Twombly v. Monroe, 136 Mass. 464

136 Mass. 464 | Mass. | 1884

Field, J.

The plaintiff was tenant at will of the defendant. That tenancy was determined by the execution and delivery of the written lease to Peters, if it was executed and delivered. Peters, after the delivery of the written lease to him and notice thereof to the plaintiff, could, by himself or his agents, take possession and eject the plaintiff, using such force as was reasonably necessary. Curtis v. Galvin, 1 Allen, 215.

If he committed a breach of the peace, the Commonwealth only could prosecute him therefor. If he used unnecessary force, he was liable to the plaintiff, in an action by her. Low v. Elwell, 121 Mass. 309. But the execution of the lease by the defendant, the delivery of it to Peters, and the authority of the defendant to do what he did as agent for Peters in obtaining possession, were facts which the defendant must prove to justify his acts. Blake v. Damon, 103 Mass. 199, 210. The exceptions state, “There was no other evidence as to the execution and delivery of said lease or paper, or of the authority of the defendant to act for Peters,” than the testimony of the defendant. This testimony the jury may have disbelieved. The plaintiff was entitled to go to the jury upon this evidence, and to persuade them, if she could, that it was not true. It was not for the plaintiff to prove that the lease was not delivered. The defendant must satisfy the jury that it was delivered, or fail in his justification. The ruling of the presiding justice upon this part of the case was erroneous.

The fourth count is for a libel. The presiding justice ruled, as matter of law, that the publication was not libellous or actionable. This count contains no statement of extrinsic facts, and no colloquium, except that the publication was concerning the plaintiff, to show that the words published were used or capable of being understood in any other than their ordinary sense; and the question is, whether the words published, in their ordinary import, have any tendency to bring the plaintiff into public hatred, contempt, or ridicule. Pub. Sts. c. 167, § 94, Forms of declarations in slander and libel. Commonwealth v. Child, 13 Pick. 198. Carter v. Andrews, 16 Pick. 1. Chenery v. Goodrich, 98 Mass. 224. York v. Johnson, 116 Mass. 482.

If the words published are fairly capable of two meanings, one harmless and the other defamatory, it is a question for the jury in what sense readers may have understood them. See Simmons v. Mitchell, 6 App. Cas. 156. If the declaration is demurred to, the court must determine whether it sets out a good cause of action. Goodrich v. Davis, 11 Met. 473. Chenery v. Goodrich, ubi supra. Homer v. Engelhardt, 117 Mass. 539. In Shattuck v. Allen, 4 Gray, 540, “ after the cause was opened to the jury, it being objected that the publication was not libellous, and the court inclining to that opinion, it was withdrawn from the jury, and submitted to the whole court.” The court said, that the point whether the question of libel or no libel should have been sent to the jury was not made at the trial, or reserved in the report, and, after commenting upon the law and practice in this respect, entered judgment for the defendant.

For the law in criminal prosecutions for a libel, see Commonwealth v. Anthes, 5 Gray, 185, 212 & seq., and the cases cited in the dissenting opinion of Mr. Justice Thomas.

In England, by the St. of 32 Geo. III. c. 60 (1792), it was provided that, on the trial of an indictment or information for a libel, the jury may give a general verdict, and shall not be required or directed by the court to find the defendant guilty merely on proof of publication, and “of the sense ascribed to the same in such indictment or information; ” that the presiding judge may give directions to the jury as in other criminal cases, and the jury may in their discretion find a special verdict; and the defendant, if found guilty, may move in arrest of judgment. This act, as is well known, was designed to protect defendants in criminal prosecutions for a libel from the power of the judges; but it has undoubtedly had some effect upon the proceedings in civil actions. In civil proceedings for a libel in England, it is said that “it is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance.” Kelly, C. B., in Cox v. Lee, L. R. 4 Ex. 284, 288. Channell, B., in the same case, seems to have been of opinion that in every civil case, at the trial, the question of libel or no libel must be submitted to the jury; but this is not the English law. The existing law of England is not stated with entire accuracy by Kelly, C. B., as is shown by Mulligan v. Cole, L. R. 10 Q. B. 549; Hart v. Wall, 2 C. P. D. 146 ; Hunt v. Goodlake, 43 L. J. (N. S.) C. P. 54; and Capital & Counties Bank v. Henty, 5 C. P. D. 514; S. C. 7 App. Gas. 741.

We are satisfied with the rule, that, at the trial of civil actions for a libel, it is only when the court can say that the publication is not reasonably capable of any defamatory meaning, and cannot reasonably be understood in any defamatory sense, that the court can rule, as matter of law, that the publication is not libellous, and withdraw the case from the jury, or order a verdict for the defendant.

We cannot say that the publication in the case at bar does not impute to the plaintiff an intention to keep possession without paying rent; and that the words, “ She is not a stranger here, — she never made friends. Can find out all about her by taking a little trouble,” — do not convey an implication or insinuation that the plaintiff is considered unfit for friendly intercourse by her neighbors, and do not thus tend to expose her to obloquy; if so, the publication may be libellous. We think the presiding justice erred in ruling, as matter of law, that the publication was not libellous, and in not submitting the question to the jury.

Exceptions sustained.