Boynton v. Shaw Stocking Co.
| Decision Date | 01 March 1888 |
| Parties | BOYNTON v. SHAW STOCKING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas Curley, for plaintiff.
The plaintiff maintains that, on the evidence submitted, the question of libel or no libel should have been left to the jury, according to the rule laid down in Twombly v Monroe, 136 Mass. 464. See, also, Baylis v Lawrence, 11 Adol. & E. 920; Donaghue v. Gaffy, 54 Conn. 257. That the natural and necessary meaning of the words contained in the defendant's publication are defamatory of the plaintiff, particularly if taken in connection with the plaintiff's advertisement in the "Charles River Laborer," set forth in the report. In the language of the books, "whatever words have a tendency to hurt or are calculated to prejudice a man who seeks a livelihood by any trade or business are actionable." Whittaker v. Bradley, 16 E.C.L 310; Fowles v. Bowen, 30 N.Y. 20; Weiss v Whittemore, 28 Mich. 366. In Harman v. Delany, 2 Strange, 898, the court says the law has always been very tender of the reputation of a tradesman; and therefore the words spoken of them in the way of their trade will bear an action that will not be actionable in case of another person. See, also, Jenner v. A'Beckett, L.R. 7 Q.B. 11. The fair inference from the words used in the Shaw Stocking Company's publication is that the plaintiff was deceiving the public by advertising goods as of first quality which he knew were not so; and the defendant's publication was malicious, because the only evidence in the case is that the goods were of first quality. Any written words are libelous which impute to him (a merchant) fraud or dishonesty, or any mean or dishonorable trickery in the conduct of his business, or which in any other method are prejudicial to him in the way of his employment or trade. Odger, Sland. & Lib. (Bigelow,) 30. To impute that the goods which the defendant sells or manufactures are adulterated, to his knowledge, is a distinct charge against the defendant of fraud and dishonesty in his trade. Odger, Sland. & Lib. (Bigelow,) 31; Jenner v. A'Beckett, L.R. 7 Q.B. 11. This is not a disparagement of the goods only, but indirectly attacks the character of the plaintiff. See Jenner v. A'Beckett and Harman v. Delany, above cited. The plaintiff does not discuss the regularity of the defendant's motion to dismiss, as he understands that this action comes up on the plaintiff's exceptions to the instructions of the judge in the lower court to the jury to find for the defendant.
J.N. Marshall and M.L. Hamblet, for defendant.
The ruling of the court was right. Words in alleged libel are not actionable per se unless they hold the plaintiff up to hatred, contempt, or ridicule, or charge him with the commission of a crime, or with having some loathsome or contagious disease, or unless they contain some defamatory reference to him personally, or in his business, trade, or office, etc. The libel alleged in the case at bar does not come under either head. The caution, at most, only impugned the quality of the hose which the plaintiff had advertised to sell, and, though false and malicious, no action could be maintained without allegation and proof of special damage. Dooling v. Publishing Co., 144 Mass. 258, 10 N.E 809, and cases there cited. The caution does not hold the plaintiff up to hatred, contempt, or ridicule, and it cannot be tortured into disparagement of the plaintiff's character. It was within the limit of fair criticism and dealing. Boynton v. Remington, 3 Allen, 397; Evans v. Harlow, 5 Q.B. 624. A tradesman advertising goods for sale challenges public criticism, and it is not by averring such criticism to be "false, scandalous, malicious, and defamatory" that a party can found a charge of libel upon them. Evans v. Harlow, supra; Paris v. Levy, 9 C.B. (N.S.) 342. The caution is only in relation to one article which the plaintiff, as a dealer in dry goods, had to sell, and cannot be libelous upon him. Tobias v. Harland, 4 Wend. 537. The caution contains no real imputation of fraud or dishonesty on the part of the plaintiff. The caution is not against the plaintiff, or fraud in him. Its evident intent is not to injure him, but simply to arrest public attention, and prevent an opinion of Shaw knit hosiery being formed from the hose advertised for sale by the plaintiff. The statement that the caution was published "concerning the plaintiff" is insufficient. The words do not necessarily or intelligibly apply to him in a defamatory sense. There should have been some allegation showing how the words apply to him, in what sense they were used, and how they are defamatory. McCallum v. Lambie, 145 Mass. 234, 13 N.E. 899, and cases there cited. Words cannot be defamatory unless they directly affect some person, either in his individual capacity, or in his office, profession, or trade. This publication does not touch the plaintiff. Odger, Sland. & Lib. 137; Townsh. Sland. & Lib. § 190. Words which merely might tend to produce injury to the reputation of another are not defamatory, and, even though false, are not actionable, unless, as a matter of fact, some appreciable injury has followed from their use. Odger, Sland. & Lib. 1, 18. It was a question for the court whether the words were defamatory or not. Twombly v. Monroe, 136 Mass. 464. To sustain an action for libel, the plaintiff must either show special damage, or "the nature of the charge must be such that a...
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