Howland v. George F. Blake Mfg. Co.

• Decision Date: 23 June 1892
• Citation: 156 Mass. 543,31 N.E. 656
• Parties: HOWLAND et al. v. GEORGE F. BLAKE MANUF'G CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 543

31 N.E. 656

HOWLAND et al. v. GEORGE F. BLAKE MANUF'G CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1892

COUNSEL

E. Avery, H.L. Baker, and J.C. Sharkey, for plaintiffs.

C.W Bartlett and E.R. Anderson, for defendant.

OPINION

KNOWLTON J.

1. The first contention of the plaintiffs is that the answer is insufficient to authorize the introduction of evidence of the truth of the various allegations contained in the alleged libel. It is argued that the answer, taken in connection with the declaration, does not definitely show what the defendant intends to prove in justification. If the plaintiffs had had difficulty in knowing for what to prepare under this answer they might have moved for a more specific statement, and it would have been in the power of the court to make such an order as would amply protect their rights. In the absence of such a motion, the defendant could properly assume that evidence would be received tending to prove the truth of any statements made in the alleged libel, and it would have been unfair to the defendant to exclude its evidence on an objection first interposed at the trial. McLaughlin v Cowley, 127 Mass. 316.

2. The defendant introduced evidence tending to show that the plaintiffs failed to perform their contract with the town of Maynard, and that they supplied and endeavored to supply work and materials inferior to those called for by their agreement. The plaintiffs then offered evidence of their business reputation and of their individual reputation before they entered into the contract. There has been a great variety of opinion on the question how far a plaintiff may introduce evidence of his good reputation in an action of slander. In general, it is held that such evidence is incompetent unless his reputation is first attacked by the defendant; for he is presumed to be of good character until something appears to show the contrary. But if there is testimony against his reputation he may meet the attack by calling witnesses to show his good character. In this commonwealth, and in most jurisdictions, a defendant may prove, if he can, that the plaintiff is of bad reputation, in mitigation of damages, and rebutting testimony of a similar kind is competent on the same question. Ordinarily, evidence of the plaintiff's reputation is admissible only on the question of damages; but there are authorities which hold that in a certain class of cases it is competent on the question of liability. If the commission of a crime is charged in the libel, and the defendant offers evidence of the truth of the charge, it is sometimes said that the plaintiff may show his previous good reputation in answer to the evidence of his guilt. This is the familiar rule in criminal trials, but courts have differed on the question whether it should be introduced in suits for libel or slander. In New York it is held that it should be confined to criminal prosecutions. Houghtaling v. Kilderhouse, 1 N.Y. 530, 2 Barb. 149, and cases cited. See, also, Gough v. St. John, 16 Wend. 645, 653; Pratt v. Andrews, 4 N.Y. 493; Miles v. Van Horn, 17 Ind. 245; Cornwall v. Richardson, Ryan & M. 305; Odger, Sland. & L. 298, note. In Downey v. Dillon, 52 Ind. 442, the court makes a distinction between cases in which the charge sought to be proved is of the commission of a crime and those in which the charge is of smaller magnitude, holding that in the former a plaintiff may show his good reputation in answer to evidence of the truth of the charge, and in the latter that he cannot. We are aware of no well-considered cases which go further than that. It is true that the plaintiff's reputation is in issue in an action of libel or slander, and when it is attacked it may be defended for the purpose of obtaining a proper award of damages. But on principle as well as authority evidence of good reputation is not competent to show that a plaintiff is not guilty of a dishonorable or unlawful act which is not punishable as a crime, any more than evidence of his bad reputation would be competent to prove his guilt. This kind of evidence has usually been quite strictly confined to criminal prosecutions, and it has never been admitted in reference to matters which are not subjects of criminal prosecution. It has sometimes been admitted in suits for malicious prosecution, where, from the nature of the action, the plaintiff has the burden of disproving in a civil suit charges which in a preliminary proceeding have been made against him in a criminal prosecution. McIntire v. Levering, 148 Mass. 546, 20 N.E. 191, and cases cited. In Harding v. Brooks, 5 Pick. 244, which was an action of slander, the verdict was for the plaintiff, and the question was whether he was rightly permitted to introduce evidence of his good character after it had been attacked by an attempt to prove the truth of the slanderous words. The adjudication was plainly right, for the evidence was competent on the question of damages; and assuming, as the court seems to have done, that the charge imputed acts punishable criminally, it was within the principle that in such a trial good reputation may be shown in answer to specific facts indicating guilt. We think this case should not be considered an authority for the introduction by a plaintiff of evidence of his good character in reply to evidence of the truth of a libel, except upon the question of damages, and in cases where the charge sought to be proved is of a criminal act. In the present case, the evidence was immaterial on the question of damages, for the verdict was for the defendant; and it was not competent for the purpose of disproving the truth of the charges, for it did not meet the issue, and the charges were not of punishable conduct. It was therefore rightly excluded.

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