ohland
08-12-2015, 11:08 AM
Marlin vs Shields Commentary
The Law of Advertising and Sales. 1908, Clowry Chapman. Publisher, Denver pages 60-63
https://books.google.com/books?id=UewpAAAAYAAJ&pg=PA60&dq=%22marlin+firearms%22&hl=en&sa=X&ved=0CCoQ6AEwATgoahUKEwinjIaw2aPHAhUNPZIKHXHBBxs#v =onepage&q=%22marlin%20firearms%22&f=false
Chapter VI - Libel And Slander
The Marlin Case
This was made clear in a case brought by the Marlin Firearms Company against the publisher of Recreation. It seems that the Marlin Company had for a long time advertised its repeating rifles in that magazine, but finally withdrew upon an increase being made in the advertising rates. Thereupon the publisher of Recreation published letters, purporting to be from correspondents, reflecting on the Marlin Rifle. The first letter was complimentary to the Marlin Rifles, and contained an expression of surprise that the advertisement of the Marlin Company no longer appeared in Recreation. The same issue in which this letter appeared contained an answer by the editor, in which the reason for the disappearance of the advertisement was stated to be an advance in advertising rates, because of increase in circulation. Another letter, purporting to have been written by a correspondent stated:
“I have owned and used a great many Winchester and Marlin rifles of all models .... I have come to the conclusion that the Marlin is not to be compared with the Winchester as regards ease, rapidity, or certainty of action, beauty of outline, finish, and all that goes to make up a first-class weapon. I consider the first model Winchester a more reliable weapon than the latest Marlin. Some one will ask why? And I answer: Because they handle the cartridges perfectly, and as rapidly as the lever can be worked by the operator, under any circumstances, while a Marlin might fail to handle the cartridges if handled with one-half the rapidity of the Winchester. .. . The Marlin has a faulty extractor and ejector.”
After citing instances in his own experience in apparent support of his assertion, and specifying what the Marlin lacks, the letter concludes:
“Here is an extract from a well-known Northwestern gun dealer's catalogue which has been in circulation several years: "I do not manufacture, recommend, or guarantee Marlin Rifles. If they chew up the heads of cartridges, clog up in the action and magazine, it is not my fault; so do not snip them rack on my hands. I have Marlin Rifles for sale for those who want them; but when sold and delivered my responsibility ceases." A good advertisement, truly. I consider any gun that leaves a Winchester factory perfect in every respect, both as regards accuracy and manipulation.”
Another letter in the same issue stated:
“Were the Winchester people to take the '86 model frame, and make it light for a .38-55 barrel, and then have a .38-55 Marlin barrel fitted, it would, in my opinion, be the ideal gun for general work for the man who cannot afford a .30-30, or other late arm. I've used Marlins a good deal, and was always bothered by the side ejector. It is no good, and the extractor in the Marlin is a little weak.”
Another letter published subsequently, and purporting to come from a correspondent, stated that, while out squirrel hunting with a friend, the latter said his rifle had worn out, and on examination it was found that "the little racker that racks the carrier had worn out" after "the rifle had been fired about eight hundred times," and that his friend took the gun to a dealer, who said he did not warrant the Marlin Rifle. The letter compared the Winchester with the Marlin, favorably to the former, and stated that the writer did not want the "so-called improvement" in the Marlin—the solid top and side ejector— and expressed the opinion that there is room for great improvement in the Marlin action. A still further letter appeared in a later publication, which, like the rest, purported to have been written by correspondents, and stated, in substance, that the Marlin is handsome, but its place is at the bottom of the list of rifles; "no repeating rifle can handle the long rifle cartridges;" the Marlin extractor is defective; the twist in the barrel is too short, and in a specified gun the carrier became worn out before five hundred cartridges were used, which gun also shed gas into the action.
