Bearce v. Bass

Decision Date29 February 1896
Citation34 A. 411,88 Me. 521
PartiesBEARCE et al. v. BASS et al.
CourtMaine Supreme Court

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action by Samuel R. Bearce and another against Joseph P. Bass and another for libel. There was a verdict for plaintiffs, and defendants except, and move for a new trial. Motion sustained.

A. R. Savage and H. W. Oakes, for plaintiffs.

F. H. Appleton, H. R. Chaplin, and Seth M. Carter, for defendants.

FOSTER, J. This is an action of libel brought by the plaintiffs for the recovery of damages for defamation of themselves in their business, as contractors, against the defendants, as proprietors of the Bangor Daily Commercial, by means of an article published in that paper on March 28, 1894.

A verdict of $1,508.03 was found for the plaintiffs, and the case comes before this court upon motion and exceptions by the defendants.

The publication of the alleged libel was during the progress of a municipal campaign in Bangor, in which the election of F. O. Beal for mayor was then pending. The plaintiffs had contracted to build the Bangor City HalL a public building, designed to be used and occupied by the government of the city for public purposes, estimated to cost $100,000, but ultimately costing considerable more than that amount. The mason work had been suspended during the cold weather, and, at the time of the publication of the alleged libel, the building, although in the process of construction, was in an incomplete and unfinished condition. The character of the construction of such a building was a matter of public importance, and of interest to the inhabitants and taxpayers of Bangor, and was therefore a matter of legitimate public discussion by the defendants, as well as all others who had, in common with the rest of the community, a public and a private pecuniary interest in this important public work.

While the construction of this building was in progress, and while an election for mayor was pending, who was to be ex officio chairman of the building committee, an article was published by the defendants in their paper, and that portion of it claimed to be libelous is as follows:

"The mason work is of the poorest quality, and it should not be accepted by the city. Too much sand has been used in the mortar, and to such an extent that it does not prevent the alkali, which is the life of the mortar, from running out as can be seen by the white appearance of the building. Very many of the bricks are loose, the mortar being too lifeless to hold them together, and the contractors should be obliged to take down and replace the imperfect sections of the walls.

"The doings of the old Tweed ring in New York were no worse than much that has been done in connection with our city building."

The defendants contend that these words are not actionable, and constitute no libel upon the plaintiffs in the way of their trade, business, or occupation as contractors, as alleged; and, moreover, that the last allegation does not refer to them; and that the article, as a whole, is only fair and reasonable comment and criticism upon a public work, made to the public by interested citizens and taxpayers.

Two things are necessary for the maintenance of this defense: First that the comment or criticism upon the plaintiffs' work should be fair and reasonable; second, that it should be without malice towards them individually or in their business as contractors.

The question is therefore whether the language used imports any personal reflection or attack upon the character of these plaintiffs, either as individuals or in their business as contractors, or whether it is merely a disparagement of the work done by them.

Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously. Thus, it has been held that books, prints, pictures, and statuary publicly exhibited, and the architecture of public buildings, are all the legitimate subjects of newspaper criticism; and such criticism, fairly and honestly made, is not libelous, however strong the terms of censure may be, without the averment and proof of special damage, unless it goes further and attacks the individual. Dooling v. Publishing Co., 144 Mass. 258, 10 N. E. 809; Gott v. Pulsifer, 122 Mass. 235; Tobias v. Harland, 4 Wend. 537; Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Exch. 218; Merivale v. Carson, 20 Q. B. Div. 275.

In Crane v. Waters, 10 Fed. 619, it was held that the safety of a bridge on the line of a railroad was matter in which the public were concerned; and that a newspaper might discuss the construction of the bridge, even though the effect of such discussion and criticism was, to some extent, a reflection upon the character of the builder.

So, too, upon the same principle, it has been held to be within the proper limits of criticism to publish of a newspaper that it is the most vulgar, ignorant and scurrilous journal ever published in Great Britain; for this affected the character of the newspaper only, and not, except remotely, the character or reputation of the person publishing it Herlot v. Stuart, 1 Esp. 437.

The cases are numerous where this principle has been applied, and the doctrine upon which they are founded is one of universal application, that the public convenience is to be preferred to private interests, and that every man has a right to discuss freely, so long as he does it honestly and without malice, any subject in which the public are generally interested, and to state his own views for the consideration of all or any of those who have a common interest in the subject. Henwood v. Harrison, L. R. 7 C. P. 606, 621, 622.

Applying this rule to the case at bar, we think the language complained of is but a fair and reasonable criticism upon the work which entered into the construction of this public building. The mason work is criticised as being of the poorest quality, which ought not to be accepted by the city. The mortar is criticised as containing too much sand. Criticism is also made that very many of the bricks are loose, the mortar being too lifeless to hold them together, and that the imperfect sections of the wall should be taken down by the contractors. No attack is made upon the character of these plaintiffs, either as individuals or in their business as contractors. The criticism is not of them, but of the work done by them.

But the plaintiffs contend that these assertions charge the plaintiffs with not doing the work according to contract and that, therefore, the words become defamatory of the plaintiffs in their business. If this be true, then it must follow, as a legal conclusion, that no criticism, however fair and reasonable, could ever be made upon the work which entered into the construction of any public building, built under contract. To say that an individual or the public press should be dumb upon a matter which is of public interest, on the ground that any criticism would impute a breach of contract,...

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  • Kutcher v. Post Printing Co.
    • United States
    • Wyoming Supreme Court
    • April 12, 1915
    ...91 Minn. 71, 97 N.W. 460; Diener v. Star-Chronicle Pub. Co. (Mo.), 135 S.W. 6; Coleman v. McLennan, 78 Kan. 711, 98 P. 281; Bearce v. Bass, 88 Me. 521, 34 A. 411; Briggs v. Garrett, 111 Pa. 404, 2 A. 513.) A different rule of criticism applies in the case of a public officer from one where ......
  • Lauder v. Jones
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    • North Dakota Supreme Court
    • February 24, 1904
    ... ... 267, 100 N.W. 705. When it is made upon ... an occasion which the law deems privileged, legal malice is ... not thus inferred. Bearce v. Bass, 88 Me. 521, 34 A ... 411, 51 Am. St. Rep. 446. On the contrary, the law presumes ... that it is made in good faith and without malice, ... ...
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    ...& Company, 222 Mo. 603; Coleman v. MacLennan, 78 Kas. 711; Gandia v. Pettingill, 222 U.S. 457; Cowan v. Fairbrother, 118 N.C. 418; Bearce v. Bass, 88 Me. 521; Schull Hopkins, 26 S.D. 21. (e) The record fails to establish that the comment contained in the publication was inspired by malice, ......
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    • Missouri Supreme Court
    • February 9, 1911
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