Nurse and Patients

Praise Duffy's

Mrs. A. Schuman, One of Chicago's Most Capable and Experienced Nurses, Pays an Eloquent Tribute to the Great Invigor

ating, Life-Giving and Curative Properties of

DUFFY'S PURE MALT WHISKEY.

"For that weak, run-down and gone feeling, it is the best tonic and stim ulant in the world."

"After years of constant use of your Pure Malt Whiskey both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it,as the very best tonic and stimulant for all weak and run down conditions. At least twenty-Ave families use it in my own neighborhood, and when I go out nursing patients ask me what to take for that 'gone feeling, and once that Duffy's is within their reach it is used always.". -Mrs. A. Schuman, 1576 Mozart St., Chicago, Ill.

Duffy's Pure Malt Whiskey

For more than fifty years Duffy's Pure Malt Whiskey has been prescribed by dod tors and used in over two thousand leading hospitals as the purest and most powerful tonic-stimulant, invigorator and health-builder known to the medical science. It is endorsed by the clergy and professional nurses and recommended by all schools of medicine as a positive cure for pneumonia, consumption, grip, dyspepsia, indigestion, nervous prostration, all diseases of the throat and lungs, and every form of stomach trouble; malaria, chills, fever, and all run-down, weakened, diseased conditions of the body, brain, mind and muscle. It is a heart tonic, blood purifier and promoter of health and long life; makes the old hearty and young, and keeps the young vigorous and strong. Duffy's Pure Malt Whiskey contains, no fusel oil, and is the only whiskey recognized by the government as medicine.

There is but one Duffy's Pure Malt Whiskey. Insist on having the genuine and refuse cheap substitutes and imitations offered by unscrupulous dealers, which are placed on the market for profit only and which are positively harmful to both body and brain. Look for the trade-mark, the "Old Chemist," on the label, and be sure the seal on the bottle is unbroken. Sold in sealed bot tles only; never in bulk.

PURE & UNAD

ABSOLUTELY

All reliable druggists and grocers, or direct, $1.00 a bottle. Advice and medical booklet free. Duffy's Malt Whiskey Co., Rochester, N. Y.

The averment of the declaration is, that the picture on the face of such advertisement, instead of being that of Mrs. A. Schuman, as stated, was and is, the picture of plaintiff in error, published without her knowledge or consent.

The first two counts of the declaration proceed as for libel, the plaintiff in error denying as stated in the publication respecting Mrs. Schuman, that she was a nurse, and denying as stated in the publication respecting Mrs. Schuman that she had ever used or recommended Duffy's Pure Malt Whiskey. And in these counts the further averment appears:

Plaintiff further states that the allegation in said publication that she does use and has used and does recommend and has recommended the use of said whiskey is false, malicious, scandalous and defamatory: That she is and always has been a non-user and abstainer from whiskey and all spirituous liquors: That the allegation in said publication so charging the plaintiff with the use of whiskey and recommending its use to the public has been and is greatly humiliating to the plaintiff; and that said publication has brought the plaintiff and her family into contempt and ridicule before the world.

Also this averment, that the "effect and meaning of said publication are to charge the plaintiff with the use of whiskey and to publish the same to the world, and to allege and publish of and concerning the plaintiff that she has used Duffy's Malt Whiskey constantly for years and to proclaim to the world that she has been and is a nurse and has and does recommend the use of whiskey to the public."

The last count of the declaration proceeds as for invasion of plaintiff in error's right of privacy, averring that in the printing of this advertisement, the plaintiff in error has been greatly distressed and humiliated.

The general issue having been pleaded, trial was had, resulting in an instruction to the jury by the court, to find a verdict for the defendant-the evidence tending to show that the averments of the declaration, as already stated, were true, but that the defendant in error had no knowledge, at the time of its publication, that the portrait printed was the portrait of plaintiff in error, or was other than the portrait of Mrs. Schuman.

S. C. Irving, for plaintiff in error.

John Barton Payne, for defendant in error.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP, Circuit Judge, after stating the facts, delivered the opinion.

