Dooling v. Budget Pub. Co.

• Citation: 10 N.E. 809,144 Mass. 258
• Parties: DOOLING v. BUDGET PUB. CO.
• Decision Date: 23 March 1887
• Court: United States State Supreme Judicial Court of Massachusetts

144 Mass. 258

10 N.E. 809

DOOLING v. BUDGET PUB. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 23, 1887

COUNSEL

C.B. Southard and Russell Bradford, for plaintiff.

The words complained of are actionable per se, as affecting the plaintiff in his office, profession, or business. 1 Starkie Sland. & L. 117. As to the degree of certainty and precision requisite to make the words actionable: Words in general belonging to this class, relate either to the plaintiff's integrity, his knowledge, skill, or diligence, his credit, or the subject-matter in which he deals. Harman v. Delany, 2 Strange, 898; Jenner v. A'Beckett, L.R. 7 Q.B. 11; Gottbehuet v. Hubachek, 36 Wis. 515; Burnett v. Gould, 27 Hun, 366; Botterill v Whytehead, 41 Law T. (N.S.) 588; Towns.Sland. & L. § 182; Foulger v. v. Newcomb, L.R. 2 Exch. 327; Onslow v. Horne, 2 Wils. 186. "The test in every case by which to decide if the language is actionable per se, is, does it necessarily occasion damage?" Towns.Sland. & L. § 188; Id. (3d Ed.) § 194, and cases cited; Gauvreau v. Superior Pub. Co., 62 Wis. 403, 22 N.W. 726; De Pew v. Robinson, 95 Ind. 109; Purdy v. Rochester Printing Co., 26 Hun, 206. Words may constitute a libel on the plaintiff in his trade or calling, for which he may recover, without proof of malice or special damage, even though the words are more directly an imputation upon something connected with such trade or calling. For example, to charge that a bookseller published an absurd poem. Tabart v. Tipper, 1 Camp. 390; Barrett v. Long, 3 H.L.Cas. 395; Ingram v. Lawson, 6 Bing. (N.C.) 212; Burnett v. Gould, 27 Hun, 366; Jenner v. A'Beckett, 25 Law T. (N.S.) 464; 1 Starkie, Sland. & L. 142.

The words are actionable per se, as tending to bring the plaintiff into ridicule, contempt, or disrepute, or to induce an ill opinion of him. Teacy v. McKenna, 4 Ir.Com.Law, 374; Towns.Sland. & L. § 176; Tuam v. Robeson, 5 Bing. 17; Purdy v. Rochester Printing Co., 26 Hun, 206; Steele v. Southwick, 9 Johns. 214; People v. Croswell, 3 Johns.Cas. 354.

The words complained of, which in the present status of the case must be deemed to be false, are without doubt censorious. They are, in a legal sense, malicious, and they serve to bring the plaintiff into ridicule, and such is their plain intent. Words are not to be construed mitiori censu, but the court will see if there is anything in the language which, by a reasonable intendment, is actionable. Mawe v. Pigott, 4 Ir.Com.Law, 54. It is for the court to define what constitutes a libel. It is for the jury to say whether the particular publication comes within the definition. 2 Greenl.Ev. § 411; Parmiter v. Coupland, 6 Mees. & W. 105; Baylis v. Lawrence, 11 Adol. & E. 920. This rule admits of no modification, unless, upon proper motion or plea, it clearly appears that the words complained of are not actionable. Shattuck v. Allen, 4 Gray, 540. The question of privilege is not to be considered in the case, since it was decided without reference to any such question, as expressly appears in the report.

W.E.L. Dillaway and H.E. Bolles, for defendant.

This ruling was clearly in accordance with law. Gott v. Pulisfer, 122 Mass. 235, 238, and cases cited; Swan v. Tappan, 5 Cush. 104, 108-110; Fitzgerald v. Robinson, 112 Mass. 371. Words in an alleged libel are not actionable per se, unless they charge the plaintiff either (1) with the commission of a crime; (2) with having some loathsome or contagious disease; (3) or unless they contain some defamatory reference to him personally, or in his business, trade, or office, etc.; (4) or hold him up to contempt, ridicule, or disparagement. The alleged libel does not come under either head. What is said relates solely to the quality and satisfactoriness of a public dinner which he provided on a single occasion. "When words are spoken, not of the trader, or manufacturer, but of the quality of the articles he makes or deals in, to render them actionable per se, they must import that the plaintiff is guilty of cheating or malpractice in making or rendering them." Tobias v. Harland, 4 Wend. 537; Swan v. Tappan, 5 Cush. 109. In the alleged libel in the case at bar, Dooling is merely referred to as the person who furnished the dinner. It seems unnecessary to collect authorities to support a point so clearly established.

OPINION

C. ALLEN, J.

The question is whether the language used imports any personal reflection upon the plaintiff in the conduct of his business or whether it is merely in disparagement of the dinner which he provided. Words relating merely to the quality of articles made, produced, furnished, or sold by a person, though false and malicious, are not actionable without special damage. For example, the condemnation of books, paintings, and other works of art, music, architecture, and, generally, of the product of one's labor, skill, or genius, may be unsparing, but it is not actionable without the averment and proof of special damage, unless it goes further, and attacks the individual. Gott v. Pulsifer, 122 Mass. 238; Swan v. Tappan, 5 Cush. 104; Tobias v. Harland, 4 Wend. 537; Western Counties Manure Co. v. Lawes Chem. Manure Co., L.R. 9 Exch. 218; Young v. Macrae, 3 Best & S. 264; Ingram v. Lawson, 6 Bing. (N.C.) 212. Disparagement of...