Dow v. Long
| Decision Date | 04 January 1906 |
| Citation | 190 Mass. 138,76 N.E. 667 |
| Parties | DOW v. LONG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Nathan D. Pratt and John J. Devine, for appellant.
John J Pickman and John J. Harvey, for appellee.
The defendant argues that the first count of the plaintiff's declaration fails to state any cause of action, because the alleged defamatory matter is not libelous, and because it is not averred that the alleged libels were published 'concerning the plaintiff.'
The first count is somewhat inartificially drawn; but in our opinion it sufficiently appears that the first articles averred therein to have been published are set out merely by way of inducement, and that the libel relied upon is contained in the short article appearing at the end of this count. With reference to the last cause of demurrer relied upon, the declaration expressly avers that this alleged libel is published 'of and concerning the plaintiff' and his conduct in his office; and this is a sufficient averment that the publication was made of and concerning the plaintiff. Young v. Cook, 144 Mass 38, 10 N.E. 719; Hurley v. Fall River Daily Herald Publishing Co., 138 Mass. 334; Chenery v Goodrich, 98 Mass. 224. 'When the words are alleged to be spoken of the plaintiff, no innuendoes are necessary to apply them.' Devens, J., in Young v. Cook, ubi supra.
A more important question is whether the alleged publication is libelous when taken in connection with the previous averments of this count. These averments are in substance that the plaintiff was a member and chairman of the board of police of the city of Lowell; that one Robert E. Crowley was a condidate for the office of superintendent of streets of said city; that said superintendent was chosen by the concurrent vote of the board of aldermen and common council; that said Crowley had been elected to said office on the part of the board of aldermen, and the question of his election was pending in the common council; that the defendant then published the article stated in the count and headed, 'Send Crowley to City Farm,' and the shorter articles which immediately follow it. The count then avers that the defendant published the alleged libel 'of and concerning the plaintiff and of and concerning his aforesaid office and of and concerning his conduct in his said office and with reference to the candidacy and election of said Robert E. Crowley to said office of superintendent of streets and with reference to the articles aforesaid.' The defendant does not argue that this alleged libel, construed in connection with the other publications averred, would not tend to subject the plaintiff to public ridicule and contempt and to injure seriously his reputation both as an individual and in his official capacity; and, unless the averments of the declaration show a sufficient occasion and justification for what the defendant is alleged to have done, this is enough to constitute a cause of action. Lovejoy v. Whitcomb, 174 Mass. 586, 55 N.E. 322; Haynes v. Clinton Printing Co., 169 Mass. 512, 48 N.E. 275; Call v. Hayes, 136 Mass. 586, 48 N.E. 777; Twombly v. Monroe, 136 Mass. 464. The defendant does not dispute this general principle, but he rests his defense upon the ground that the declaration shows that the election of a superintendent of streets was pending in the city council of Lowell; that Robert E. Crowley was a candidate for this office; that the alleged libels were statements made in his newspaper with reference to said election, the fitness of said Crowley for said office, and the action of the plaintiff in seeking to bring about Crowley's election; and he claims that the matters discussed by him were of public interest and general concern in Lowell, and so were protected and cannot be made the ground of action. And it is true that comments fairly made with reference to the action and attitude concerning public matters of a person seeking or holding public office are not to be treated as libelous. Smith v. Higgins, 16 Gray, 251; Bodwell v. Osgood, 3 Pick. 379, 15 Am. Dec. 228; Wason v. Walter, L. R. 4 Q. B. 93, 94. And doubtless a more difficult question would be raised if this action had been brought by Crowley for the statements made concerning him in these alleged publications, although it is to be observed that even in such a case, as is pointed out by Holmes, J., in Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242, 28 N.E. 1, 4, 13 L. R....
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