Hanson v. Globe Newspaper Co.
| Decision Date | 21 June 1893 |
| Citation | 159 Mass. 293,34 N.E. 462 |
| Parties | HANSON v. GLOBE NEWSPAPER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Moulton Loring & Loring, for plaintiff.
Grant M. Palmer, for defendant.
The defendant published in its newspaper an article describing the conduct of a prisoner brought before the municipal court of Boston, and the proceedings of the court in the case designating him as "H.P. Hanson, a real-estate and insurance broker of South Boston." He was in fact a real-estate and insurance broker of South Boston, and the article was substantially true, except that he should have been called A.P. H. Hanson, instead of H.P. Hanson. The plaintiff, H.P. Hanson, is also a real-estate and insurance broker in South Boston, and in writing the article the reporter used his name by mistake. The justice of the superior court, before whom the case was tried without a jury, "found as a fact that the alleged libel declared on by the plaintiff was not published by the defendant of and concerning the plaintiff;" and the only question in the case is whether this finding was erroneous, as a matter of law.
In a suit for libel or slander it is always necessary for the plaintiff to allege and prove that the words were spoken or written of and concerning the plaintiff. In Baldwin v Hildreth, 14 Gray, 221, the declaration was adjudged bad on demurrer because this allegation was wanting. The rule is reaffirmed, and authorities are cited, in McCallum v. Lambie, 145 Mass. 234, 13 N.E. 899. The form of declaration prescribed by the practice act, in slander, uses the phrase, "words spoken of the plaintiff," and in libel, "false and malicious libel concerning the plaintiff." Pub.St. c. 167, § 94. It has often been held that it is a question of fact for the jury whether the words were or were not spoken or written "of and concerning the plaintiff." Van Vechten v. Hopkins, 5 Johns. 211, 221; Gibson v. Williams, 4 Wend. 320; Smart v. Blanchard, 42 N.H. 137; De Armond v. Armstrong, 37 Ind. 35; Goodrich v. Davis, 11 Metc. (Mass.) 473, 480, 481, 484; Miller v. Butler, 6 Cush. 71. The defendant's meaning in regard both to the person to whom the words should be applied, and the imputations against him, is always to be ascertained. In Smart v. Blanchard, ubi supra, it is said that "the meaning in this respect [as to the person to whom the libel applies] is undoubtedly a question of fact for the jury." It is also said that when the meaning is ambiguous it is incumbent on the plaintiff "to show that the defendant intended to apply his remarks to the plaintiff." In De Fanu v. Malcomson, 1 H.L.Cas. 637, which was an action for libel, brought by copartners, the lord chancellor assumes that the plaintiffs must prove "that the party writing the libel did intend to allude to them." In Pub.St. c. 167, § 94, the rule is laid down, as applicable "in actions for written and printed as well as oral slander," that if the meaning is not clear there must be innuendoes to make the words intelligible, "in the same sense in which they were spoken." Chenery v. Goodrich, 98 Mass. 224, 229, assumes that it must appear that the plaintiff was referred to in the publication; and Young v. Cook, 144 Mass. 38, 10 N.E. 719, is of similar import. Odgers on Libel and Slander (at page 127) discusses the topic "Certainty as to the Person Defamed." In Com. v. Kneeland, 20 Pick. 206, 216, Chief Justice Shaw says that in actions of libel and slander it is the general rule that "the language shall be construed in the sense in which the writer or speaker intended it." In Smith v. Ashley, 11 Metc. (Mass.) 367, the necessity of proving the defendant's actual intention in regard to the person referred to was affirmed much more strongly than there is any occasion to affirm it, and perhaps more strongly than we should be prepared to affirm it, in the present case. It was held that the publisher of a newspaper, containing an article which he believed to be a fictitious narrative or mere fancy sketch, was not liable to the plaintiff, although the article was libelous, and was intended by the writer to be applied to the plaintiff. The court said that in such a case the writer alone was responsible. In every action of this kind the fundamental question is, what is the meaning of the author of the alleged libel or slander, conveyed by the words used, interpreted in the light of all the circumstances? The reason of this is obvious. Defamatory language is harmful only as it purports to be the expression of the thought of him who uses it. In determining the effect of a slander the questions involved are: What is the thought intended to be expressed? and how much credit should be given to him who expresses it? The essence of the wrong is the expression of what purports to be the knowledge or opinion of him who utters the defamatory words, or of some one else, whose language he repeats. His meaning, to be ascertained in a proper way, is what gives character to his act, and makes it innocent or wrongful. The damages depend chiefly upon the weight which is to be given to his expression of his meaning, and all the questions relate back to the ascertainment of his meaning.
