Ellis v. Kimball

| Mass. | Oct 15, 1834

Shaw C. J.

delivered the opinion of the Court. It is now impossible to contend, that a man may not be as grossly libelled, as effectually exposed to hatred, contempt, and ridicule, by a caricature as by written language. Indeed to say, that a man is shown up, a phrase which manifestly has its origin in graphic exhibition, though it may be used figuratively as expressive of other modes of assailing reputation, is used to express significantly and strongly, that his pretensions to character and reputation are put down. Without contesting this general principle, the counsel for the defendant have moved in arrest of judgment, on the ground, that the scandal upon the plaintiff individually is not charged in the declaration with sufficient distinctness. The first exception is, that it is rather charged as a libel upon the court-martial than upon the plaintiff. The principle is undoubtedly correct, that where slanderous or libellous matter is published against a class or aggregate body of persons, an individual member, not specially included or designated, cannot maintain an action, for this, among other reasons, that the body may act very corruptly or disgracefully, yet the individual may have been in the minority and may have opposed the measures alluded to. But where many individuals are severally included in the same attack, whether by the language of the satirist or the pencil of the caricaturist, the plaintiff is not the less entitled to redress, because others are injured by the same act. Then the question is, whether, on the whole, the declaration does aver with sufficient certainty, that the plaintiff is individually held up tc contempt. What is said about the existence and sitting oi the court-martial, is material by way of averment, to give effect to the other parts of the charge, but so far as the declaration alleges, that other members of the court-martial itself were held up to ridicule, it may be deemed to contain mere surplusage

The declaration, after the usual averments and colloquia, goes on to state that the defendant composed and published a defamatory libel and caricature consisting of a lithographic picture and representation of said court-martial, and of the plaintiff as a member thereof, that said court, and the plaintiff as a member, were pointed out, and represented in an awkward, ludicrous, and contemptuous [contemptible] light, posture, and condition.

Two exceptions are in effect taken to this : first, that it is an attack upon the court-martial ; and secondly, that the awkwardness &c. are not described with sufficient certainty. The answer to the first is already intimated, that the averments respecting the court-martial were proper to introduce the representation of the plaintiff specifically as a member, and the declaration states with sufficient certainty, that the plaintiff was specifically and individually exhibited.

In regard to the other part of the objection, the degree of certainty required must depend on the subject matter, and where the ridicule consists mainly in ridiculous attitudes, pos tures and movements, the pleader must content himself with using language somewhat general, and insufficient to exhibit the scene as vividly to another as the picture itself. Suppose the ridicule consists in a certain peculiar expression of countenance ; if the artist is ingenious and in any considerable degree successful in his design, his work will be indescribable

But there is another averment, which is, that the plaintiff is therein represented as saying certain words, stating them. It is argued,, that a picture cannot represent one as speaking certain precise words, though he may be exhibited in a speaking attitude. But after some consideration, the Court are of opinion, that this is sufficiently certain after verdict. It is a matter of general notoriety, that a caricature picture or print, may consist of a combination of figures, and written language, attributed to them by labels, apparently issuing from their lips. When therefore it is alleged, that one is represented in a caricature, lithographic picture, as speaking certain language, it seems to be a sufficiently certain averment, that this specific language was attributed to him.

Motion overruled.