Davis v. New England Ry. Pub. Co.

• Decision Date: 27 October 1909
• Citation: 203 Mass. 470,89 N.E. 565
• Parties: DAVIS v. NEW ENGLAND BY. PUB. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 470

89 N.E. 565

DAVIS v. NEW ENGLAND BY. PUB. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 27, 1909

COUNSEL

Warren, Hoague, James & Bigelow, for plaintiff.

Edwd. F. McClellen and A. T. Wright, for defendants.

OPINION

KNOWLTON C.J.

The plaintiff is the proprietor of the Northern Express Company which carries merchandise between Boston and many cities and towns in Massachusetts, Maine and New Hampshire. He also sublets portions of his office to the proprietors of other express companies doing business in or near Boston. The defendant corporation is the publisher of the 'A. B. C Pathfinder and Dial Express List.' The bill contains the following averments: 'The publication is the only one of its kind issued or in circulation in Boston. The publication is in a form intended and calculated to create in the minds of the public the belief that it contains the names of all the reputable local expresses doing business in Boston and vicinity. It has created and does create such belief in the minds of the public. This belief is the main, if not the sole, reason inducing purchases of the publication by the public. This belief has enabled the corporation to obtain a large circulation among the business houses and general public in Boston and vicinity. The above publication is usually and frequently consulted by persons having occasion to employ a local express. It has come to be accepted by the general public as the recognized directory of local express companies.' There are other averments showing some of the particulars of the contents of the publication, which tend to support the above general averments, and particularly the averment that it is intended and calculated to create in the minds of the public the belief that it contains the names of all the reputable local expresses doing business in Boston and vicinity. A copy of the publication is made a part of the bill, and it tends to confirm and strengthen this averment. It is averred that 'the plaintiff and each of his subtenants is conducting his express business in a lawful and proper manner, and to the convenience and satisfaction of his patrons'--in substance, that these express companies are reputable--and that 'no good reason exists why the defendant corporation should discriminate against them or any of them, or should exclude reference to them or any of them from its publication.' It is averred that the defendant corporation has omitted any reference in its publication to the business of the plaintiff or of his subtenants, and that it is about to bring out another issue of the same general publication, and has been requested to include the plaintiff's office in the list of express offices, and to make reference to the express business of the plaintiff and his subtenants, and has refused and still refuses so to do. The plaintiff also alleges that the defendant corporation refuses to assign any reason for its objectionable conduct.

It is alleged that the other two defendants, control a majority of the general local express companies whose names appear in the publication, that they have an acquired and dominating influence in this business in Boston, and are seeking to obtain an absolute monopoly of this kind of business, to the exclusion of the plaintiff. He avers that they have conspired together to prevent the publication by the defendant corporation of any reference to the business of the plaintiff and his subtenants, and by threats and false statements have induced the defendant corporation to leave the plaintiff and his business without mention in the publication.

The case comes before us on a demurrer, which, for the purposes of the hearing, admits the truth of all the averments of the bill.

The ground on which the plaintiff seeks relief is not that he has a right to compel the defendants or either of them to do anything for his benefit, but that he has a right to have them refrain from intentionally doing anything, without legal justification, to his injury. The defendant corporation professes to give the public a full list of all the reputable express companies doing business in Boston. While it does not say in express words that the list is complete, that is the meaning which the publication is intended to convey and does convey. Its list is false and misleading, to the...