The plaintiff in error indisputably has suffered a wrong, the gist of which is that by the publication of her picture in connection with a patent medicine advertisement, people who recognize the portrait will be led to think that she has loaned her face, and perhaps her name, in a way that a self respecting person would not have consented to. Were the case under review an application for an injunction to restrain future publications, or were it an action at law against the parties consciously responsible for the make-up of the advertisement, a question wholly different from the one presented by this record would. be involved.

The first question presented here is, whether the plaintiff in error made out a case of libel in her declaration and proof-the gravamen of the action, as set forth in the declaration, being, that whereas plaintiff in error was not a nurse, and did not either for herself, or as nurse, use Duffy's Malt Whiskey as a tonic, the advertisement was calculated to convey the impression that she was a nurse, and that both for herself, and as nurse, she had used Duffy's Malt Whiskey as a tonic. This being the whole of the libel charged, and there being no averment

of special damages, the question is: Is such a publication libelous per se? We think not. It is not, in our opinion, libelous, per se, to say of a person that she is a nurse, or that she has used as a tonic Duffy's Pure Malt Whiskey, or has recommended its use. Nor do we think that these things said of a person, independently of other averments or circumstances, make out a case to go to a jury for determination. Doubtless there are people, by whom the use of whiskey as a tonic is considered wrong; and there may be people among whom to be a nurse, is considered something less desirable than not to be a nurse. But the world has not yet arrived at a consensus of opinion on these matters, that to say these things of a person is, independently of all other considerations, to libel him.

This brings us to the other count-that the publication of the advertisement is an invasion of plaintiff in error's right of privacy. The difficulty with this count, and with the proof in support of it is that defendant in error stood in relation to the advertisement as printer and distributer only, acting without knowledge that the face printed and distributed was that of plaintiff in error, or was not that of the person whose face it purported to be; and as printer and distributer of matter offered as advertising matter, there cannot be indulged that presumption of malice that might possibly be indulged if the matter were printed as a part of the newspaper's collection of news. Now where there is no malice, and no technical trespass to realty or personalty, or other case involving the adjudication of title, or some other substantial right, which it was important to the plaintiff to establish, the maxim de minimis non curat lex is in some states applied, and recovery for nominal damages not allowed.

But we need not put an affirmance of the judgment below upon this ground. There was no request made in the court below for the allowance of nominal damages. There is no assignment of error that nominal damages were not allowed; so that there may be applied, we think, the doctrine prevailing in Indiana, New York, and other states. (no Illinois case, or cases from the United States Supreme Court having been brought to our attention) that a judgment under such circumstances will not be reversed for failure alone to give nominal damages. Rhine, Adm'r, v. Morris, 96 Ind. 81; Platter v. The City of Seymour, 86 Ind. 323; Funk v. The Evening Post Publishing Co., 76 Hun (N. Y.) 497, 27 N. Y. Supp. 1089.

The judgment of the Circuit Court is affirmed.

(154 Fed. 333.)

THE FRI.

(Circuit Court of Appeals, Second Circuit. April 30, 1907.)

No. 1,991.

1. SHIPPING-CONTRACT OF AFFREIGHTMENT-BILL OF LADING GIVEN TO CHAR

TERER.

When the charterer of a vessel is the shipper of the cargo, a bill of lading given by the master operates merely as a receipt for the goods and a document of title, and never, as between the shipowner and charterer, affects the terms of the charter party.

2. CONTRACTS-LEGALITY PUBLIC POLICY ENFORCEMENT OF FOREIGN CONTRACT PROVISION EXEMPTING CHARTERER FROM LIABILITY FOR NEGLIGENCE.

A provision in a contract of affreightment exempting a carrier by sea from liability for loss or damage to cargo "occasioned by negligence, default or error of judgment of the pilot, master or mariners," may be enforced in a court of the United States where the contract was made in a country by whose laws such stipulation was legal and no part of it was to be performed in the United States, and where it related to the transportation of property on a foreign vessel on a voyage which did not include a port of the United States.

[Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, § 498.] 3. SHIPPING-CHARTER PARTY-CHARTER OF AFFREIGHTMENT-LEGALITY OF PROVISIONS-PUBLIC POLICY.

