Davis v. New England Railway Publishing Co.

203 Mass. 470 | Mass. | 1909

Knowlton, C. J.

The plaintiff is the proprietor of the Northern Express Company, which carries merchandise between Boston and many cities and towns in Massachusetts, Maine and New Hampshire. He also sublets portions of his office to the proprietors of other express companies doing business in or near Boston. The defendant corporation is the publisher of the “A B C Pathfinder and Dial Express List.” The bill contains the following averments: “ This publication is the only one of its kind issued or in circulation in Boston. The publication is in a form intended and calculated to create in the minds of the public the belief that 'it contains the namesx of all the reputable local expresses doing business in Boston and vicinity. It has created, and does now create, such belief in the minds of the public. This belief is the main, if not the sole, reason inducing purchases of the publication by the public. This belief has enabled the defendant corporation to obtain a large circulation among the business houses and general public in Boston and vicinity. The publication is usually and frequently consulted by persons having occasion to employ a local express. It has come to be accepted by the general public as the recognized directory of local express companies.” There are other averments showing some of the particulars of the contents of the publication, which tend to support the above general averments, and particularly the averment that it is intended and calculated to create in the minds of the public the belief that it contains the names of all the reputable local expresses doing business in Boston and vicinity. A copy of the publication is made a part of the bill, and it tends to confirm and strengthen this averment. It is averred that “the plaintiff and each of his subtenants is conducting his express business in a lawful and proper manner, and to the convenience and satisfaction of his patrons,” — in substance, that these express companies are reputable, and that “ no good reason exists why the defendant corporation should discriminate against them, or any of them, or should exclude reference to them, or any of them, from its publication.” It is averred that the defendant corporation has omitted any reference in its publication to the business of the plaintiff or of his subtenants, and that it is about to bring out another issue of the same general publication, and has been requested to include the plaintiff’s office in the list of express offices, and to make reference to the express business of the plaintiff and his subtenants, and has refused and still refuses so to do. The plaintiff also alleges that the defendant corporation refuses to assign any reason for its objectionable conduct.

It is alleged that the other two defendants control a majority of the general local express companies whose names appear in the publication, that they have an acquired and dominating influence in this business in Boston, and are seeking to obtain an absolute monopoly of this kind of business, to the exclusion of the plaintiff. He avers that they h,ave conspired together to prevent the publication by the defendant corporation of any reference to the business of the plaintiff and his subtenants, and by threats and false statements have induced the defendant corporation to leave the plaintiff and his business without mention in the publication.

The case comes before us on a demurrer, which, for the purposes of the hearing, admits the truth of all the averments of the bill.

The ground on which the plaintiff seeks relief is not that he has a right to compel the defendants or either of them to do, anything for his benefit, but that he has a right to have them refrain from intentionally doing anything, without legal justification, to his injury. The defendant corporation professes to give the public a full list of all the reputable express companies doing business in Boston. While it does not say in express words that the list is complete, that is the meaning which the publication is intended to convey and does convey. Its list is false and misleading, to the plaintiff’s injury. One purpose of the list is to show the public where they can go to get their express business done. Another purpose is to give the express companies named in the list the benefit of having their names and the nature of their business brought before the public who have such business to be done. The direct effect of the false statement is to point those who want the services of an express company to other companies, and to divert them from the plaintiff. They are told, in substance, that there is no such person as the plaintiff, and no such company as the Northern Express Company, engaged in this kind of business. The averment of the plaintiff that he is greatly injured in this way is no more than a statement of the natural result of publishing a directory of express companies with his name and the name of his company left out of it. An intentional act of this kind, without excuse, is a violation of his legal rights. It is the publication of a falsehood concerning him, the direct and natural effect of which is to injure him in his business. The public is misled by the intentional publication of an incorrect list. But the gist of the plaintiff’s action is the wrong done him by intentionally turning away from him those who otherwise would do business with him. He is entitled to a remedy for this wrong.

It is peculiarly a case for equitable relief. The wrong is a continuing, and in a sense an irreparable one. The extent of the injury cannot be measured accurately in an attempt to assess damages.

The injury is to property, and it is not technically a libel upon the plaintiff. The rule that a court of equity will not enjoin the mere commission of a crime does not apply. The conduct complained of works a continuing and permanent injury to the plaintiff’s property. Upon proof of the facts set out in the bill, the plaintiff will be entitled to an injunction to protect him from the wrongful publication.

The defendants Kelley and Sampson are alleged, not only to have participated in the wrong, but to have instigated it. It is said that, for their own interests, and to obtain a monopoly in certain departments of the express business, they made false statements about the plaintiff to the other defendant, and threatened injury to the other defendant’s business, in order to induce wrongful publication. Upon proof of these facts and the other averments of the bill, the plaintiff is entitled to an injunction against these defendants, to prevent them from attempting to procure this wrongful kind of publication in the future. He has a right to have the other defendant relieved from the temptation to continue the wrongful publication, to which their misstatements and threats might subject it.

Their desire to advance their own interests, in competition, is not a justification for attempting to interfere with the plaintiff’s business by misstatements, and the making of a false and misleading publication. Carew v. Rutherford, 106 Mass. 1. Walker v. Cronin, 107 Mass. 555. Sherry v. Perkins, 147 Mass. 212. Vegelahn v. Guntner, 167 Mass. 92. Plant v. Woods, 176 Mass. 492. Berry v. Donovan, 188 Mass. 353.

The bill is not multifarious in seeking relief against all of these defendants. In different ways they were all participating in the infliction of an injury on the plaintiff and his subtenants. To a degree, each was responsible for the commission of the wrongful act. Their relations to the matter complained of were such that it was proper to join them, so that the plaintiff might obtain relief at one time against all the persons engaged in the interference with his rights of property, in order to protect him, if possible, from a repetition of the wrong. It is proper, too, that the defendant corporation should have protection against a continuance of threats and false statements by the other two defendants.

Demurrers overruled; defendants to have leave to answer.