Donaghue v. Gaffy

• Decision Date: 27 July 1886
• Citation: 54 Conn. 257,7 A. 552
• Court: Connecticut Supreme Court
• Parties: DONAGHUE v. GAFFY.

7 A. 552

54 Conn. 257

DONAGHUE

v. GAFFY.

Supreme Court of Errors of Connecticut.

July 27, 1886.

Action for libel. Nonsuit of plaintiff. Plaintiff appeals.

This action was previously before the court on appeal, and is reported in 2 Atl. Rep. 397. It was then brought by William Donaghue and Edward Donaghue, constituting the firm of Donaghue Bros., as joint plaintiffs, and was remanded for new trial. On the new trial the complaint was amended by omitting the name of Edward, and leaving William Donaghue sole plaintiff. On this trial, defendant moved fora nonsuit, and obtained judgment in his favor. The plaintiff appealed, assigning as error (1) that the court refused to allow the jury to determine whether the publication is or is not libelous; (2) that the court rejected evidence as to injury to plaintiff's reputation and feelings, and erred in holding that the circular was not libelous per se. The case is sufficiently stated in the opinion.

C. I. Perkins and J. G. Callhoun, for appellant.

It is the province of the jury to decide whether this circular is libelous or not. In England the leading case of Baylis v. Lawrence, 11 Adol. & E. 920, established the rule, in civil cases, that the judge is in no way bound to state to the jury his own opinion on this point; that, in fact, it would be wrong for him to lay down as law that the publication complained of was or was not a libel. In the United States this rule is usually followed in criminal cases, but in civil cases there is a marked variance of opinion,—some of the states, like Massachusetts, California, and Maine, adhering to the English rule; while others, as Pennsylvania, Georgia, Wisconsin, and Vermont, hold that the question of libel or no libel is to be decided by the court. Shattuck v. Allen, 4 Gray, 540; State v. Goold, 62 Me. 509; Van Vactor v. Walkup, 46 Cal. 124; Miller v. Butler, 6 Cush. 75; Dickey v. Andros, 32 Vt. 55. Turning to Connecticut cases, the first two in which the point is touched are Mix v. Woodward, 12 Conn. 262, and Haight v. Cornell, 15 Conn. 82; but in these the matter is not fairly reached. In Graves v. Waller, 19 Conn. 90, which is the last decision in this state upon the question, the supreme court held the court below was right in telling the jury that they might consider the whole matter, together in connection with the circumstances proved or admitted, and from the whole say whether the writing in question was libelous according to the definition given. The conclusion is first that, this case being decided only eight years after Baylis v. Lawrence, the English case was the foundation of this opinion, and that Connecticut is to be considered as having adopted the doctrine of the king's bench.

If it is the province of the court to decide whether or not a writing is a libel, is this circular libelous? Libel has been four times defined in our state, in nearly the same language, as "a false and malicious writing published of another, which renders him contemptible or ridiculous in public estimation, or exposes him to public hatred or contempt, or hinders virtuous men from associating with him." Stow v. Converse, 3 Conn. 341; Hillhouse v. Dunning, 6 Conn. 407; State v. Avery, 7 Conn. 268; Lindley v. Horton, 27 Conn. 61. The following are instances in which writings, not charging a crime, infectious disease, or malfeasance in office, are yet held to be libelous, because they contain those imputations which are calculated to vilify a man, and injure his reputation: That the defendant had made the plaintiff "pay a note twice," (Shelton v.Nance, 7 B. Mon. 128;) that the plaintiff "will not sue in a certain county because he is known there," (Cooper v. Greeley, 1 Denio, 347;) an obituary notice of a living person, (McBride v. Ellis, 9 Rich. 313;) saying of a witness, "I believe he knew his statement was not true," [Coombs v. Rose, 8 Blackf. 155;) stating that the plaintiff "was once in difficulties," (Cox v Lee, L. R. 4 Exch. 284;) charging the plaintiff with ingratitude, even though the facts on which the charge is based be stated, and they do not bear it out, (Cox v. Lee, supra; Hoare v. Silverlock, 12 Q. B. 624;) stating of a young nobleman that he drove over a lady and killed her, and yet attended a public ball that very evening, (Churchill v. Hunt, 1 Chit. 480;) writing a letter charging his sister with having unnecessarily made him a party to a chancery suit, and adding, "It is a pleasure to her to put me to all the expense she can," (Fray v. Fray, 17 C. B. [N. S.] 603;) imputing to a Presbyterian "gross intolerance" in not allowing his hearse to be used at the funeral of a Roman Catholic servant, (Teacy v. McKenna, 4 Ir. C. L. 374;) writing of a lady that she has her photograph taken incessantly, and receives a commission on the sale of such photographs, (Odgers, Sland. 23;) circulating a report that the plaintiff had placed his grown daughter on a rail, a la cavalier, (Colby v. Reynolds, 6 Vt. 489.) See, also, Haight v. Cornell, 15 Conn. 74; Clark v. Binney, 2 Pick. 115.

