The sun., 1909-06-21
Libel by Advertisement.

The Supreme Court Of the United
States has lately been considering the
very interesting subject of libel by ad-
vertisement and has expressed its views
on that subdivision Of the law in an
opinion by Mr.. Justice OLIVER WEN
DELL HOLMES Of Massachusetts,. Incl
dentally the opinion also deals with
trained nurses and whiskey.
The Chicago Sunday Tribune pub
llshed an advertisement Of q well known
brand OF whiskey, declaring therein that
'Mre. A.. ScHUAAN, one Of Chicago's
most capable and experienced nurses.
pays an eloquent tribute to the great
invisorating, life giving and curative
properties of said whiskey. These
words were followed by q reoommen-
datieA Of the beverage signed Mrs. A.
SchuMAN.- In the middle of the ad-
vertisement appeared a portrait with
the words Mrs. A. ScHUMAN" under it.
The picture was in fact the likeness Of
a lady named ELIZABETH PECK, who
is not nurse and who never uses whis-
key or any other spirituous liquor. This
lady sued the newspaper for libel in
the Circuit Court of the United States.
The trial Judge held that the publica-
ton wss not hbellous in the absence of
any assertion that the plaintiff had suf-
fered actual pecuniary loss by reason
thereof, and he directed a verdict in
favor OF the defendant. The Federal
Court of Appeals sustained his decision.
The Supreme Court of the United States,
however. takes different view of the
case and has reversed the judgment and
granted the plaintiff new trial.
Mr.. Justice HOLMES says that -of
course the insertion OF the plaintiff s
picture in the place and with the con-
comitants that we have described i'm
ported that she was the nurse and made
the statements set forth" This seems
to US a trihe far fetched. Every one
who knew ELIZABETH PEcK must have
known that she was not A. ScHUMAN,
and probably knew that she was not a
trained nurse. They must therefore
have known that the advertisement
could not possibly refer to her, and that
the nse OF her portrait was due to some
mistake-as indeed was suggested upon
the trial. But, says Mr.. Justice HOLMES,
@many might recognize the plaintiffs
face without knowing her name, and
those- who did might be led to infer
that she had sanctioned the publication
under an alias. The latter suggestion
involves an excursion into very, re-
mote yp6icat OF speculation in order to
find Foundation for the application Of
thet iaw'.of libel. The learned Judge
comedies that he knows OF no decision
in which the matter Is discussed upon
principle. and so he proceeds to con.
slider t'for himself and his associates on
the reason OF the thing and apart from
any judicial authority.
The Circuit Court OF Appeals thought
that inasmuch as there was no general
consensus Of opinion that it was wrong
to use whiskey or that it was wrong
for q 'ntirse TO administer whiskey for
medicinal purposes il could not be
deemed libellous TO publish of the plain
tiff what the defendant had published.
Mrs 5pstiee HoLMEs, however, thinks
that such publication is actionable IF
the advertisement obviously would hurt
the plaintiff in the estimation OF an i'm
poftant and respectable part Of the
community The underlying idea in
his.opipipn seems to DO that IL might be
regarded Is d libel because It conveyed
the idea that she was participating in
the advertisement Of brand Of whis-
key. Thus, he says, II doctor were
represented as advertising. the fact that
it Nopld affect his standing with Others
Of hiGprofess!on might make the repre-
ssntstion -actionabe, although od>er-