Smith v. Will Baumer Co.

The plaintiffs and defendant are rival manufacturers of wax candles. Defendant having procured some of plaintiffs’ candles, caused the same to be examined by a firm of chemists, and in due course received a written analysis purporting to show that the candles manufactured and offered for sale by plaintiffs as genuine beeswax were, in fact, composed of only a small percentage of beeswax, and principally of stearine, stearic acid? and paraffine. The defendant furnished its salesmen with copies of this analysis so that when, in the attempt to make sales of candles, they were met by plaintiffs’ salesmen, they might use the analysis to induce intending purchasers to buy defendant’s candles instead of those offered by plaintiffs. This action is for libel in the publication of the analysis. In November, 1898, defendant moved for and obtained an order requiring the plaintiffs to furnish a bill of particulars stating the names of the persons to whom the defendant published the libel, by whom it was published, and the times "and places at which it was published. Obviously, the only purpose sought to be attained by this order was to limit plaintiffs’ proof on the trial and to enable the defendant intelligently to prepare its defense, and the order provided that proof of any publication except as should be specifically stated in the bill of particulars should be excluded upon the trial of the action. The plaintiffs have furnished a bill of particulars, naming some thirty-six persons or firms as those to whom the libel was published, some twenty-two cities and towns in which it was so published, and nine persons, besides the officers, agents and salesmen of defendant as the persons by whom such libel was' published, and specifying nearly every month from- December, 1896, to February, 1898, as the times when the libel was so published. The defendant now moves to strike out the bill of particulars, or to preclude the plaintiffs from giving evidence under it. The specific objections to the bill are not stated in the order to show cause, but from the affidavit Upon which it is based it appears that the defendant does not consider that the bill is made in good faith, because it is asserted to. be inconceivable that the plaintiffs.really intend to prove publication to and by so many persons as are named in the bill, or at so many places, and it is further urged that as to each of the persons to whom publication is said to have been made the particular time *602and place of publication ought to have been stated. As has already been said, the object of the bill of particulars was to limit plaintiffs’ proof on the trial by apprising defendant of the publications intended to be proved. If,-as seems to be the case, the defendant has spread the libel broadcast through a great number of agencies to a great number of people, it cannot complain if the plaintiffs undertake to prove every publication, however numerous they may have been. , The method of publication adopted by defendant' ■ insured its circulation in a great number of places at different times. The number of persons, other than defendant’s own employees, thfbugh whom the libel is said to have been published, is not large, and defendant can easily ascertain from them just when and to whom they mide the publication. The defendant also objects to the bill because it doés not give sufficient information as to special damage suffered by plaintiffs. If' the complaint alleges special damage, which, in my opinion, it does ■ not, the bill of particulars is not sufficiently definite. The order for the bill of particulars, however, provides that proof of special' damage shall be excluded on the trial, except as specified in the bill '■of particulars. It can be safely left to the trial justice to determine whether special damage has been alleged, and if so, what proof thereof, if any, can properly be admitted under the bill of particulars and the order upon which it is based. Other objections to the bill suggested on the argument are not specified in the, order tb show cause, and are made too late.

Motion denied, with $10 costs.