G. G. Sill and H. O'Flaherty, (D. L. Aberdein, of counsel,) for appellee.

The publication is not libelous per se. Bonaghue v. Gaffy, 53 Conn. 43; S. C. 2 Atl. Rep. 397; Folkard's Starkie, Sland. 4. Damages can therefore be recovered only where special and alleged. Odgers, Sland. 291,309,318; Bostwick v. Nickelson, Kirby, 65; Cook v. Cook, 100 Mass. 194; Pollard v. Lyon, 91 U. S. 225. The only damage alleged was to the firm, and the plaintiff could not recover in his own name for this. LeFanu v. Malcomson, 1 H. L. Cas. 637; Solomons v. Medex, 1 Starkie, 191. Proof of the plaintiff's mental suffering is not admissible, even if alleged. Odgers, Sland. 309, 313; Lynch v. Knight, 9 H. L. Cas. 592; Beach v. Ranney, 2 Hill, 312; Terwilliger v. Wands, 17 N. Y. 57; Anon., 60 N. Y. 262.

PARDEE, J. This is a complaint for libel. The issue was closed to the jury, and judgment rendered against the plaintiff as in case of nonsuit. He appeals. Upon the trial the plaintiff introduced evidence tending to prove that the defendant published of him a circular in words as follows:

"To the Liquor Dealers of Hartford and Vicinity: In order that you may be on your guard and protect yourselves against the base treachery of a concern you may be doing business with, I desire to state a few facts in regard to my experience with this firm. The concern I refer to is Donaghue Bros., consisting of William and Edward Donaghue. I have been in the habit of buying nearly all my goods of them for years, but because I quit buying of them they went to the Middletown Savings Bank, of which I rented my place, and offered ten dollars more a month than I was paying, and, after getting their lease of the premises, served a notice on me to immediately vacate. Considering the mean and unfair manner in which this firm have treated me, I have wondered to myself whose turn will come next, should anybody feel like exercising their right to buy of whom they like. I believe it is time to speak out and warn the trade against a firm who, because we buy of somebody else, subject ourselves to the same treatment I have received. The firm of Donaghue Bros, are not worthy of our support, being guilty of foul and unfair dealings, to get square,' as they say, with one who exercises that right that every honest man has who pays his bills, to trade where he likes, and I sincerely believe they deserve that kind of warfare recently inaugurated in a little green isle across the sea, known as 'boycotting,' and request those who believe in the fair thing, as between man and man, to give their support to some other house. For further particulars call on the undersigned.

"J. H. Gaffy."

The plaintiff also offered evidence tending to prove that, at the time of said publication, he was engaged in the wholesale liquor business in Hartford, with his brother Edward, as copartners, under the firm name of Donaghue Bros., and claimed from that evidence that the libel was published as well of and concerning the plaintiff as of and concerning the firm. The plaintiff then offered to prove injury and damage to his reputation and feelings caused by the publication, to which evidence the defendant objected, on the ground that the circular, if a libel, was not a libel against the plaintiff as an individual; and, second, because the complaint contained no allegation of injury to the feelings and reputation of the plaintiff as an individual, nor any allegation as to special damage. The court sustained the objection, and refused to admit the evidence, and the plaintiff excepted. The plaintiff claimed that the circular was libelous per se, and that he might recover in the suit without proof of special damage; but the court held otherwise.

The plaintiff, at his request, was permitted to offer evidence of any damage caused by the circular to the business of the firm, or to his interest as a partner thereof; but, after permission given, lie did not offer any such evidence. The defendant moved for a nonsuit, because no evidence of any damage had been given, and no special damage had been shown. The plaintiff objected thereto, and claimed that he had a right to have the question submitted to the jury, whether, if they found the circular to have been published as alleged, it had a tendency to hold him up to scorn and ridicule, and throw a contempt upon him, which might affect his reputation and comfort. But the court held otherwise, and gave judgment of nonsuit against the plaintiff, on the ground that no damage had been proved. To all of which the plaintiff excepted.

The plaintiff in his brief claims that there are two errors in the rulings of the court: (1) In refusing to allow the jury to determine whether the publication is or is not libelous; (2) in rejecting evidence as to injury to his reputation and feelings, and in holding that the circular is not libelous per se.

As to the first. In civil causes for libel there is a substantial...