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to purchase goods upon credit, and this without any request being made to be informed of the standing or credit of Pollasky Brothers; and others of whom, and by far the greater number, were engaged in different lines of business, and were in no manner interested in knowing their standing, or financial ability or business integrity. To all such the communication was not privileged. It cannot be said that & blacksmith, a saw-mill and lumber dealer, a furniture manufacturer, a dealer in hardware, a chemist, mineral-water bottlers, butchers, book-agents, physicians, or druggists, or those in other business mentioned in the notification-sheets who are not engaged in the wholesale or retail dealing in dry-goods, clothing, or boots and shoes, are at all interested in the business standing of a dealer in dry-goods, clothing, and boots and shoes.
No court has gone so far as to hold that all communications made by a mercantile agency to its subscribers, if made in good faith, but made generally, without request, or to those not inquiring concerning or interested in knowing the condition and financial standing of a person, are privileged. On the contrary, courts have uniformly held that privilege does not extend to false publications made to patrons who have no such interest in the subject matter: Goldstein v. Foss, 2 Car. & P. 252; 12 Eng. Com. L. 556; Commonwealth v. Stacey, 8 Phila. 617; Taylor v. Church, 8 N. Y. 452; Ormsby v. Douglass, 37 N. Y. 477; Sunderlin v. Bradstreet, 46 N. Y. 188; 7 Am. Rep. 322; King v. Patterson, 49 N. J. L. 417; 60 Am. Rep. 622; Bradstreet Co. v. Gill, 72 Tex. 115; 13 Am. St. Rep. 768; Johnson v. Brudstreet Co., 77 Ga. 172; 4 Am. St. Rep. 77; Erber v. Dun & Co., 12 Fed. Rep. 526; and see 26 Am. Law Reg., N. S., 681, and 28 Am. Law Reg., N. S., 259.
It was strongly urged upon us at the hearing that we should adopt the able opinion of Van Syckel, J., in which he dissents from the majority of the court in King v. Patterson, 49 N.J. L. 417, 60 Am. Rep. 622, in which he goes the whole extent of giving immunity to commercial agencies for all publications made in good faith to their subscribers, whether true or false, In his desire to keep abreast of the progressive state of society, and the new and varying conditions that may arise in the progress of the age, he has entirely overlooked the rights of the individual, forgetting that "society is organized and courts established for the protection of the rights of individ. als."
It is all very well to advance the interests of the wholesale dealers as a class, and afford them information which will reasonably protect them from loss. But there is no principle of justice or of law which requires this to be done at the expense of the individual. It would be a harsh and tyrannical rule that would protect one person from loss at the pecuniary ruin of another. The welfare of society does not require that a few great wholesale dealers shall thrive by the sacrifice of many, or of any, small purchasers.
The code of Georgia defines "privilege” very much the same as it signifies at common law. Section 2980 declares as privileged communications, — "1. Statements made bona fide, in the performance of a public duty; 2. Similar statements in the performance of a private duty, either legal or moral."
In Johnson v. Bradstreet Co., 77 Ga. 172, 4 Am. St. Rep. 77, the commercial agency sought to justify a false charge made against the plaintiff under the plea of privilege. After showing that the false charge was not made in the performance of a public duty, Jackson, C. J., said (page 175): “If one makes it his business to pry into the affairs of another in order to coin money for his investigations and information, he must see to it that he communicate nothing that is false."
And he held that the communication made under a contract similar to the one introduced in evidence in this case was not the result of a private duty, either moral or legal, in the sense of the statute, and was not privileged.
If we should advert to the circumstances of the publication of this libel, we could point out circumstances from which a jury might infer express malice. The information was obtained from Mr. Balke, an attorney at Alma, where Pollasky Brothers carried on business. He was the correspondent of the agency at that place. On February 20, 1887, he sent a letter by mail from Alma, addressed to George H. Minchener, Detroit, in which he stated: “I write to inform you that there has been a chattel mortgage of ten thousand dollars filed in this township upon the stock of dry-goods and clothing, boots and shoes, of Pollasky Brothers, running to Citizens' National Bank, Detroit Think it is the forerunner of a failure. Would advise caution in dealing with them."
This was received at the Detroit office of Dun & Co. on the 21st, and the letter was opened by the chief clerk, Thomas, who knew that there was no Citizens' National Bank in Detroit. He knew that the information was not correct in that particular. Notwithstanding, he took this letter, and directed a type-writer to make a report to send out in proper form, as follows: “Pollasky Brothers, dry-goods, clothing, boots and shoes, Alma, Gratiot County, Michigan. - A chattel mortgage of ten thousand dollars has been filed in this township, covering their stock of dry-goods and boots and shoes, running to Citizens' National Bank, Detroit. It is thought that this may be the forerunner of a failure. Would advise caution in dealing with them, and prompt action on the part of creditors."
The words in Italics were added in the Detroit office, and were very pernicious in their effect upon Pollasky Brothers; for they not only found their credit ruined, but their creditors took prompt action in presenting claims that were not due, as well as those that were. R. G. Dun & Co., at Detroit, advised Balke that there must be some mistake, as there was no such bank in Detroit, and requested him to investigate further, and report, and instead of waiting for the result of such investigation, sent out the notification-sheet uncorrected, and contain. ing the wholly false statement, on February 23d. It would seem that plenty of time had elapsed, where daily mails and telegraphic wires connect the two points, to ascertain the truth of the report.
