Donaghue v. Gaffy

53 Conn. 43 | Conn. | 1885

Loomis, J.

In admitting evidence to show the mental pain and distress of each of the plaintiffs we think the court below erred.

The complaint is so drawn as to restrict the claim for damages to the injury to the joint business of the plaintiffs. The allegation is that “ the plaintiffs are engaged in the liquor business in Hartford, under the name of Donaghue Brothers, and said circular ” (referring to the alleged libel) “ was so distributed among their customers for the purpose of injuring and destroying their business, and the effect of the same has been and will be to cause customers to decline and refuse to buy of the plaintiffs, whereby the plaintiffs have been and will be subjected to heavy pecuniary loss.”

Again, the alleged libel upon which the complaint was founded was clearly directed against the firm rather than the individuals composing it. At the outset the circular proposes to state the defendant’s experience with the firm of Donaghue Brothers, and the word “firm” or its equivalent is repeated five or six times, and the conclusion from the facts stated is very explicit—that “the firm of Donaghue Brothers are not worthy of our support.” From these considerations the error in the ruling referred to will be sufficiently apparent without any citation of authorities. -We will only add that it is well settled that in an action for libel by two or more partners, damages cannot be recovered for any injury to their private feelings, but only for such injury as they may have sustained in their joint trade or business. Folkard’s Starkie on Slander and Libel, (4th Eng. Ed., Wood’s Notes,) Sec. 189; Haythorn et al. v. Lawson, 8 Car. & P., 196; Tayler v. Church, 9 Johns., 281.

Were the complaint for a distinct libel on the plaintiffs as individuals, it would still be objectionable, because it would make a joint claim of that which in its nature must be several. In England, under the new special rules that obtain there, it may perhaps be - allowed, but not in this country. In Kinkle v. Davenport, 38 Iowa, 355, it was held that a joint action for slander cannot be maintained. If the same slanderous words be at the same time spoken respecting several persons, they furnish ehch a ground for a separate action, but they have no community of interest, and they cannot sue together.

But the plaintiffs claim that if the ruling is conceded to be erroneous a new trial ought not to be had because the damages awarded were small, and the only gain to the defendant resulting from a re-trial would be a slight reduction in the amount. And they cite in support of the principle Buddington v. Knowles, 30 Conn., 26, Burns v. Fredericks, 37 Conn., 92, and Hull v. Bartlett, 49 Conn., 66.

We do not think the principle of these decisions applicable to the case at bar, for the reason that all the damages allowed by the jury for mental suffering were improper, and the case does not disclose any other damage proved or even claimed. The mis-trial therefore, for aught we know, resulted in a judgment wholly erroneous.

But it may be suggested that nominal damages must have resulted from proof of the alleged libel, without any evidence of actual damage. This would follow if the words were actionable per se, otherwise special damage would have to be proved. Ought then the circular to 'be construed as containing a libel per se ? We think not. All parts of the paper should be read in connection to collect the true meaning. If so read, the severe epithets applied to the plaintiffs lose all their force except as they attempt to characterize a single transaction, which is manifestly referred to as the sole foundation for all the statements made. That transaction, or “ experience ”as the circular calls it, clearly shows that the epithets—“base treachery” and “foul and unfair dealings,” are not to have their ordinary meaning. The gist of the whole matter is thus stated by the defendant: —■ “ I have been in the habit of buying nearly all my goods of them for years, but, because I quit buying of them, they •went to the Middletown Savings Bank, of whom I rented my place, and offered ten dollars more a month than I was paying, and, after getting their lease of the premises, served a notice on me to immediately vacate.” Now all this is a perfectly lawful transaction whatever the motive ; and how can we legally presume from such a statement that the plaintiffs were thereby degraded in the estimation of ac: quaintances or the public, or that they suffered loss in character, property or business ?

Leaving' out the epithets which express -the defendant’s opinion as to the character of the transaction he relates, the analogy is perfect between this case and that of Homer v. Englehardt, 117 Mass., 539, where it was held that, to publish of a saloon keeper that “ to get rid of a just claim in court he set up as a defense the existing prohibitory liquor law; we feel it our duty to make such conduct publicly known, in order to caution beer brewers and liquor dealers,” was not libelous. And in Bennett v. Williamson & Burns, 4 Sandf., 60, it was held not libelous per se for the defendant to publish in a newspaper that “ the plaintiff requested the holder of a note, of which he was the maker, to wait for payment after the same had matured; that the holder waited accordingly, and afterwards, the note being sued, the plaintiff pleaded the statute of limitations and got off scot free.”

The defendant further claims that the court erred in holding that he could not, under the general issue, prove the truth of the alleged libel, inasmuch as it was alleged in the complaint to be false and malicious, making that an essential part of the plaintiffs’ case and calling on them to prove it, and so allowing the defendant to disprove it under his general denial. This court has adhered inflexibly to the rule laid down in Swift v. Dickerman, 31 Conn., 295, and in other cases there referred to, that the truth must be specially pleaded if the defendant wishes to take advantage of it, either for justification or for the mitigation of the damages.

We discover nothing in the Practice Act which should change the rule. Upon principle however it would seem that if the matter charged is not libelous per se, so that the law would infer malice, and neither the libel itself nor the circumstances indicate any actual malice, the plaintiff might well be required to furnish evidence of the fact in order to recover, and the defendant be allowed to disprove it even by showing the truth under a general denial. In this case, although the circular may not be libelous per se, yet it carries on its face evidence of personal animosity equivalent to actual malice, so that we think the general rule that has hitherto obtained in this state applies and that the ruling referred to was correct.

The remaining question is, whether the court erred in overruling the motion in arrest for any of the special reasons assigned by the defendant; for we shall confine ourselves to these alone. A part of the reasons it is evident are inapplicable upon our construction of the complaint and the alleged libel, and the remaining reasons, if true, were cured by the verdict. This is all we need say, except to call attention again to the Practice Act, which in terms requires that “ all defenses, other than those to the jurisdiction or in abatement, shall be made by an answer or by a demurrer,” and that “ all demurrers shall distinctly specify the reasons why the pleading demurred to is insufficient.” And the spirit of the Practice Act accords well with the letter, in that its design is manifest to have all formal and technical objections made known as early as practicable,, so that the plaintiff may amend or proceed anew, and the parties may, as expeditiously and inexpensively as possible,, reach and settle their controversy upon its merits. Wall v. Toomey, 52 Conn., 39; Trowbridge v. True, id., 107 ; Merwin v. Richardson, id., 233.

While we may regard the omission to demur to defects appearing on the face of the pleadings as a waiver of the objection, yet we reserve the right, in cases brought before this court for review, to consider questions not legitimately raised, if the objections are of such character its to nullify the proceedings and set aside the judgment on writ of error.

There was error in the judgment complained of, and a new trial is ordered.

In this opinion the other judges concurred.