

The order must be and it is affirmed.