Davis v. Starrett

• Decision Date: 30 June 1903
• Citation: 55 A. 516,97 Me. 568
• Parties: DAVIS v. STARRETT.
• Court: Maine Supreme Court

55 A. 516

97 Me. 568

DAVIS

v. STARRETT.

Supreme Judicial Court of Maine.

June 30, 1903.

(Official.)

Exceptions from Supreme Judicial Court, Knox County.

Action by Orren Davis against Avery Starrett. Verdict for plaintiff. Exceptions and motion for new trial by defendant. Exceptions overruled, and motion granted on conditions.

Action on the case for slander uttered by defendant concerning plaintiff.

The declaration contained two counts—the first in the common form, in which it was alleged that the plaintiff said of the defendant, "Orren Davis is the greatest rumseller in Warren, Maine."

The second count alleged a boycott of plaintiff's store as the result of the slanderous reports concerning him, circulated by the plaintiff, and was as follows:

"Also for that the said plaintiff is a good, true, and honest citizen of this state, and from his birth hath hitherto always behaved and governed himself as such, and during that time hath been held and esteemed and respected to be of good name, character, and reputation as well, among a great number of his fellow citizens, as among all his neighbors and acquaintances, and during all that time has never been guilty of committing any crime such as selling intoxicating liquor, or any such hurtful or disgraceful crime; and whereas the said defendant, well knowing the premises aforesaid, but contriving and maliciously intending to hurt, injure, degrade, and disgrace the plaintiff in his aforesaid good name, reputation, and character, to subject him to the pains and penalties of the laws of the state, provided against those who sell intoxicating liquors, did on the 15th day of September, A. D. 1901, at Warren, in the county of Knox, and on divers other days and times since the said 15th day of September, and on the day of the purchase of this writ, in the presence and hearing of divers good citizens of this state, of and concerning the plaintiff did falsely and maliciously speak and utter in substance the following false, scandalous, and defamatory words of and concerning the plaintiff: 'Orren Davis (meaning the plaintiff) is a rumseller (meaning that the same plaintiff was engaged in the selling of intoxicating liquor in this state contrary to law)'— by speaking and publishing of which said several false, malicious, and scandalous and defamatory words, and of the false and malicious charge, the plaintiff has been greatly injured and prejudiced in his own good name and character and reputation aforesaid, and his business as a trader, by persons boycotting his store on account of the slanderous reports spoken and published by the defendant aforesaid, greatly injured, and he has been rendered liable to be prosecuted for the crime of selling intoxicating liquors in the state contrary to law, and has suffered and undergone great pain and distress and trouble both of body and mind, and likewise greatly Injured and prejudiced.

"To the damage of the said plaintiff (as he says) the sum of three thousand dollars."

Defendant moved for a statement of particulars, and the motion was allowed. The plaintiff complied with the order by filing the following specifications:

"The plaintiff will undertake to prove that the defendant, Avery Starrett, on or about the 16th day of August, 1901, said in substance to C. H. Webster, at Warren, in said county of Knox, 'Orren Davis is a rumseller'; also, the said Avery Starrett at Warren, September 10, 1901, in the presence of divers citizens, among whom was one Newel Eugley, made the following statement: That 'Orren Davis (meaning the plaintiff) is the biggest rumseller in town,' and that he (Starrett) 'could back it up.'

"And the plaintiff expects to prove further, by Dexter B. Hahn, that in September, 1901, Avery Starrett said that 'Orren Davis is a rumseller'; and that at the same time he said to Joseph W. Hahn and Augustus Hahn that 'Orren Davis is a rumseller'; also, that the said Avery Starrett said in the presence of divers other witnesses, whose names are at the present time unknown to the plaintiff, in Warren aforesaid and at the time aforesaid, 'Orren Davis is a rumseller.'"

