200 Mass. 166 | Mass. | 1908
This is an action of libel for causing the printing in certain newspapers of an article alleged to have been false, malicious and defamatory, to have been published concerning the plaintiff and likely to injure him in his business, and to have caused him loss of patronage. The defense is that the statements were true and made without malice, and that the article consisted of fair comment on a matter of. public interest.
The plaintiff is a baker. The defendant is an instructor in science in the State Normal School and a member of the board of health of Westfield. Certain samples of vanilla flavoring were
The presiding judge ruled that the subject was one of public interest, and that the defendant had a legal right to publish fair and reasonable comment thereon without liability. The case comes before us on exceptions by the defendant to the refusal to give certain instructions and as to the admission of certain evidence.
1. A verdict could not have been directed for the defendant. A reasonable inference from the published article was that the writer asserted that the plaintiff paid $2.75 per gallon for the vanilla found on his premises, which contained the wood alcohol, a dangerously poisonous substance. There was no' evidence whatever that the vanilla found on the plaintiff’s premises cost him only $2.75 per gallon. The defendant, from his knowledge as to the cost of the several ingredients found to compose this fluid, estimated that it could be bought for that price, but made the assertion without any knowledge or information as to what the plaintiff in fact paid for it. Thet evidence of the plaintiff, which was uncontradicted, was that he paid $4 per gallon for it. Upon this statement as to price paid by the plaintiff, which the
2. It is argued that there was no evidence that the article was published concerning the plaintiff. The plaintiff’s name is not mentioned in it. The subject of the article is named only as “ one of our local bakeries,” in which “ wood alcohol in the so called vanilla ” had been found, and “ a dealer as in the present case.” It may be conceded, as urged by the defendant,
It may have been found to be the reasonable inference from this testimony that a reference to the local baker, in whose shop vanilla containing wood alcohol had been found, would point inevitably to the plaintiff. Whether the article was published concerning the plaintiff is generally a question of fact. There is nothing exceptional in the present case to take it out of the gen
The defendant has argued that the publication of advertisements by the plaintiff may have spread this knowledge. But the charge of the presiding judge is not given, and it must be assumed that ample instructions, covering this phase of the case, were given. Moreover, it is plain that the members of the board of health and its agent knew who was meant by “local dealer ” as used in the article. Although they had joined in the expression of view that an article should be published, there is nothing to show that they intended to authorize the publication of a libel. The article was not shown to them in advance of being printed, nor its precise tenor communicated to them. It cannot be assumed that they intended anything more than that a fair comment upon the matter should be published.
3. The defendant requested a ruling in substance that there was no evidence of personal ill-will toward the plaintiff on the part of the defendant. This may have been refused properly on the ground that there was no sufficient evidence of the truth of the basic facts alleged respecting the plaintiff in the article. No testimony was introduced that the plaintiff paid $2.75 per
4. The defendant asked for an instruction that “the statement in the alleged article, ‘ the recent finding of wood alcohol in the so-called vanilla used in one of our local bakeries,’. .. refers
5. One Raineault, an employee of the plaintiff, was permitted, against the exception of the defendant, to testify as to the reasons given by customers for declining to use the plaintiff’s goods. These were declarations accompanying the act of refusal to trade with the plaintiff and explaining its nature. They were competent within the rule laid down in Elmer v. Fessenden, 151 Mass. 359, 361, Weston v. Barnicoat, 175 Mass. 454, and Peirson v. Boston Elevated Railway, 191 Mass. 223. The act, namely the refusal to buy goods, was an equivocal one; it might arise because no bakers’ goods were needed at the time, or because a rival had secured the trade, or because of fear that the plaintiff’s goods were poisonous, or from other considerations. A contemporaneous declaration giving the reason for the act was, therefore, competent as disclosing its real character. It was not necessary for the plaintiff to show, as a part of his case, the names of the customers. This was a proper subject for cross-examination, and it does not appear that the defendant was deprived of his rights in this respect. One claim of the plaintiff respecting damages was a loss of patronage. It was competent for the driver of his baker’s wagon to state that after the publication of the articles the trade fell off, and that his customers, when refusing to trade, gave the publication of the article in question as the reason. ”
Exceptions overruled.
During the course of the trial the plaintiff had testified that, after samples of what the plaintiff was using for vanilla were taken by the agent of the board of health and before the publication of the article in question, he “had some trouble” with the board of health, but was not allowed on cross-examination to state what the trouble was. The next day the presiding judge addressed the jury as follows: “ Gentlemen, in consequence of the ruling which I made yesterday with regard to the admission of evidence as to the causes of trouble between the board of health and Mr. Hubbard, and of my subsequent change of view with regard to the law, we have arranged that I shall state this: That at the time or just shortly before the time of taking of the vanilla in Mr. Hubbard’s bakery, there had been complaints made against him by the board of health with regard to the conduct of things in and about his bakery. One of those complaints had been dismissed by the court to which it was brought, before the publication of this article; the other was still pending, and was not disposed of till some time after the publication—quite a period after the publication, when it was also disposed of in Mr. Hubbard’s favor; but the matter was being discussed in the public press at the time these articles appeared. There will be no evidence offered on those matters, but that will cover the substance of-it, and those facts I have just stated you are at liberty to use in connection with any discussion of the case.”