Barrows v. Bell, 73 Mass. 301

Barrows v. Bell

73 Mass. 301 | Mass. | 1856

Shaw, C. J.

The present is an action of tort, brought to recover damage for a publication alleged to be a libel upon the plaintiff, consisting of an article published in the Boston Medical and Surgical Journal, under the direction of the defendant.

The article alleged to be libellous is headed, “ The suits against the Massachusetts Medical Society,” and it proceeds to give a brief account of the proceedings of the medical society, which resulted in the expulsion of the plaintiff from his membership, for misconduct. It proceeds also to state that several suits have been commenced by the plaintiff against members of the society, for libel, one against the member who made the motion for his expulsion, and one against the member who seconded it. It also states that the plaintiff simultaneously initiated a process by writ of mandamus; that the medical society assumed the responsibility of the defence of these proceedings, and appointed a committee of three for that purpose, of whom the defendant was one. It states that these legal proceedings have all terminated favorably to the society and its members, and comes to the conclusion, “ here ends, we suppose, all further litigation,” and adds a few concluding remarks, in regard to the powers of the society, and the propriety of exercising them, in the discharge of its duty and the vindication of its rights, The article is then followed by some remarks respecting the character and condition of the society and the medical profession, which the defendant states in his answer have no reference to the plaintiff whatever.

In his answer, the defendant admits the publication, but *310alleges that the part of the said publication, which relates to the plaintiff, is a true and correct statement of the official proceedings of the medical society, published for the information of the medical profession, and with no intent to injure the plaintiff. And he alleges that all the other portions of the said publication relate to other persons and subjects, and were not written of and concerning the plaintiff.

On the trial, as appears by the report, the plaintiff proved the publication and the extent of the circulation of the Boston Medical Journal, and there rested.

The defendant then offered evidence to show the course of proceedings before the medical society, and the expulsion of the plaintiff for alleged misconduct, the fact that legal proceedings had been instituted by the plaintiff, as stated in the publication, and that they had been terminated in the manner therein stated.

The question now is in relation to the correctness of the instructions upon this evidence, which the judge who tried the cause announced and proposed to give to the jury. They are thus stated: “ The judge thereupon called upon the plaintiff’s counsel to state whether they expected to offer evidence to control the proof offered of the justification, or to connect the plaintiff with the last part of the publication; to which they replied, that they should not offer any evidence, but should contend that the jury might infer that the latter part of the publication did refer to the plaintiff, from the article itself, and the proof already offered.”

Upon this point, we think the decision of the judge was correct. The declaration contained no averment of any fact which would affect the meaning of the language, no innuendo pointing any expression or allusion therein made to the plaintiff, and no colloquium alleging that the language was used of and concerning the plaintiff. In the absence of all such averments, we think the ordinary and natural meaning and construction of the language was a question of law for the court; and therefore it was not to be left to the jury, to say whether it was written of and concerning the plaintiff.

*311In regard to the other point, the judge proposed to instruct the jury, that if they were satisfied on the evidence that the other part of the publication was true, the defendant would be entitled to a verdict.

The plaintiff’s counsel contended, that the publication itself was a charge by the defendant against the plaintiff of a fraudulent transaction, and the defendant, in order to justify, must on this trial prove the truth of that charge, that is, prove, by evidence to be offered here, that the plaintiff had been guilty of being engaged in such fraudulent transaction. But the judge ruled otherwise, and declined to leave it to the jury,whether the article itself was a charge of a fraudulent transaction. This last, we think, was quite right; whether the article purported to be a charge of fraud made by the writer upon the plaintiff, or whether it was an allegation that such a charge had been made against the plaintiff before the medical society, was a question of construction, and properly decided as a question of law.

The result then of this charge was, that if the publication, as far as it went, was a true, just and fair statement that such a charge of fraudulent transaction had been made to the medical society against the plaintiff, a member thereof, and determined and decided by them, and this report of the proceedings was made for the proper purpose of informing the medical profession and the public of the result of those proceedings, then it was justifiable, and not libellous. And the question now is, was that direction right ? The plaintiff insists that it was not.

