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Collier v. Postum Cereal Co.

Supreme Court of New York, Appellate Division

February 16, 1912

ROBERT J. COLLIER, Respondent,
v.
POSTUM CEREAL COMPANY, LIMITED, Appellant.

APPEAL by the defendant, the Postum Cereal Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1910, upon the verdict of a jury for $50,000, and also from an order entered in said clerk's office on the same day, as amended nunc pro tunc

Page 144

by an order entered on the 19th day of December, 1910, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

James A. O'Gorman [Arthur B. Williams and Stephen P. Anderton with him on the brief], for the appellant.

Morgan J. O'Brien [James W. Osborne and Edwin W. Willcox with him on the brief], for the respondent.

OPINION

MILLER, J.

The provoking article published by Collier's did not, as is said, make a general charge of fraudulent and deceptive advertising against the defendant. The charge was that the defendant by its methods of advertising was to its own injury causing its food products to be classed in the public mind with fraudulent and failing patent medicines. The specific charge was as follows:

'One widely circulated paragraph labors to produce the impression that 'Grape-Nuts' will obviate the necessity of an operation in appendicitis. This is lying, and, potentially, deadly lying. Similarly, 'Postum' continually makes reference to the endorsements of 'a distinguished physician' or 'a prominent health official,' persons as mythical, doubtless, as they are mysterious.'

In the retort, which is the basis of this suit for libel, the defendant quoted these specific statements, characterized them as 'mendacious falsehoods,' and in substance charged that they were published to force the defendant to advertise in Collier's on its own terms. To meet the defendant's plea of privilege the plaintiff assumed the burden of proving the falsity of the alleged libelous article and actual malice in its publication. That involved proof of the truth of the said specific statements, which naturally would consist of evidence of advertisements calculated or tending to create the impression that Grape-Nuts would obviate the necessity of an operation in appendicitis, of the falsity of such a claim, if made, and of the publication of fictitious indorsements purporting to have been made by physicians and health officials. I am unable to find in the voluminous record before us any evidence whatever of the publication

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by the defendant of such fictitious indorsements, and to say the least, it is open to argument whether any of the defendant's advertisements could fairly be construed as making a claim that Grape-Nuts would cure appendicitis. For the obvious purpose of bridging over the weakness of the plaintiff's case on that head the learned trial counsel attempted, and ultimately succeeded in the attempt, to make a general attack upon the defendant, its products 'Postum' and 'Grape-Nuts' and its methods of advertising them. Indeed, to read this record without reference to the pleadings, one would think that the parties had changed places and that the plaintiff as defendant was attempting to justify a general charge of dishonesty made against a plaintiff. It will serve no useful purpose to go into details. Suffice it to say that the plaintiff was permitted to put in evidence any advertisement of the defendant, the packages in which the defendant's products were put up, and the printed matter thereon, or distributed therein, and to call experts, physiological chemists, dieticians and physicians, to prove that claims made by the defendant on behalf of its products, but wholly unrelated to the said specific statements, were false, e. g., that the statement on the Grape-Nuts packages, 'A Food for Brain and Nerve Centers,' was untrue. It is impossible to estimate the effect upon the jury of the clever use made by ingenious counsel of a mass of that kind of evidence and of the array of distinguished chemists, employed in agricultural departments of different States and of the United States in the enforcement of pure food laws, who had had occasion to analyze Postum and Grape-Nuts. An attempt is made to justify the course of the trial on the ground that the defendant tendered the issue by an innuendo in the answer. The meaning of an article cannot be enlarged by innuendo. Timely objection was taken by the appellant and insisted upon throughout the trial. The error was fundamental and permeated the whole case, and it seems to me that we cannot sustain this judgment without virtually holding that, in a libel case, either party is at liberty to attack the other wholly regardless of the issues in the case.

The judgment and order appealed from should, therefore,

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be reversed and a new trial ordered, with costs to appellant to abide event.

INGRAHAM, P. J., and SCOTT, J., concurred; LAUGHLIN and DOWLING, JJ., dissented.

CONCURRING

INGRAHAM, P. J. (concurring):

The discussion of this case by Mr. Justice LAUGHLIN points out various rulings upon questions of evidence, exceptions taken to the charge as made, and refusals to charge, which I think are erroneous, and an examination of the record discloses that in consequence of the rulings of the learned trial judge both in regard to evidence and passing upon the defendant's requests to charge, the case was not presented to the jury in such a way as to preserve the rights of the defendant.

I also concur with Mr. Justice MILLER and, therefore, vote for a new trial.