In its bill for an injunction, the Marlin Company stated that all these charges were false; that, for instance, "the side ejecting system as used by plaintiff" (the Marlin Company), "is one of the most important improvements of recent development in the art, as shown by plaintiff's successful usage in all of its repeating arms made during the last eleven years." The Marlin Company did not seek any redress at common law, as for damages alone, but confined its action to equity, and prayed relief by way of injunction. In the course of its opinion the majority of the court—for there was a dissenting opinion—said :
“It is a general rule, which has some exceptions, that it [equity] will not undertake to interfere where a party has an adequate remedy at law, and when it does interfere it is guided by principles of equity, which, during the long course of its administration have become established. Concededly, there is no precedent in the courts of this state for the interference of equity in a case of this character.
It should be noted, first, that this complaint contains no allegation of any statement made against the character or conduct of plaintiff [the Marlin Company]. It has not been libeled. The words published in defendant's magazine, and for which defendant is responsible whether written by him or another, criticize the gun manufactured by plaintiff. They do not charge that the plaintiff was guilty of any deceit in vending, or want of skill in manufacturing, the gun. Every statement published, and of which complaint is made, relates solely to the quality of plaintiffs rifles, and their relative desirability, as compared with rifles manufactured by others.
Now it has been the law of this state since the decision [quoted in the previous chapter in reference to a defamation of a manufacturer's watches] that "when the words are spoken, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, to render them actionable per se, they must import that the plaintiff is guilty of deceit or malpractice in making or vending them." ....
That he (the plaintiff) has no adequate remedy at law is true. . . . This brings us to the real question of the case whether an unjust and malicious criticism of a manufactured article, for which the manufacturer has no remedy at law because of his inability to prove special damage, is the subject of equitable cognizance. The constitutional guaranty of freedom of speech and press, which in terms provides that "every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press," has for its only limitations the law of slander and libel. Hitherto the freedom of speech and of the press could only be interfered with where the speaker or writer offended against the criminal law, or where the words amounted to a slander or libel of a person or corporation, or their property, and the guaranteed right of trial by jury entitled the parties accused of slander or libel to have twelve men pass upon the question of their liability to respond in damages therefor, and to measure such damages. But the precedent which the plaintiff seeks to establish would not only open the door for a judge sitting in equity to establish a censorship over the past and present conduct of a publisher of a magazine or newspaper, but would authorize such judge by decree to lay down a chart for future guidance in so far as a plaintiff's property rights might seem to require, and, in case of the violations of the provisions of such a decree, the usual course and practice of equity would necessarily be invoked, which would authorize the court to determine whether such published articles were contrary to the prohibitions of the decree, and, if so found, punishment, as for a contempt, might follow. Thus a party could be punished for publishing an article which was not libelous, and that, too, without a trial by jury. . . . Application was made to Mr. Justice Bradley, of the United States Supreme Court, for an injunction to restrain defendants from publishing libelous circulars concerning plaintiff's business and patent right pending the trial of the principal suit brought to restrain infringement of patents. The learned justice said: "The application seems to be altogether a novel one, and is urged principally upon a line of recent English authorities—citing cases. An examination of these and other cases relied on convinces us that they depend on certain peculiar rights of the Parliament of Great Britain, and not on general principles of equity jurisprudence." After commenting upon the English statutes, he further says : "But neither the statute law of this country nor any well-considered judgment of the courts has introduced this new branch of equity into our jurisprudence. There may be a case or two looking that way, but none we deem of sufficient authority to justify us in assuming the jurisdiction."
Another case, so the court said, "recognized the general principle that an injunction will not ordinarily issue to restrain an individual from publishing a libel, where there is no conspiracy, no intimidation, and no acts of coercion." Such is the law today, but it may be Questioned whether before long it will not be modified to allow injunctive relief in cases threatening unwarranted and irreparable injury to another's business.