The plea was the general issue with the following brief statement:

"And for brief statement of special matter of his defense the defendant, not confessing the utterance of any of the alleged slanderous words charged in the plaintiff's declaration, says:

"(1) That he will prove the essential truth of whatever words the plaintiff shall prove that he has spoken of and concerning the plaintiff.

"(2) That if it shall appear that the defendant spoke the alleged slanderous words of and concerning the plaintiff set out in the plaintiff's declaration, it will also appear that such words, if they would otherwise have been slanderous, were spoken under such circumstances as made them a privileged communication, and without malice to the plaintiff, and that therefore they were not slanderous."

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, and SPEAR, JJ.

L M. Staples, for plaintiff.

D. P. Starrett, for defendant.

SAVAGE, J. Action for slander in which the plaintiff recovered a verdict for $1,500. In one count of the writ it is alleged that the plaintiff said of the defendant, "Orren Davis is the greatest rumseller in Warren, Maine," and in another that he said, "Orren Davis is a rumseller." Special damages are averred.

Exceptions.

1. The plaintiff offered the testimony of one Joseph Hahn to prove that the defendant said that the plaintiff was the "worst" or the "greatest" rumseller in Warren. Hahn also testified that the statement was made to himself, and that no one else was present. The defendant claimed and testified that lie did not make this statement to Hahn, but that be did say to one Webster, in the presence of Joseph Hahn, that he considered the defendant the worst rumseller in the town of Warren. The defendant further testified that he made no such statement about the defendant to Hahn at all, or in his presence or hearing, at any other time than the occasion of the conversation with Webster. Hence he claims that the conversation testified to by Hahn must be the same one he admits having had with Webster, but varying in details.

The defendant claims that the communication to Webster was privileged by the occasion and circumstances under which it was uttered. His version is as follows: "In the field we [defendant and Webster] were together at work, and he asked me to bring up a package for him from Mr. Davis previously. I brought it up and gave it to him, and he told me it was an application for membership in the order of Odd Fellows in the village. * * * I asked him if he was going to send in his name or his application by Orren Davis, and he said he was, and I told him I should rather send it in by any other member that I knew of in the order other than by him. He asked me why, and I said, 'Because he doesn't have a good reputation;' and, further, he asked me what I meant by that, and I said that I considered him the worst rumseller in the town of Warren. * * * Joseph Hahn was at work there in the field." Webster testified that Hahn was not over a rod away.

The presiding justice ruled that the communication to Webster was not privileged, and the defendant excepted.

We think, as claimed by the learned counsel for the defendant, that it is made fairly certain, by reference to the plaintiff's specifications and the instructions of the court that neither the conversation with Joseph Halm nor that with Webster, whether they were the same conversation or not, was the slander for which the plaintiff recovered damages, and thereupon it is suggested that the question whether the communication to Webster was privileged or not was immaterial, because not relating to the slander which was the basis of the action.

It does not seem to us that the question whether the communication to Webster was technically privileged or not is material to any issue presented by the case. In slander, as is well settled, while an action may be sustainable upon proof of facts from which malice may be implied, which is called "malice in law," the plaintiff may also show malice in fact—that is, actual malice; a desire and intention to injure. True v. Plumley, 36 Me. 466. And as bearing upon the question of actual malice it is competent for the plaintiff to show that the defendant has repeated the slander charged, or has used the same or similar words, upon other occasions. Smith v. Wyman, 16 Me. 13; True v. Plumley, supra; Conant v. Leslie, 85 Me. 257, 27 Atl. 147. Such other communications, whether claimed to be privileged or not, are admissible, but solely for the purpose of showing actual malice in the slander sued for— to show the state of mind, the purpose and intention, of the slanderer.

Upon examination of the charge of the presiding justice, which is made a part of the bill of exceptions, we find that in this case the jury were told that the slanderous communications, other than the one which was the basis of the action, were not admitted to prove the allegation of slander charged in the writ, but "as bearing upon the question of motive and intent and actual malice on the part of the defendant."...