In the present case we are concerned only with the meaning of the defendant in regard to the person to whom the language of the published article was to be applied, and the question to be decided is, how may his meaning legitimately be ascertained? Obviously, in the first place, from the language used; and, in construing and applying the language, the circumstances under which it was written, and the facts to which it relates, are to be considered, so far as they can readily be ascertained by those who read the words, and who attempt to find out the meaning of the author in regard to the person to whom they were written. It has often been said that the meaning of the language is not necessarily that which it may seem to have to those who read it as strangers, without knowledge of facts and circumstances which give it color and aid in its interpretation, but that which it has when read in the light of events which have relation to the utterance or publication of it. For the purposes of this case it may be assumed, in favor of the plaintiff, that if the language used in a particular case, interpreted in the light of such events and circumstances attending the publication of it as could readily be ascertained by the public, is free from ambiguity in regard to the person referred to, and points clearly to a well-known person, it would be held to have been published concerning that person, although the defendant should show that, through some mistake of fact, not easily discoverable by the public, he had designated in his publication a person other than the one whom he intended to designate. It may well be held that where the language, read in connection with all the facts and circumstances which can be used in its interpretation, is free from ambiguity, the defendant will not be permitted to show that through ignorance or mistake he said something, either by way of designating the person, or making assertions about him, different from that which he intended to say; but his true meaning should be ascertained, if it can be, with the aid of such facts and circumstances of the publication as may easily be known by those of the public who wish to discover it. Whether the defendant should ever be permitted to state his undisclosed intention in regard to the person of whom the words are used may be doubtful. If language purporting to be used of only one person would refer equally to either of two different persons of the same name, and if there were nothing to indicate that one was meant, rather than the other, there is good reason for holding that the defendant's testimony in regard to his secret intention might be received, but perhaps such a case is hardly supposable. Odgers, in his book on Libel and Slander, (at page 129,) says: "So, if the words spoken or written, though plain in themselves, apply equally well to more persons than one, evidence may be given of both the cause and occasion of publication, and of all the surrounding circumstances affecting the relation between the parties, and also any statement or declaration made by the defendant as to the person referred to." In Reg. v. Barnard, 43 J.P. 127, when it was uncertain whether the libel referred to the complainant, or not, and when the language was applicable to him, Lord Chief Justice Cockburn held the affidavit of the writer, that he did not mean him, but some one else, to be a sufficient reason for refusing process. In De Armond v. Armstrong, 37 Ind. 35, evidence was received of what the witnesses understood in regard to the person referred to. In Smart v. Blanchard, 42 N.H. 137, it is stated that extrinsic evidence is to be received "to show that the defendant intended to apply his remarks to the plaintiff," when his meaning is doubtful. Goodrich v. Davis, 11 Metc. (Mass.) 473, 480, 481, 484, and Miller v. Butler, 6 Cush. 71, are of similar purport. See, also, Barwell v. Adkins, 1 Man. & G. 807; Knapp v. Fuller, 55 Vt. 311; Com. v. Morgan, 107 Mass. 199, 201.
If the defendant's article had contained anything libelous against A.P.H. Hanson, there can be no doubt that he could have maintained an action against the defendant for this publication. The name used is not conclusive in determining the meaning of the libel in respect to the person referred to. It is but one fact to be considered with other facts upon that subject. Fictitious names are often used in libels, and names similar to that of the person intended, but differing somewhat from it. A.P.H. Hanson could have shown that the description of him by name, residence, and...
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