Fay v. Harrington
| Decision Date | 01 June 1900 |
| Parties | FAY et al. v. HARRINGTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. H. Bent, for plaintiffs.
J. J. & W. A. Hogan, for defendant.
This is an action for alleged libels, and has been tried twice in the superior court. At the first trial, after a verdict for the defendant, a bill of exceptions was allowed, which is before us. A motion for a new trial also was made, and the verdict was set aside 'as to that part of the plaintiffs' claim which relates to injury from plaintiffs being brought into public hatred and contempt,' and a new trial was ordered upon the condition that the plaintiffs should claim only on that ground. A second trial was had which resulted in a second verdict for the defendant, and at this trial a second bill of exceptions was allowed, which also is here. The peculiar order seems to have been made because of a misunderstanding which had prevented the plaintiffs from presenting their case fully; and without further explanation we shall assume, as both counsel assume that the first exceptions were not waived by what was done after they were allowed.
The plaintiffs are the proprietors of a theater in Lowell, called the 'Opera House,' and the defendant is the owner and publisher of a newspaper called the Lowell Daily Sun. The alleged libels are articles published in that paper. The first exception that we shall consider is to a ruling at the second trial that the articles were not libelous as charging the plaintiffs with discriminating unfairly against the Irish population in their business of giving entertainments to the public. This ruling was right in substance and effect, if not in form. There does not appear to have been any allegation or proof of special damages, so that, even if the articles had made the charge supposed, they would not have been actionable. It cannot be said that such a charge necessarily and in all populations would be hurtful in its effect upon a man's business. It is true that at the first trial, when a similar question was raised, it appeared that 'quite a large proportion' of the readers of the defendant's paper were Irish people, and that the Opera-House audiences were partly Irish. But even these facts are not enough to show that the statements would hurt the plaintiffs.
Moreover it is doubtful, at least, whether the articles make the charge alleged. The first one, entitled 'Contrast at the Theaters,' after saying that there were two excellent Irish plays in Lowell last evening, one at the new Music Hall, the other at the Opera House, and that the Music Hall was crowded, while the Opera House 'was slimly attended,' adds that: The beginning is to the effect that the public has discriminated against the plaintiffs, not the plaintiffs against any part of the public, and the article then suggests as a reason that the plaintiffs charge high prices, and do not cater to the bone and sinew of the town. It is doubtful if the last words properly could be found to refer to the Irish, rather than to the laboring class generally, and it is clear that they do not charge any improper discrimination, or anything more than a perfectly legitimate election as to what class of audience shall be sought.
The other article relied on has a heading declaring that the Sun will not be coerced, and is mainly devoted to an account of the Sun's controversy with the Opera House. In the course of it, it mentions the 'well-known contemptuous expressions' of the plaintiffs 'concerning the very people to whom they looked for patronage on the night when their theater was but partly filled, and the new Music Hall crowded to the doors.' Assuming that the people referred to were the Irish population, so far from charging a discrimination against them this article indicates that the plaintiffs looked to them for patronage. It charges contemptuous expressions in conversation, and such a charge, if believed, might tend to keep the Irish away; but it does not charge unfair discrimination in the management of the theater. So of an alleged statement by one of the plaintiffs that 'the Opera House could get along very well without seeking the patronage of the particular class who read the Sun'; and so of the suggestion that the same plaintiff, etc. The only other statement which we notice--for none is pointed out on behalf of the plaintiffs [176 Mass. 273] --is that the same plaintiffs' ancestors 'were respectable Irish people, who would not countenance discrimination against any class,' etc. This does not allege that the plaintiffs discriminated.
The article, as a whole, appears rather to negative the notion, and to make public private expressions to show that the plaintiffs perhaps would like to discriminate but did not dare.
There next exception which we shall take up is to a refusal to rule at the first trial that, as a demurrer...
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