The ground now taken by the learned counsel for the plaintiff, that the defence of the first part of the publication, if proved, constitutes no legal justification of the publication, is stated more broadly, and in more unqualified terms, than the authorities of the English common law will warrant. The general rule is, that any statement of wrongs and grievances, made by a party alleging himself injured thereby, though they affect the reputation and credit of another, if made to a tribunal or body having jurisdiction of the subject matter, to inquire into the proceedings and redress the grievance complained of, if found to exist, are not libellous; and that a fair statement of these proceedings *312when they have been acted upon and decided, made with an honest view of giving useful information, and where the publication will not tend to obstruct the course of justice and interfere with a fair trial, is not a libellous publication. Most of the cases relied on in the argument are these exceptional cases ; as M'Gregor v. Thwaites, 3 B. & C. 24, where the parties merely went before the magistrate for advice, and he was not called upon to act in his official capacity; and Duncan v. Thwaites, 3 B. & C. 556, where the publication was of a mere preliminary examination, when a further hearing was ordered. Several other cases turn on the same point, and proceed on the ground that such proceedings are inchoate and ex parte, and ought not to be published before the trial, when the party charged has an opportunity to make his defence. The publication of the ex parte evidence taken before a coroner was held unjustifiable on the same ground. The King v. Fleet, 1 B. & Ald. 383.

So in Roberts v. Brown, 10 Bing. 519, where it was held, that the publication of the defendant was not a true and correct statement of the proceedings, and where such statement was accompanied by libellous remarks of his own, not warranted by the proceedings. But in that same case Mr. Justice Park introduces his opinion by this remark: “ I am not prepared to say that reports of proceedings in courts of justice are not to be encouraged as instructive and beneficial to the public; but they must be accurate and fair reports ; and it is by no means clear that a party is justified in publishing, without discrimination, every thing that falls from the mouth of counsel.”

The case of Delegal v. Highley, 3 Bing. N. C. 950, was an action for malicious prosecution before a magistrate, and also for libel in publishing an account of the proceedings thereon. In regard to the latter, the court held, upon a plea of justification, that it was bad and insufficient, because it did not state that the publication was a true, full and faithful account of the proceedings in a court of justice, and therefore was not justified by the occasion.

We have stated above that we think the English rule, holding that, to justify the publication, the proceedings must he directly *313judicial, or had in a court of justice, is stated too broadly., Ir many cases it has been held that complaints made to a tribuna or officer, who is supposed to have power to inquire into and redress the grievance, if honestly made, by one having an interest, though such tribunal has no jurisdiction, are not libellous; as in a petition to the king, to parliament, to a board of officers, or the like. Fairman v. Ives, 5 B. & Ald. 642, was the case of an address by the defendant to Lord Palmerston, secretary at war, against the plaintiff as an officer of the army, setting forth falsehood and dishonorable conduct in the plaintiff in not paying him an acknowledged debt. It was held, that though the secretary at war had no direct power to act, yet if the defendant believed that he could aid him, by his influence, to obtain redress, it would rebut the charge of malice, and render the address not libellous, though otherwise it would be. The doctrine is there fully discussed, and many cases are cited other than proceedings strictly in the course of justice. See also M’Dougall v. Claridge, 1 Campb. 267, and Fowler v. Homer, 3 Campb. 294, and the cases cited in the notes to the American edition.

But whatever may be the rule as adopted and practised on in England, we think that a somewhat larger liberty may be claimed in this country and in this commonwealth, both for the proceedings before all public bodies, and for the publication of those proceedings for the necessary information of the people. So many municipal, parochial and other public corporations, and so many large voluntary associations formed for almost every lawful purpose of benevolence, business or interest, are constantly holding meetings, in their nature public, and so usual is it that their proceedings are published for general use and information, that the law, to adapt itself to this necessary condition of society, must of necessity admit of these public proceedings, and a just and proper publication of them, as far as it can be done consistently with private rights. This view of the law of libel in Massachusetts is recognized, and to some extent sanctioned, by the case of Commonwealth v. Clap, 4 Mass. 163, and many other cases.