DISSENTING

LAUGHLIN, J. (dissenting):

The action is for libel. At the time of the publication of the alleged libel and for years prior thereto the plaintiff and his father, Peter F. Collier, since deceased, owned and published a weekly periodical known as Collier's Weekly, of which plaintiff was the managing editor. The plaintiff determined the policy of Collier's and had and exercised general supervision over it, but the editorials published therein were written by others, and Norman Hapgood, who was the chief editorial writer, was known as 'Editor' by those connected with the paper, and on one occasion when a picture of the staff was published in Collier's the word 'Editor' was printed under Hapgood's name. In the complaint it is charged that the libel was of and concerning the plaintiff as one of the owners and one of the editors of Collier's Weekly, and was composed and published 'with the intent to injure this plaintiff and the newspaper 'Collier's Weekly,' of which the plaintiff is one of the owners and editors, in his and its good name and reputation.' The alleged libel was published on the 4th day of September, 1907, in answer in part, at least, to an editorial published in Collier's Weekly on the 27th day of July, 1907, which it is claimed made both the occasion and the article privileged. It is alleged in the complaint and admitted by the answer that the defendant

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is a copartnership association organized and existing under the laws of the State of Michigan, and engaged in the business of manufacturing and selling food products, and among others, 'Grape-Nuts,' a food, and 'Postum,' a beverage. For several years prior to December 23, 1904, the defendant had advertised Grape-Nuts and Postum in Collier's for which it paid about $9,000 per annum, and on that day, through the Grandin Advertising Agency, Ltd., it entered into a contract for advertising said products in Collier's for the year commencing February 25, 1905. The contract contained no express restriction with respect to the contents of the advertisements, but it provided, among other things, that they should be inserted to the right of reading matter, and at 'bottom of column' and 'set in body type of paper, * * * leaded if reading on same page is leaded, to conform as near as possible to size of type as shown on copy.' Prior to the 4th of November, 1905, Samuel Hopkins Adams had written a series of articles entitled 'The Great American Fraud,' attacking patent medicine advertising as an imposition on the public, and they were published from time to time under his name, in Collier's. The issue of Collier's Weekly published on said fourth day of November contained an editorial with the heading 'Editorial Bulletin,' in which reference was made to the articles written by Mr. Adams and published in Collier's, and after charging and pointing out at length the writer's basis for the charge, that the advertisers of patent medicines, owing to the revenue derived from the advertisements, exercised a powerful influence over the press in the dissemination of false claims with respect to the merits of patent medicines, and the suppression of news relating to the injurious and poisonous effects thereof, and stating that Collier's had been charged with inconsistency in that, while declining advertisements of certain patent medicines, it accepted advertisements of beer and whisky, it announced that Collier's was not engaged in a total abstinence crusade, but merely a crusade 'against fraud and poison, against alcohol and drugs masquerading in the innocent guise of 'tonics' and 'headache powders,"' and that, to avoid any further misunderstanding between it and its readers, it had determined to refuse advertisements of beer

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and whisky as well as patent medicines in the future, and closed with an announcement as follows: 'We have tried to formulate an advertising policy, based on common sense rather than 'holiness' that will protect our readers from being imposed upon. That policy is briefly as follows:

' Collier's will accept no advertisements of beer, whisky, or alcoholic liquors; no advertisements of patent medicines; no medical advertisements or advertisements making claims to medicinal effect; no investment advertising promising extraordinary returns, such as stocks in mining, oil, and rubber companies. The editor reserves the right to exclude any advertisement which he considers extravagant in claim or offensive to good taste.'

The lower right-hand corner of the page on which this announcement was made contained an advertisement of Postum headed in large heavy type 'Funny!' with a hand pointing to that word, and with the further heading on the line below 'People Will Drink Coffee When It 'Does Such Things,"' and the body of the advertisement was as follows:

"I began to use Postum because the old kind of coffee has so poisoned my whole system that I was on the point of breaking down, and the doctor warned me that I must quit it.

"My chief ailment was nervousness and heart trouble.

"Any unexpected noise would cause me the most painful palpitation, make me faint and weak.

"I had heard of Postum and began to drink it when I left off the old coffee. It began to help me just as soon as the old effects of the other kind of coffee passed away. It did not stimulate me for a while, and then leave me weak and nervous as coffee used to do. Instead of that it built up my strength and supplied a constant vigor to my system which I can always rely on. It enables me to do the biggest kind of a day's work without getting tired. All the heart trouble, etc., has passed away.

"I give it freely to all my children, from the youngest to the oldest, and it keeps them all healthy and hearty.'

'Name given by Postum Co., Battle Creek, Mich.

'There's a reason.

'Read the little book, 'The Road to Wellville.' in pkgs.'