Editors, publishers and others connected with the press will find in Mr. Edwin L. Shuman's "Practical Journalism" many helpful suggestions regarding libel, illustrated by incidents growing out of a broad editorial exp
The Law of Advertising and Sales. 1908, Clowry Chapman. Publisher, Denver pages 60-63
https://books.google.com/books?id=UewpAAAAYAAJ&pg=PA60&dq=%22marlin+firearms%22&hl=en&sa=X&ved=0CCoQ6AEwATgoahUKEwinjIaw2aPHAhUNPZIKHXHBBxs#v =onepage&q=%22marlin%20firearms%22&f=false
Chapter VI - Libel And Slander
The Marlin Case
This was made clear in a case brought by the Marlin Firearms Company against the publisher of Recreation. It seems that the Marlin Company had for a long time advertised its repeating rifles in that magazine, but finally withdrew upon an increase being made in the advertising rates. Thereupon the publisher of Recreation published letters, purporting to be from correspondents, reflecting on the Marlin Rifle. The first letter was complimentary to the Marlin Rifles, and contained an expression of surprise that the advertisement of the Marlin Company no longer appeared in Recreation. The same issue in which this letter appeared contained an answer by the editor, in which the reason for the disappearance of the advertisement was stated to be an advance in advertising rates, because of increase in circulation. Another letter, purporting to have been written by a correspondent stated:
“I have owned and used a great many Winchester and Marlin rifles of all models .... I have come to the conclusion that the Marlin is not to be compared with the Winchester as regards ease, rapidity, or certainty of action, beauty of outline, finish, and all that goes to make up a first-class weapon. I consider the first model Winchester a more reliable weapon than the latest Marlin. Some one will ask why? And I answer: Because they handle the cartridges perfectly, and as rapidly as the lever can be worked by the operator, under any circumstances, while a Marlin might fail to handle the cartridges if handled with one-half the rapidity of the Winchester. .. . The Marlin has a faulty extractor and ejector.”
After citing instances in his own experience in apparent support of his assertion, and specifying what the Marlin lacks, the letter concludes:
“Here is an extract from a well-known Northwestern gun dealer's catalogue which has been in circulation several years: "I do not manufacture, recommend, or guarantee Marlin Rifles. If they chew up the heads of cartridges, clog up in the action and magazine, it is not my fault; so do not snip them rack on my hands. I have Marlin Rifles for sale for those who want them; but when sold and delivered my responsibility ceases." A good advertisement, truly. I consider any gun that leaves a Winchester factory perfect in every respect, both as regards accuracy and manipulation.”
Another letter in the same issue stated:
“Were the Winchester people to take the '86 model frame, and make it light for a .38-55 barrel, and then have a .38-55 Marlin barrel fitted, it would, in my opinion, be the ideal gun for general work for the man who cannot afford a .30-30, or other late arm. I've used Marlins a good deal, and was always bothered by the side ejector. It is no good, and the extractor in the Marlin is a little weak.”
Another letter published subsequently, and purporting to come from a correspondent, stated that, while out squirrel hunting with a friend, the latter said his rifle had worn out, and on examination it was found that "the little racker that racks the carrier had worn out" after "the rifle had been fired about eight hundred times," and that his friend took the gun to a dealer, who said he did not warrant the Marlin Rifle. The letter compared the Winchester with the Marlin, favorably to the former, and stated that the writer did not want the "so-called improvement" in the Marlin—the solid top and side ejector— and expressed the opinion that there is room for great improvement in the Marlin action. A still further letter appeared in a later publication, which, like the rest, purported to have been written by correspondents, and stated, in substance, that the Marlin is handsome, but its place is at the bottom of the list of rifles; "no repeating rifle can handle the long rifle cartridges;" the Marlin extractor is defective; the twist in the barrel is too short, and in a specified gun the carrier became worn out before five hundred cartridges were used, which gun also shed gas into the action.
