Bigelow v. Sprague
| Decision Date | 06 January 1886 |
| Citation | 140 Mass. 425,5 N.E. 144 |
| Parties | BIGELOW v. SPRAGUE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
B.F. Butler, W.B. Gale, and J.A. Titus, for petitioner.
W.S.B Hopkins and F.P. Goulding, for respondent.
1. Sprague had introduced evidence tending to show that Bigelow was concerned, as a principal, in printing and distributing a large number of copies of a libelous pamphlet; and the jury were instructed that all of the distinct publications, if any, or if more than one, which they should find to have been made by Bigelow, were to be treated by them as substantiating the allegation of a publication in the declaration; that all publications they should find to have been made by Bigelow before the writ, were to be treated by them as a publication upon which Sprague could recover. The words "distinct publications" referred to the several deliveries of a copies of the pamphlet. We assume, without deciding, that Bigelow has proved his exception to this ruling, and is entitled to have it considered. The judge also refused to order Sprague to elect which act of publication he would rely on as the cause of action, but to this refusal no exception appears to have been taken.
Bigelow's argument goes on the assumption that the delivery of some one copy of the pamphlet constitutes the cause of action, and that the delivery of others stands like the repetition of an oral slander, which, it is said, is admissible to prove deliberation and malice, but for no other purpose. It is said, too, still on the same assumption, that the result of the ruling of the court below is to leave Bigelow in the clouds, not knowing which publication he is called on to meet, or which has been found against him or what the scope of the judgment is, if Sprague prevails. If we confine ourselves strictly to what is open on the exception taken, the only question is whether the court was right in allowing the jury to give damages for the delivery of different copies of the pamphlet to different persons. For the instruction, in the charge which is excepted to, cannot have affected the conduct of the cause or the arguments, and, whichever was the technically correct view, it did not matter to Bigelow, at that stage, whether the jury were told that, if they found more than one delivery by Bigelow proved, they should regard one as the cause of action, and consider the others as enhancing the damages, or that they might regard all the several deliveries as constituting one publication and one cause of action.
On this question of damages, we are not aware that it has ever been doubted that, when a libel is printed in an edition of many copies for general circulation, the extent of the circulation procured or caused by the publisher may be shown against him as evidence of the injury to the person libeled. Gathercole v. Miall, 15 Mees. & W. 319; Fry v. Bennett, 28 N.Y. 324-330; S.C. 3 Bosw. 200, 234, and 4 Duer, 247-255. This rule disposes of the exception, and shows that the supposed analogy to repetition fails; for, when a repetition, not constituting the cause of action, is admitted, as is commonly said, to prove malice, ( Hastings v. Stetson, 130 Mass. 76,) the jury are instructed not to give damages for it. Bodwell v. Swan, 3 Pick. 376, 378; Pearson v. Lemaitre, 5 Man. & G. 700; Swift v. Dickerman, 31 Conn. 285-290. And if we are to go a step further than is strictly necessary, it seems to follow from the cases first cited, and from Com. v. Blanding, 3 Pick. 304, 311, that the court below was technically correct in ruling that all the several deliveries made by Bigelow were to be treated as substantiating the allegation of a publication. For the effect of Com. v. Blanding seems to be that the distinct publications of copies of a newspaper, which the jury might find to have been made in a certain county, from evidence that the number of the paper was received and circulated there, sustained the allegation of the indictment.
Our conclusion derives some further support from the doctrine that a publication in a newspaper may be unauthorized, when some less widespread publication would be protected, ( Brown v. Croome, 2 Starkie, 297, 299, 301; Laughton v. Bishop of Sodor and Man, L.R. 4 P.C. 495, 504;) for, if each delivery of a copy is to be dealt with only and for all purposes as a separate publication, courts could not distinguish between publication in a newspaper and in a private letter. A closer analogy than that suggested by the counsel for Bigelow would seem to be that of an oral slander addressed to a crowd. But whether the publication of the edition is to be regarded technically as, so to speak, one composite act, we need not consider.
2. Supposing that the exception to the testimony of one Martin as to a speech of one Wardwell at a meeting, can be considered, notwithstanding the failure of the bill of exceptions as tendered to state that Bigelow presided, or that the evidence was...
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