A recent case in this commonwealth appears to us to be an *314authority in point. Farnsworth v. Storrs, 5 Cush. 412. It was a suit by husband and wife against a clergyman for libel, which consisted in reading a written paper before the church and congregation, being votes previously passed by the church, reciting that the female plaintiff had been dealt with by the church, found guilty and ordered to be excommunicated, for alleged unchaste conduct before her marriage, with the man whom she afterwards married, being then a member of the church, and refusing to express any penitence for the crime. Upon a case stating these facts, the court decided that an action would not lie, on the ground that churches are voluntary bodies, associated for lawful and useful purposes; that they are recognized and their privileges conferred by law, among which is the authority to deal with members for immoral and scandalous conduct, and punish them, on conviction, by censure, suspension or excommunication ; that to this jurisdiction every member, by entering into the church covenant, submits; that these proceedings are quasi judicial, and all those who complain, act and vote thereon, or pronounce the result, orally or in writing, in good faith, within the scope of the authority conferred, and not falsely or colorably, are protected by law.

The Massachusetts Medical Society were not a private association ; they were a public corporation, chartered by one of the earliest acts under the Constitution, which was amended and their powers confirmed by several subsequent acts. Sts. 1781, c. 15; 1788, c. 49; 1802, c. 123; 1818, c. 113.

The charter invested the society, their members and licentiates, with large powers and privileges, in regulating the important public interest of the practice of medicine and surgery, enabled them to prescribe a course of studies, to examine candidates in regard to their qualifications for practice, and give letters testimonial to those who might be found duly qualified. They were authorized to elect fellows, and vested with power to suspend, expel or disfranchise any fellow or member, and to make rules and by-laws for their government. No person could be a member, but by his own act in accepting the appointment.

This society was regarded by these legislative acts as a public *315institution, by the action of which the public would be deeply affected in one of its important public interests, the health of the people. The plaintiff, by accepting his appointment as a fellow, voluntarily submitted himself to the government and jurisdiction of the society in his professional relations, so long as they acted within the scope of their authority.

The status or condition of being a member of this society was one of a permanent character and recognized by law—one in which each member has a valuable interest; and that it was so regarded by the plaintiff is manifest from his effort to obtain a restoration to it by a judgment of this court, by a writ of mandamus.

We think it obvious that the subject matter of the complaint —dishonorable conduct, a fraudulent transaction between the plaintiff and another member of the profession and of the same society—was within the scope of the authority conferred by law on the society; and that the direction of the court, that their action was conclusive upon the plaintiff, was correct. As to the legal proceedings set forth in the supposed libel, it was admitted by the plaintiff’s counsel that the account there given of those proceedings was substantially true.

If then this charge of dishonorable or fraudulent conduct by the plaintiff, in his dealings with Dr. Carpenter, was within the jurisdiction of the medical society, and proceedings were instituted and carried on to their final determination in the expulsion of the plaintiff from his fellowship, then the proceedings might be rightly characterized, as in the case of Farnsworth v. Storrs, as quasi judicial; and then the only remaining question of fact was, whether the publication was a true and correct narrative of such proceedings and determination. This question the judge did leave, or proposed to leave, to the jury; with the direction, that if they should find upon the evidence that that part of the publication was true, the defendant would be entitled to a verdict. We are of opinion that this direction was right. As the verdict was for the defendant, we are to assume that it was found by them; or, if the verdict was taken by consent, it would have been found under the instruction that the publication did *316present a true and correct narrative of the proceedings before the society, and their determination thereon.

The fact, that these proceedings were considered closed and finished, takes away from this publication the objection, that it would have a tendency to prejudice the public mind and prevent the party affected from having a fair trial.

Judgment on the verdict for the defendant.