2. Is George H. Minchener liable for the publication of this libel? The attorney for the plaintiffs insists that the facts in the case directly connect the defendant Minchener with the publication, and establish an implied consent to and author. ization of the publication of the libel complained of. He claims that “the evidence was uncontradicted that the information contained in the item in the notification-sheet concerning plaintiffs was sent to the office of the defendant Minchener in Detroit, in a letter by one Balke, an attorney at Alma, Michigan. It is addressed to 'George H. Minchener, Detroit, Michigan,' not to ‘R. G. Dun & Co.,' or to 'George H. Minchener, agent R. G. Dun & Co.,' but to ‘George H. Minchener,' personally and individually. There is not a line or word in the letter to indicate that it was intended for R. G. Dun & Co. The defendant swears he did not receive it, but found it in the office of R. G. Dun & Co., of which he was manager, and when he found it, that it was opened. And in explanation of this, he says that stamped envelopes are furnished to the attorneys of the agency, in which to reply to inquiries, and that those envelopes, for the Detroit office, and sent out therefrom, were addressed George H. Minchener'; and he leaves it to be inferred that this letter came in one of these envelopes, and was opened by his chief clerk, Charles F. Thomas, who prepared the notification sheet from it, and also sent out the notices to the other offices of R. G. Dun & Co. Minchener testifies that all letters in envelopes with the printed address, 'George H. Minchener, Detroit, Michigan,' would go into his chief clerk's hands, whose duty it would be to open it, and unless there was something excep tional in connection with the matter, Minchener's attention would not be called to it."
And he contends that “ if we believe Minchener's testimony, the case therefore stands thus: Minchener authorizes Thomas to open all letters addressed to him, and to incorporate in the notification-sheets whatever items of news he finds in such letters, without consulting him, 'unless there was something exceptional in connection with the matter.' Thomas, acting under this authority, receives the Balke letter, prepares the notification-sheet from the information therein, and sends out this false and wicked libel broadcast all over the United States. When sued for the serious damage which the libel bas caused the plaintiffs, he replies: 'I knew nothing whatever about it. You must sue Thomas, my chief clerk, or R. G. Dun & Co., my principal, but you can't sue me because of anything my chief clerk did.'”
The plaintiffs' counsel also contends that the principles of respondeat superior do not apply in cases for libel; that the proposition is general and elementary that “every one who requests, procures, or commands another to publish a libel is answerable as though he published it himself. And such request need not be express, but may be in ferred from the defendant's conduct"; citing Odgers on Libel and Slander, 155.
The same work, at page 359, lays it down as the law that “if any agent or servant be in any way concerned in writing, printing, publishing, or selling a libel, he will be both civilly and criminally liable. If a clerk or servant copy a libel, and deliver the copy he has made to a third person, he will be liable as a publisher. That his master or employer ordered him to do so will be no defense.”
It is not necessary to go to the full extent of the text to hold an agent liable severally or jointly with the principal.
“In general,” says Mr. Justice Cooley, "all persons in any manner instrumental in making or procuring to be made the defamatory publication are jointly and severally responsible therefor. Therefore one in the course of whose business & libel is published by his agent may be joined with an agent in an action for the publication": Cooley on Torts, 194.
There was testimony in the case sufficient to be submitted to the jury upon the question whether Minchener published, or caused to be published, the publication alleged to be libelous, and the court erred in taking the case from them.
The judgment must be reversed, and a new trial granted.
LIBEL — PRIVILEGED COMMUNICATIONS - COMMERCIAL AGENCIES, -Gon. eral publications purporting to disclose the business standing of men, and which are circulated among all the patrons of the pullisher, are not privi. leged communications; but a commercial agency may impart such information to any particular patron who has a particular interest in the affairs of the person whose business standing is given: Note to McAllister v, Detroit Pree Press Co., 15 Am. St. Rep. 348, 349; Lowry v. Vedder, 40 Minn. 476; Brada street Ca v. Gill, 72 Tex. 115; 13 Am. St. Rep. 768
PEOPLE V. GORDON.
(81 MICHIGAN, 806.) MUNICIPAL CORPORATIONS — ORDINANCE REGULATING REMOVAL OF GAR
BAGE. — Under a statute authorizing a city council to provide by ordinance for the manner of removal of garbage from a city, and to impose and enforce appropriate penalties, an ordinance requiring the garbage to be removed through and out of the city in closed, water-tight carts or wagons, marked "Garbage,” is reasonable and valid. Edwin F. Conely, for the appellant.
John W. McGrath, Charles W. Casgrain, and Charles S. Mo Donald, for the people.
MORSE, J. The defendant was convicted, under an ordi. nance of the city of Detroit, for "unlawfully and willfully engaging in collecting and removing, in an open wagon, of garbage within the city of Detroit, .... not being authorized so to do by permit from the health-officer of the city."
It is contended in his behalf that this conviction is illegal and unwarranted, because the ordinance is unreasonable, par. tial, and unequal in its operation, and was adopted for the purpose of creating, and does create, a monopoly. The ordipance is as follows:
“Sec. 1. It is hereby made the duty of the occupant or occupants of every dwelling-house or other building in the city of Detroit to provide a suitable and water-tight box or other vessel, of a convenient size to be handled by the garbage col