Page 149

The page containing the editorial announcement and this advertisement was cut out, evidently by a reader, and sent to Collier's by mail, with a notation thereon reading as follows: 'Consistency thou art a jewel.' On the 22d day of November, 1905, Mr. Nast, Collier's advertising manager, wrote the agency through which the contract with Collier's was made and Mr. Post, who virtually owned the defendant and who was chairman of its board of managers and exercised entire control over it and prepared its advertising matter, and drew attention to said advertising policy then recently adopted by Collier's, a copy of which was inclosed, and stated that Collier's would not in the future publish 'the style of copy' defendant had been sending for Postum and Grape-Nuts, and suggested 'that regular display copy' might be so written that it could be inserted without violating Collier's policy and still prove of great value to defendant, and further stated: 'I do not question the value of Postum and Grape-Nuts, but I feel that insertion of advertising along the lines of your former copy would be in violation of our advertising policy.' Post replied under date of November twenty-ninth, denying that defendant's advertisements claimed any medicinal ingredients or effects for Grape-Nuts and Postum, and stating that he claimed merely that coffee is injurious and that people injured by it could be helped by using a food-coffee, and that people used food not suited to their requirements, and 'that by changing their food and using well selected natural food like Grape-Nuts, they can be physically and mentally improved; ' and further stating, in effect, that if Collier's did not see fit to accept defendant's advertising they were at liberty to discontinue publishing it, but protested against being classed with patent medicine advertisers. On December sixth Nast replied as follows:

'I have your letter of November 29, and agree with you that Postum and Grape-Nuts should never, for one moment, be classed as patent medicines, nor have I done so.

'During our present campaign against patent medicines, however, it is not possible for us to publish, in any advertisement, symptoms of heart trouble, stomach troubles, and nervous diseases, which are clearly subject for the family physician's attention.

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'I do not object to Postum Cereal as a substitute for coffee, nor do I state that your present advertising makes claims of medicinal ingredients; but what conflicts with our advertising policy is, that the advertising makes claims of medicinal effects.

'We have no doubt whatever that Postum and Grape-Nuts are doing a great deal of good; but in view of our present campaign against patent medicines, it is impossible for us to allow their promotion through our columns in the style of copy we have been inserting.'

Post replied on December eleventh, stating that it might be correct if it had been stated that defendant made claims that Grape-Nuts and Postum produced 'physical and mental effects; ' but that it was not correct to charge that it claimed 'medicinal effects,' and gave his reasons for claiming that these products produced beneficial mental and physical effects, and objected to having the work he was doing in introducing these natural foods to the public classed with the work which Collier's was making a crusade against. Nast again replied on December eighteenth, reiterating his position and pointing out that Postum and Grape-Nuts could be advertised 'without giving a list of symptoms which may be obviated by the use of the two foods; ' and that the symptoms incorporated in defendant's advertising 'come in the field of the physician's work, and should not, therefore, appear in type in conjunction with a food, any more than with a patent medicine,' and stating that Collier's could not during its campaign against patent medicines insert the style of copy which defendant had been furnishing, and closed with the following:

'I dislike very much to lose the Postum and Grape-Nuts advertising; and hope you may be able to see my difficulty and submit copy written on general publicity lines, which would overcome it, and, at the same time, prove a valuable investment for you.'

On the twenty-sixth of December Collier's returned advertising copy received from the advertising agency on December twentieth, and from that time, without further negotiations, both parties apparently acquiesced in the abandonment of the advertising contract. The editorial published in Collier's

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July 27, 1907, with reference to which the alleged libelous article was written was as follows:

' Deception There Is, in advertising, as in all dealings between the imperfect human animal and his equally imperfect fellow. It is lessening with the spread of intelligence. Some, that is still conspicuous in print, is unnecessary, and hence incredibly stupid. For example, take certain recent exploitations of 'Grape-Nuts' and its fellow article 'Postum,' put out by the same concern. One widely circulated paragraph labors to produce the impression that 'Grape-Nuts' will obviate the necessity of an operation in appendicitis. This is lying, and, potentially, deadly lying. Similarly, 'Postum' continually makes reference to the endorsements of 'a distinguished physician' or 'a prominent health official,' persons as mythical,

doubtless, as they are mysterious. Here are two articles of food which unless there is some secret Futility reason against it should sell on their merits. Yet their manufacturer persists in insulting the intelligence and alienating the support of people who might otherwise purchase them. ' I've stopped taking Grape-Nuts since it became a patent medicine,' said an acquaintance of ours recently. The editor of a prominent religious journal writing of the cancellation of certain patent-medicine contracts, says: 'I have sometimes the same feeling toward the Postum advertisements, and those of Grape-Nuts. * * * The manner in which they are pushed and the phraseology used to commend them, constantly cause me annoyance.' If these breakfast foods desire to be classed in the public ...


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