Merrill v. Post Publishing Co.

197 Mass. 185 | Mass. | 1908

Loring, J.

It is alleged in the first count, which by reference sets forth at length the whole article published in the defendant’s newspaper, that this article was published “ of and concerning the plaintiff, in conjunction with his sister also mentioned in said libellous publication.”

We are of opinion that as matter of law there is nothing in what is there written as to the mystery of the divided house, No. 12 Liberty Street, Salem, which is a libel on the plaintiff. It is not stated that the plaintiff lived at that house during the time in question. It was Sophie and her father and John Barker and his mother who originally lived in the two halves of that house, and the period of ten years’ silence between the two families began about 1894, when John Barker’s mother died. During this time the plaintiff lived “ in South Salem,” and it is stated that after Sophie’s arrest John Barker “always spoke to his cousin, the postmaster, in whose trouble he sympathized.”

If the first count sets forth a libel on the plaintiff, it is in substance because, in a variety of ways, the article in question states “ of and concerning the plaintiff,” that his sister Sophie has been arrested for larceny of letters from the post-office.

The defendant’s argument is that this is a libel on Sophie and not on the plaintiff.

. This is undoubtedly a libel on Sophie, but it does not necessarily follow that it is not a libel on the plaintiff also. See Dow v. Long, 190 Mass. 138.

To write of a man that he is the brother of a sister arrested for larceny might well be thought by a jury “ to impair his . . . standing in the community,” to use the language employed by this court in Bishop v. Journal Newspaper Co. 168 Mass. 327, 331, 332.

In almost every case of libel the reputation of the plaintiff as to character is attacked. The case at bar presents the question whether there are not statements which affect a person’s standing in the community which do not affect his character. And we are of opinion that there are. It was so decided in Shelby v. Sun Printing & Publishing Association, 109 N. Y. 611, affirming “on opinion below ” the decision of the Supreme Court, reported in 38 Hun,474. The libel in that case consisted in stating that the plaintiff and his' sister “are illegitimate children of the adopted father’s intimate friend.” In the court below it was stated that: “ In this case there was no charge against the integrity or morality, or behavior or reputation, of the plaintiff. The statement is that she is illegitimate, a circumstance over which, of course, she could have no control, and for which she was personally in no way whatever responsible. In the estimation of mankind, however, as it is understood, the assertion that a person is illegitimate is a reproach, and one which might, in all probability, frequently subject the person of whom it is said to contumely, to indignity, and, perhaps, to insult. It is unfortunate to be obliged to take this view of human conduct, but we must take the world as we find it, and reason out the problems which are presented to us with reference to human frailties or human prejudices, whatever may be the designation given to a disposition often exhibited to make a person suffer for the deeds of his ancestors.” And in support of that conclusion Starkie on Slander & Libel, (Am. ed. of 1830) 166, and the eases of Cropp v. Tilney, 3 Salk. 226, and Villers v. Monsley, 2 Wils. 403, were there cited. See also in this connection Wythens, J., in Baldwin v. Flower, 3 Mod. 120; Odgers, Libel & Slander, (4th ed.) 16.

The statement that the plaintiff is a bastard is not the only statement which affects his standing in the community. We cannot doubt that it would be a libel to publish of a white man that he is a negro. A negro may be far more noble in character than the white plaintiff; but that is not the question. If a plaintiff is stated in writing to be a negro when he is in fact a white man, his standing in the community is or may be affected.

In our. opinion the same is true of a written statement that the plaintiff’s father and mother and other ancestors were criminals, and in a less degree, as in the case at bar, that a brother or sister is a criminal or has been arrested for crime.

