Ellis v. Brockton Publishing Co.
84 N.E. 1018
Mass.
1908
Check Treatment
Rugg, J.

The question whether the article was published of and concerning the plaintiff was properly left to the jury to be determined as a fact. It is only where there is no ambiguity as to the meaning of the language used, in connection with all the attendant circumstances, that it becomes a question of law. Barrows v. Bell, 7 Gray, 301. But it has been said frequently that this is usually a question of fact. Hanson v. Globe Newspaper Co. 159 Mass. 293. The published article described the plaintiff by his right name, and it contained at least one paragraph, which concededly referred to events in his life. This identified him as its subject. Although there were other state-. ments which, to those intimately acquainted with his work and residence, might have been known not to be true of him, yet they are so connected and interwoven with the other assertions, that, plainly, it could not have been ruled as matter of law not to refer to the plaintiff. The structure of the article, published by the defendant, was such that it cannot reasonably be thought to refer to two different persons. It conveys no such intimation to the mind of the ordinary reader.

On the day when the defamatory article appeared in the Brockton Times, the plaintiff with his mother called at the office of the defendant, and pointed out to its agents the error, so far as it concerned the plaintiff. The agent of the defendant said that everything would be done to set the matter right, and in the next issue of the defendant’s newspaper, a retraction was printed in a conspicuous place. No written notice was given by the defendant to the plaintiff or his attorney of an intention to publish the retraction. It was published as soon as possible .after the interview between the plaintiff and the agent of the *542defendant. These events occurred before action was brought. The defendant contends that E. L. c. 173, § 92, applies. It is extremely doubtful whether this statute touches these facts, No “ notice in writing ” was given nor was any copy of the proposed retraction shown by the defendant to the plaintiff or his attorney, so that the procedure pointed out by the statute was not followed. There is ground for the argument that the statute was intended to be effective only after action brought, and not before, to which force is added from the fact that in some jurisdictions it has been held that a retraction published after the commencement of an action is not admissible in evidence. Scripps v. Reilly, 38 Mich. 10. Constitution Publishing Co. v. Way, 94 Ga. 120. The effect of the publication of a retraction has never been presented for decision in this Commonwealth. The publication of an ample retraction immediately upon learning that a libellous article has appeared in his columns, by the proprietor of a newspaper, is evidence tending to show an absence of malice. The practical value of such evidence is probably less here, where punitive or exemplary damages are not allowed, than in States where recovery of such damages is permitted. But it has been said that “no doubt a manifestation of malevolent motives might enhance damages under our rule allowing damages for injured feelings.” Burt v. Advertiser Newspaper Co. 154 Mass. 238, 245. The publication of a retraction, complete in character and conspicuous in position, .might be found to have a material effect in diminishing the mischief caused by the libel, and thus substantially reduce the damages sustained by the person libelled. The retraction was properly admitted in evidence quite apart from the statute. The great weight of authority supports this view. Smith v. Harrison, 1 F. & F. 565. Brown v. Brooks, 3 Ind. 518. Davis v. Marxhausen, 103 Mich. 315. Turton v. New York Recorder Co. 144 N. Y. 144. Taylor v. Hearst, 118 Cal. 366. Cass v. New Orleans Times, 27 La. Ann. 214. Lehrer v. Elmore, 100 Ky. 56.

But even if it be assumed that the statute applies to a state of facts like the present, the prayers of the defendant that the plaintiff could not recover for mental suffering and was entitled only to nominal damages were properly refused. The significant words of the statute, after the provisions respecting retraction, *543are “ Unless the plaintiff proves actual malice or the want of good faith, or a failure either to retract or offer to retract as aforesaid, he shall recover damages only for the actual injury sustained, but in no action of libel shall exemplary or punitive damages be allowed.” As before pointed out, the recovery of vindictive, exemplary or punitive damages has never been permitted in this Commonwealth. Burt v. Advertiser Newspaper Co. 154 Mass. 238. Hence this part of the statute is at most declaratory of the common law. The early portion quoted is not clear in its meaning. It would have a plain purpose in jurisdictions where punitive damages are recoverable. This rule prevails in many, although not all, of the other States of the Union. In these States, “actual damage or injury” has been used in contradistinction to vindictive damages and has been construed to include damages to feelings and reputation as well as the grosser forms of injury. Gatzow v. Buening, 106 Wis. 1. Ross v. Leggett, 61 Mich. 445. So Relle v. Western Union Telegraph Co. 55 Texas, 308. Western Union Telegraph Co. v. Lawson, 66 Kans. 660. Hearne v. De Young, 132 Cal. 357. Lord v. Wood, 120 Iowa, 303. In this Commonwealth the damages recoverable in actions of tort have always included only compensation for those injuries which flow from the wrong as a natural result. But, in actions of libel and slander, such damages have invariably been held to include compensation for wounded feelings and loss of reputation. The unjustifiable publication of a libel might naturally cause suffering in one’s feelings quite as poignant as physical pain and pecuniary loss through injury to one’s reputation fully as severe as the loss of a limb. The one is as strictly actual damage as the other. Burt v. Advertiser Newspaper Co. 154 Mass. 238, 245. The part of § 92, which relates to retraction, made certain what had not been decided in this State, that such a publication subsequent to the bringing of an action is admissible in evidence. It is more reasonable to assume that the clause as to actual damage found its way into our statute through an excess of caution, than to assume a legislative intent to use the words “actual injury ” in a sense foreign to our jurisprudence. Such an assumption would render the statute extremely hard to construe, and might in some aspects involve constitutional difficulties. See Park v. Detroit *544Free Press Co. 72 Mich. 560. It may reasonably be interpreted as merely declaratory of the common law and emphasizing the fact that punitive damages are not here recoverable, which is the effect of the latter part of the same sentence. The charge of the trial judge that the plaintiff might recover damages for mental suffering and injury to his reputation was not error.

Exceptions overruled.