Atwill v. Mackintosh

• Decision Date: 31 March 1876
• Citation: 120 Mass. 177
• Parties: James W. Atwill v. Charles G. Mackintosh
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 177

James W. Atwill v. Charles G. Mackintosh

Supreme Court of Massachusetts

March 31, 1876

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Norfolk. Tort for libel. The declaration was as follows: "And the plaintiff says that the defendant falsely and maliciously slandered the plaintiff by writing to one Annette Richards, of West Roxbury, in the county of Norfolk, a letter of which the following is a true copy: West Roxbury, Feb. 14, 1871. My friend Mrs. Richards: When I came to your home on last Christmas morning, bringing as I did your Carrie, sick and helpless as she was, I could not but help feeling thankful that you had her safely once more in your happy home, truly made happy by having your child returned to you, after these few months of unparalleled experience of depravity, so safe. You can never know the terrible ordeal that your sister and I passed through in accomplishing this object; words of mine can never express the day's experience in the city of St. Louis. The night I spent there was not one of sleep; there was a feeling constantly brooding over me that something connected with our errand was wrong; still I tried not to look or to act as I felt, for fear some one might construe my being there into a disposition to criticize; still when I got up in the morning to prepare for the day's work, before hearing a word of censure from any one, I was impressed with the thought that we had a trying day before us, and that we were to bear away a poor heart-broken child far away to her own native home, where she could, if spared to live, be among her own true friends once more; and such a day I hope will never come to us again, for we could not help feeling and saying that if we could only get your child to you again, whether dead or alive, it mattered but little to us -- for in either case we felt sure she would be safe -- we were prepared for the worst.

" It seemed best, for a few days, that as few people should know of this wretched case of depravity and deception as possible, until Carrie should be able to have the terrible news broken to her. As soon as I learned that Carrie had had them told her, or some of them, and of course you knew of it at the same time, I took the first opportunity to call upon you and Carrie, so that we might share in common this terrible affliction that seemed to come upon us all and to your household, in a degree that made me feel very anxious as to the result; but I felt glad when you seemed to feel so thankful that you had your Carrie once more, and to hear you express the determination that she should never leave you again. Since then I have never been able to see you, although I have called at your house quite a number of times. I have kept pretty quiet amid the gust of stories, that have been flying about wherever I go, in relation to this shocking affair, and all sorts of questions are asked me, and as I try to evade, they generally wind up by asking me, are they as bad as they are reported to be? Of course I cannot, after being upon the ground, seeing and hearing what I did, feel like attempting to contradict even the worst one that I have ever heard; so time has worn on until a few days ago, about the time your last sewing society was held, I heard that a near neighbor of mine was advising Carrie's returning to this bad man, (meaning the plaintiff,) as it seems to me, and further it comes out that a near neighbor of yours told this same woman that it was all settled that Carrie was going back.

" Can you imagine my feelings when I heard of this? You may depend that it struck me as strangely as it would had I heard that black could be made white; that a thief, a liar, a drunkard, a libertine, a seducer, a man black with crime, a ravisher of homes, could be pure and virtuous. Yes, my friend, when I think of one poor young woman, carted through the streets of St. Louis, bereft of reason, homeless, houseless, forsaken, ruined, how can I, how can you ever think of the perpetrator of such a deed, (meaning the plaintiff,) without exclaiming "fiend, brute," (meaning the plaintiff.) Can it be that these women are concocting some plan to snatch away again your only daughter, your only child, and thrust her again into the gulf of ruin, that she has now been so safely rescued from? (Meaning that said only daughter, who is the plaintiff's wife, would be ruined if she went back to live with her husband, the plaintiff, and that the plaintiff is a fiend, a brute, a thief, a liar, a drunkard, a libertine, a seducer, a man black with crime, and a ravisher of homes.) It cannot be. It must be, I feel, that you will never allow one of them to bring their influence to bear upon her for such a purpose. Your friend, Charles G. Mackintosh.

" Mrs. R.: I think it will be well not to let Carrie, or Mrs. Rollins, or Aunt Hannah, see or know about this letter, for I have only written it for you, so that when people are trying to induce Carrie to leave you and her true and long tried friends, you will, as her mother, be able to frustrate all their plans. I hope and trust that all things will come and do for you and yours, so that you may be able to feel that this dark cloud may be wholly lifted from you. Chas. G. M.'

"And the plaintiff says that the defendant, in writing the letter above set forth, intended to accuse and did accuse the plaintiff of the crime of larceny, and of being a thief, a liar, a drunkard, a libertine, a seducer, a man black with crime, a ravisher of homes, a fiend and a brute, and also of being a man who would ruin his wife if she should live with him, she then being temporarily away from her husband, the plaintiff, with his full and free consent."

The answer admitted that the defendant wrote and sent the letter, but averred that it was written in good faith, with an honest belief in its truth, and under such circumstances that it was a privileged communication.

Trial in this court, before Ames, J., who reported the case for the consideration of the full court in substance as follows:

No attempt was made to prove express malice, and it was conceded that there was no evidence of express malice, except so far as the same is to be inferred from the letter itself. It appeared that the...