Gordon v. Journal Pub. Co.

• Decision Date: 16 May 1908
• Citation: 81 Vt. 237,69 A. 742
• Parties: GORDON v. JOURNAL PUB. CO.
• Court: Vermont Supreme Court

69 A. 742

81 Vt. 237

GORDON

v. JOURNAL PUB. CO.

Supreme Court of Vermont. Washington.

May 16, 1908.

Exceptions from Washington County Court; E. L. Waterman, Judge.

Action for libel by Robert T. Gordon, by his next friend, against the Journal Publishing Company. Judgment for defendant on demurrer, and plaintiff excepts. Affirmed and remanded.

T. R. Gordon and Geo. W. Wing, for plaintiff. Harvey, Harvey & Harvey, for defendant.

TYLER, J. Case for an alleged libel. The defendant demurs to the declaration, and assigns several special causes of demurrer. For a full understanding of the question raised, it will be useful to recite in full the publication complained of as set out in the declaration before considering the construction given to the different paragraphs by the plaintiff's innuendoes.

The first publication, alleged to have been made on or about July 11, 1907, is as follows:

"Warrants Issued for Two Boys.

"Authorities known who assaulted the Greene boy and arrests will be made to-day. Greene is still confined to bed. Cases may come up to-night. Joseph Greene, the small boy who was nearly killed by two boys of about his age on Tuesday afternoon, is still confined to the bed, and is in a serious condition as the result of the injuries alleged to have been inflicted by two other boys. Warrants were issued this morning for the arrest of the two boys implicated in the affair. The story told by young Greene, who is about 12 years of age, is that he went to the creamery after milk, and that the two boys set after him with a horsewhip. They drove him to the top of a shed, and one of them pushed him off the top so that he fell some 12 feet onto a pile of scrap iron, bottles, and other rubbish. Apparently the only thing that saved his life in the fall was the fact that his trousers caught on a nail and broke the force of the blow on the material at the foot of the building. It was found this morning that Greene was lashed about the legs and body with the whip and severely scratched and bruised in the fall from the top of the shed. He will be unable to go into court and testify for some time.

"The warrants for the two boys were not served until late this afternoon because of the fact that City Judge Harvey was in Grauiteville on legal matters, and was unable to hold court. It is possible that the case will be brought up this evening."

On July 12th the defendant published the following:

"Greene's Case Is Serious.

"Boys involved in assault have not been arrested and charge against them may be a grave one. The case of Joseph Greene, who was brutally whipped and finally pushed off the roof of a shed in the rear of Wheelock's real estate agency by hoodlums, so that he sustained unknown and serious injuries, is so serious that he is still unable to appear in court. In fact, the boy's present situation is such that probably a much more serious case will be made against the two boys involved in the affair than was at first contemplated.

"Young Greene has been spitting blood to-day, and those in charge of him are considerably alarmed by the symptoms of internal injury that this would indicate. Until his case takes a turn for the worse or better, no action will be taken against the boys who are known to have committed the outrage, as they are in charge of responsible parties, and will be produced at the proper time.

"Whatever the motive of the two young rascals who are responsible for the Greene boy's condition, the case is gradually becoming more and more serious, and it may at any time take a turn when immediate arrest may become necessary. Meanwhile everything is being done for the sufferer, and he will appear in court and testify against his assailants as soon as the physicians concerned in the case consider him able to do so."

And the following on July 18th:

"Joseph Greene, the small boy, who was nearly killed by two other boys a few days ago, is gaining slowly from his injuries, and it is expected that he will be able to go into court and testify against his assailants as soon as Grand Juror Heaton returns from a visit to Brandon."

1. The defendant contends that the declaration contains only one count, and that that is bad for duplicity, in that it joins and declares upon three different libelous articles published on different days and concerning different subjects. It is not necessary to decide whether or not the three publications might have been included in one count, as they all relate to the same occurrence; but it is clear that, as the libelous charge consists of different publications in different numbers of the newspaper, it was competent to set out each publication in a separate count. Hughes v. Rees, 4 M. & TV. 204, is full authority for this holding. Each count, however, was demurrable as will appear.

2. It is laid down in the text-books that the allegation of the time of committing injuries ex delicto is seldom material (1 Chit. Pl. 384); that the precise day on which a material fact alleged in the pleadings took place is in most cases immaterial, except when the date of a record, or other writing, or some other fact, the time of which must be proved by a writ ten document, is alleged. But these statements are not intended to relax the rule given in all works...