Chenery v. Goodrich

98 Mass. 224 | Mass. | 1867

Bigelow, C. J.

In considering the several grounds of demurrer to the declaration in the present case, it is to be borne in mind that, under the rules of pleading established by statute in this Commonwealth, essential changes have been made in the forms of declarations at common law, especially in actions of tort brought for alleged slander and libel. Gen. Sts. c. 129, §§ 2,87. The more material of these alterations in their bearing on the present case are, that innuendoes are no longer necessary, it being sufficient simply to aver that the alleged libellous or slanderous words were published or spoken of and concerning the plaintiff; and that the inducement or introductory matter, and the colloquium,, including the reference to the inducement or prefatory statement, when it is necessary to an understanding of the alleged libellous or slanderous matter, are not required to be set forth with technical accuracy, but only in such manner as to make the words relied on intelligible to the court and jury in the same sense in which they were spoken or written.

It seems to us, in the light of these provisions, which were designed to abrogate the nice distinctions which the application of the strict rules of pleading at common law to declarations for slander and libel had created, that the first two grounds of demurrer- insisted on at the bar are not tenable.

1. The first ground is, that it does not appear from the declarations that the plaintiff is referred to in the alleged libellous publication. This, if true, would be a valid cause of demurrer. But, on looking into the count, we think it is substantially set forth that the libellous matter had relation to the plaintiff, and to his acts and dealings in connection with the transaction stated in the inducement or prefatory averments which precede the alleged defamatory publication. It is distinctly averred that the plaintiff, at the time the acts were done as set forth in the preliminary statement, was doing business under the name of Chenery & Co. It is also averred that the defendant, with an intent to cause it to be believed that the plaintiff conducted fraudulently in the transaction previously stated, published the alleged libel of and concerning the plaintiff. These averments sufficiently connect the plaintiff with the facts recited in the preliminary part of the declaration and with those referred to in the alleged libel. It may be true that there is no such distinct allegation of the plaintiff’s connection with the transactions set forth in the preliminary recital of facts, and with those referred to in the alleged libellous matter, as would have been necessary under the old rale of pleading. Such absolute precision of averment is no longer necessary. Applying to the declaration before us the test prescribed by the statute, we think it is made to appear not only that the plaintiff was the actor in a particular transaction which is substantially set forth, and that he conducted it under a certain name or style, but it is also made intelligible that the defendant by the alleged libellous publication intended to cause it to be believed that the plaintiff conducted fraudulently in such transaction, and published the alleged libel concerning the plaintiff with that intent. It seems to us that there is no doubt or ambiguity in the averments; that they are sufficient to an understanding of the words in the sense in which they were written and published; and that they substantially conform to the provisions of law regulating the pleadings in actions of this nature.

2. The second ground of demurrer is similar to that already considered, and must be disposed of on like grounds. It is apparent, taking all the recitals and averments together, that the alleged libellous publication had reference to the matter as set forth in the previous part of the declaration, and that the intent and meaning of the language was to charge the defendant with the use of falsehood and fraud in relation to such matters with a design to deprive the government of a certain sum of money which was justly due for duties on the merchandise therein referred to.

3. The third ground of demurrer relates to matters of substance, and not to merely formal errors or defects. The objection is, that, taking all the facts set out in the declaration as true, and assuming that they relate to the plaintiff, and are intelligible as being connected together and as having reference to the conduct ( of the plaintiff in relation to one and the same transaction, nevertheless the publication is not actionable. This position rests on the familiar principle that a plaintiff cannot found an action upon any cause or subject matter which renders it necessary for him, in order to maintain the action, to prove that he was engaged in a violation of law. It is urged that the proper application of this principle to actions of slander and libel leads to the conclusion that no action will lie for defamatory words, either spoken or written, which merely relate to the conduct of a party while engaged in unlawful dealings or transactions. But we fail to see that this principle can be properly applied to the case stated in the declaration. The defendant’s counsel seems . to concede that to bring the case at bar within the rule it must appear from the averments that the publication was made concerning the plaintiff and his doings while he was knowingly participating in a transaction intended to accomplish a purpose forbidden by law. It seems to us, on an analysis of the allegations set forth in the declaration in connection with the preliminary statements, that they do not set forth any criminal or unlawful intent or act on the part of the plaintiff or any participation in the illegal purpose or doings of another. It is to be borne in mind that the question is not what the actual transaction was which took place between the plaintiff and the storekeeper and other officers of the United States in relation to the entry and intended withdrawal of the merchandise referred to, but what it is stated to have been in the averments and statements of the declaration. Looking only at these, it is not alleged, nor does it appear by implication, that the plaintiff did any unlawful act, or participated in or connived at any transaction which he knew to be unlawful, or that he acted with any illegal intent whatsoever in relation to the matters set forth in the declaration. On the contrary, the averment is that the plaintiff made a correct and true statement of facts to the officers of the customs in accordance with what he believed to be the law and usage in relation to the subject matter referred to. But it is not alleged that the plaintiff altered any receipt, or connived at any false entry of goods, or fraudulently received any goods from the custody of the officer of the United States. Now, although it may be true that the alteration of the receipt was erroneous, and that by the true construction of the acts of congress the original date was correct, it by no means follows that the plaintiff was guilty of a violation of law in any such sense as to justify or excuse the defendant in holding him up in connection with the transaction to public hatred, contempt and ridicule.

But, if we are wrong in this view of the case, we are clearly of opinion that the action is maintainable on another ground. If the conduct of the plaintiff in connection with the transaction to which the publication relates was open to comment and criticism for the reason that he participated in acts which were contrary to law, and in consequence thereof no action can be maintained for a libellous publication which relates solely to the plaintiff’s connection with such unlawful acts, nevertheless there is a limit beyond which such immunity from liability for defamatory words cannot be carried. Unless the matters set forth in a declaration are of a nature which indicates that the plaintiff’s acts and conduct in connection therewith necessarily involved moral turpitude, or might fairly be held to affect his general character in any particular, a publication which held a party up to contempt and reproach as wanting in integrity or as otherwise culpable in his general conduct or character would be actionable, although it might also relate to the plaintiff’s participation in an illegal transaction. A person does not necessarily forfeit all legal claim to protection against defamatory matter affecting his character, because he has been guilty of a single illegal act. Now, although the plaintiff, acting on certain facts and in conformity to what he supposed to be the law and usage in similar cases, may have committed a violation of law, or participated in the illegal act of another, it by no means follows that his general character for commercial integrity and fair dealing was thereby forfeited, or so far affected that he could not maintain an action for a publication which held him up to the public as wanting in the qualities and characteristics of a merchant of integrity and honor. Greville v. Chapman, Dav. & Meriv. 552. Such we think was the fair import of a portion of the written words which are set forth in the declaration. For the publication of these this action can be maintained, although it may be also true that it appears from the declaration that the publication related to the plaintiff’s conduct in a transaction which was unlawful. Demurrer overruled.