The defendant has cited the case oi Subbaiyar v. Kristmaiyar, Ind. L. R. 1 Madr, 383, as a decision to the contrary. That was a case where a brother brought an action because the defendant had uttered a defamatory statement as to his sister. The defamatory statement in that case was made of the sister and not of the plaintiff, and the plaintiff’s name was not mentioned in connection with the statement in question. All that was decided in that case was that, to be the foundation of an action, the defamatory words complained of must have been spoken of the plaintiff. The decision was plainly right. To write of a woman that she has had an illegitimate daughter (who is not named) is a libel on the woman. But it is not a libel on the woman’s illegitimate daughter, and, although it may hurt the daughter, she cannot sue the 'defendant because he has not published a libel of and concerning her. See in this connection the reasoning of Cranch, C. J., in Johnson v. Brown, 4 Cranch C. C. 285, 237. On the other hand, to write of the daughter that she is an illegitimate child, without naming the mother, is a libel on the daughter, as was held in Shelby v. Sun Printing & Publishing Association, 109 N. Y. 611, but it is not a libel on the mother. And although the mother may suffer she cannot sue, for the reason that the defamatory words were not written of her. The cases of Luckumsey Rowji v. Hurbun Nursey, Ind. L. R. 5 Bomb. 580, and Sorensen v. Balaran, 11 App. Div. (N. Y.) 164, are cases where the defamatory words were spoken of a deceased person, and they are decisions standing on the same footing as Subbaiyar v. Kristmaiyar, ubi supra, namely, that the defamatory words were spoken of the deceased person alone and were not spoken of the plaintiff.

The case , at bar is a case where the defamatory words are alleged to have been published “ of and concerning the plaintiff, in conjunction with his sister also mentioned in said libellous publication.” It remains to consider whether that is legally possible ; whether, for example, a written statement that a woman (naming her) has had an illegitimate daughter (naming her) is or may be a libel on both. We are of opinion that it may be, although the case of Wellman v. Sun Printing & Publishing Association, 66 Hun, 331, seems to be a decision to the contrary.

We are of opinion that we cannot withdraw the case stated in the first count from the jury. To do so we must be able to say that with respect to the plaintiff the publication is not reasonably capable of being understood in a defamatory sense. See Twombly v. Monroe, 136 Mass. 464, 469.

The second count does not purport to incorporate or to refer to Exhibit A annexed to the first count, and must stand on the allegations therein contained alone. Farquhar v. Farquhar, 194 Mass. 400. Massachusetts Ins. Co. v. Green, 185 Mass. 306, 310. This count contains many of the statements found in Exhibit A without the context there set forth. Some of them are unintelligible without the context. With the exception of one innuendo which we shall refer to later on, the others do not state a case unless one is stated in the first count. The allegation that these statements were made “of and concerning the plaintiff in his office of postmaster ” does not add to the allegations of the first •count. In an action for slander words not actionable per se, if spoken in connection with the plaintiff’s profession and business and followed by special damage, are actionable. See for example Morasse v. Brochu, 151 Mass. 567. But the words here complained of were printed, and this is an action for libel, not slander.

Two statements are unintelligible, one because there is no end to the sentence, the other because there is no beginning.

The words “now a recluse,” plainly refer to the sister only.

In this count it is alleged that the newspaper article complained of, after stating that the plaintiff’s sister had been arrested “ for stealing letters,” and that the plaintiff “ or his (meaning the plaintiff’s) wife, to whom the property belonged, sold five houses in South Salem at a sacrifice, for the same reason, it is said, that he (meaning the. plaintiff) desired to turn the East Boston house into cash,” continued: “ ‘As for his ’ (meaning the plaintiff’s) ‘ sister, there is a wide diversity of sentiment regarding her unfortunate situation. Some look upon her as a woman who is mentally upset, and thus did not realize what she was doing. Some do not hesitate to call her a “ martyr,” a woman who placed herself in a compromising position in order that she might help others,’ meaning the plaintiff.” We cannot say that the jury could not find that “ others ” meant the plaintiff, and that this count does not allege by insinuation that the plaintiff’s difficulties were such that his sister stole that she might help him out of them. A defendant is liable for what is insinuated as well as for what is stated explicitly. Twombly v. Monroe, 136 Mass. 464. Haynes v. Clinton Printing Co. 169 Mass. 512. To write of a man that he was in such difficulties that his sister stole to help him out of them might be thought by the jury to be libellous. See in this connection Martin v. Press Publishing Co. 93 App. Div. (N. Y.) 531.

As to the third count, the article complained of did not charge the plaintiff with having an infectious disease.

At the argument the plaintiff waived his appeal from the judgment of the Superior Court in favor of the defendant on the fourth count.

It follows that the entry must be

Judgment for the defendant on the third and fourth counts affirmed; judgment for the defendant on the first and second counts reversed.