In its bill for an injunction, the Marlin Company stated that all these charges were false; that, for instance, "the side ejecting system as used by plaintiff" (the Marlin Company), "is one of the most important improvements of recent development in the art, as shown by plaintiff's successful usage in all of its repeating arms made during the last eleven years." The Marlin Company did not seek any redress at common law, as for damages alone, but confined its action to equity, and prayed relief by way of injunction. In the course of its opinion the majority of the court—for there was a dissenting opinion—said :
“It is a general rule, which has some exceptions, that it [equity] will not undertake to interfere where a party has an adequate remedy at law, and when it does interfere it is guided by principles of equity, which, during the long course of its administration have become established. Concededly, there is no precedent in the courts of this state for the interference of equity in a case of this character.
It should be noted, first, that this complaint contains no allegation of any statement made against the character or conduct of plaintiff [the Marlin Company]. It has not been libeled. The words published in defendant's magazine, and for which defendant is responsible whether written by him or another, criticize the gun manufactured by plaintiff. They do not charge that the plaintiff was guilty of any deceit in vending, or want of skill in manufacturing, the gun. Every statement published, and of which complaint is made, relates solely to the quality of plaintiffs rifles, and their relative desirability, as compared with rifles manufactured by others.
Now it has been the law of this state since the decision [quoted in the previous chapter in reference to a defamation of a manufacturer's watches] that "when the words are spoken, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, to render them actionable per se, they must import that the plaintiff is guilty of deceit or malpractice in making or vending them." ....
That he (the plaintiff) has no adequate remedy at law is true. . . . This brings us to the real question of the case whether an unjust and malicious criticism of a manufactured article, for which the manufacturer has no remedy at law because of his inability to prove special damage, is the subject of equitable cognizance. The constitutional guaranty of freedom of speech and press, which in terms provides that "every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press," has for its only limitations the law of slander and libel. Hitherto the freedom of speech and of the press could only be interfered with where the speaker or writer offended against the criminal law, or where the words amounted to a slander or libel of a person or corporation, or their property, and the guaranteed right of trial by jury entitled the parties accused of slander or libel to have twelve men pass upon the question of their liability to respond in damages therefor, and to measure such damages. But the precedent which the plaintiff seeks to establish would not only open the door for a judge sitting in equity to establish a censorship over the past and present conduct of a publisher of a magazine or newspaper, but would authorize such judge by decree to lay down a chart for future guidance in so far as a plaintiff's property rights might seem to require, and, in case of the violations of the provisions of such a decree, the usual course and practice of equity would necessarily be invoked, which would authorize the court to determine whether such published articles were contrary to the prohibitions of the decree, and, if so found, punishment, as for a contempt, might follow. Thus a party could be punished for publishing an article which was not libelous, and that, too, without a trial by jury. . . . Application was made to Mr. Justice Bradley, of the United States Supreme Court, for an injunction to restrain defendants from publishing libelous circulars concerning plaintiff's business and patent right pending the trial of the principal suit brought to restrain infringement of patents. The learned justice said: "The application seems to be altogether a novel one, and is urged principally upon a line of recent English authorities—citing cases. An examination of these and other cases relied on convinces us that they depend on certain peculiar rights of the Parliament of Great Britain, and not on general principles of equity jurisprudence." After commenting upon the English statutes, he further says : "But neither the statute law of this country nor any well-considered judgment of the courts has introduced this new branch of equity into our jurisprudence. There may be a case or two looking that way, but none we deem of sufficient authority to justify us in assuming the jurisdiction."
Another case, so the court said, "recognized the general principle that an injunction will not ordinarily issue to restrain an individual from publishing a libel, where there is no conspiracy, no intimidation, and no acts of coercion." Such is the law today, but it may be Questioned whether before long it will not be modified to allow injunctive relief in cases threatening unwarranted and irreparable injury to another's business.
Editors, publishers and others connected with the press will find in Mr. Edwin L. Shuman's "Practical Journalism" many helpful suggestions regarding libel, illustrated by incidents growing out of a broad editorial exp