When a charter party gives to the charterer the full capacity of the ship, the owner is not a common carrier, but a bailee to transport as a private carrier for hire, and a condition in such a contract, to which the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) has no application, exempting the shipowner from liability on account of the carelessness of its employés, is not contrary to public policy. Appeal from the District Court of the United States for the Eastern District of New York.

For opinion below, see 140 Fed. 123.

F. B. Brown and Butler, Notman & Mynderse, for appellants.
A. C. Weil and R. Weil, for appellees.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

WALLACE, Circuit Judge. The libel in this action was filed to recover the value of 706 head of cattle and 309 calves, belonging to the libelants, and shipped by them on the steamship Fri in September, 1902, at the port of Carthagena, United States of Colombia, for transportation to Cienfuegos, Cuba. The vessel sailed for Cienfuegos on September 24th, and two days later, shortly after midnight, stranded on the Bajo Nuevo reef, and in consequence the cattle had to be thrown overboard and were lost.

The stranding was caused by a fault of navigation on the part of the master of the steamship in failing, when he laid the vessel's course late in the afternoon of September 25th for passing to the eastward of the reef, to make due allowance for the strong set of the ocean current to the westward. He was an experienced navigator, but he had never navigated a vessel in that part of the Caribbean Sea, and relied concerning the force and direction of the prevailing currents upon the information he had sought from other navigators, and upon the instructions given in the charts and official publications with which he had been provided. But he permitted his judgment to be unduly influenced in departing from these instructions by his deductions based upon his own observations throughout the preceding day.

The controlling question presented by this appeal is whether under the contract of affreightment the vessel was relieved of liability to the libelants for a loss arising from this fault of navigation. The case involves to some extent a consideration of the law of the United States of Colombia, the country in which the contract was made.

The material provisions of the statutes of Colombia are those which provide that in the absence of a charter party the terms and conditions of a contract of affreightment are those stated in the bill of lading, and require the charter party to be in writing, or established by documentary or written evidence where the freight exceeds 200 pesos ($2), and those which permit parties to renounce any rights which relate only to the private interest of the renouncer. The testimony of the experts, lawyers of Colombia, justifies the conclusion that the unwritten law of the country permits and gives effect to stipulations in contracts of affreightment whereby the vessel and her owners are exempted from responsibility on account of errors or carelessness of employés in navigating the vessel.

The cattle were shipped pursuant to a charter party agreed to between the libelants and the owners of the steamship, in form such as had been executed between the parties on former occasions when the libelants had chartered steamers for cattle shipments of the vessel owners. It happened, however, that at the time of this agreement none of the blank charter parties were accessible, and the parties agreed that the blank forms such as had been customarily used between them should constitute the contract except as to the terms of freight. This agreement is satisfactorily established by documentary evidence. The shipper's agents by letter inquired whether the shippers accepted the clauses of the customary charter party, and to this letter the libelants replied in effect that their only objection was that they had not promised to pay freight for as many cattle as the Fri should carry, but only for as many cattle as they were able to load. Subsequently the master of the Fri delivered a bill of lading to the libelants, which was accepted by them, reciting $4,250 as the gross freight, a sum equivalent to the full capacity of the vessel. The libel alleges this sum as the agreed freight.

The blank form of charter party which had customarily been signed by the parties provided that the vessel should have the fittings and means of ventilation to comfortably and properly carry the cattle, and that the charterers should load the full capacity of the vessel, and contained a stipulation exempting the vessel and her owners from liability for errors of navigation "occasioned by negligence, default or error of judgment of the pilot, master or mariner." The bill of lading which was delivered to the libelants provided, among other things, that the shipment should be "subject to all the terms and provisions of, and all the exemptions from, liability contained in the act of Congress of the United States approved on the 13th day of February, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946], meaning the act known as the "Harter Act."

The ground upon which the court below condemned the vessel was that the disaster was caused by the negligence of the master, that the stipulation in the charter party was qualified by the provision in the bill of lading in reference to the Harter act, and that it had not been so satisfactorily proved by the owners of the vessel that they had used due diligence in the selection of the master as to enable them to obtain the benefits of the Harter act. In his opinion the District Judge said, speaking of the master: