Ingalls v. Hastings & Sons Pub. Co.

• Decision Date: 16 September 1939
• Citation: 304 Mass. 31,22 N.E.2d 657
• Parties: INGALLS v. HASTINGS & SONS PUB. CO. SAME v. TOLMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 31

22 N.E.2d 657

INGALLS

v.HASTINGS & SONS PUB. CO.

SAME

v.TOLMAN.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 16, 1939.

Two actions of tort for libel by Alfred W. Ingalls against the Hastings & Sons Publishing Company and against Augustus B. Tolman. From an order sustaining defendant's demurrer in both actions, the plaintiff appeals.

Order sustaining demurrer in each action reversed.Appeal from Superior Court, Essex County.

W. R. Bigelow and A. W. Ingalls, both of Boston, for plaintiff.

H. R. Mayo and A. B. Tolman, both of Lynn, for defendants.

FIELD, Chief Justice.

These are two actions of tort for libel; one against a corporation, the other against an individual. The declaration alleged that the defendants published or caused to be published in a newspaper a libelous article concerning the plaintiff. The declaration in the action against the corporate defendant contains the allegation that the alleged ‘publication * * * was made on a date and time at which the plaintiff was before the public as a candidate for the office of Register of Probate and Insolvency of Essex County, and that because of that fact his candidacy was greatly affected adversely’ and the declaration in the action against the individual defendant contained an allegation that the defendant in causing the alleged libel to be published intended thereby ‘to influence the result of an election, which was to be held seven days after the date of said publication.’ Material portions of the alleged libel appear in a footnote.¹

Demurrers to the declarations, and to each of the two counts of the declaration in the action against the corporate defendant, were sustained, and the plaintiff appealed. Peck v. Wakefield Item Co., 280 Mass. 451, 453, 183 N.E. 70. Each of those counts sets forth in full the alleged libellous article, as did the declaration in a single count in the action against the indicidual defendant.

1. The declarations allege a libel and in that respect were good against demurrer.

Whether a publication is defamatory or not presents a question as to the meaning of words which differs from that presented when a written contract comes before a court for construction. In the latter case, the question normally is, what meaning a reasonable man, knowing all the relevant circumstances, give to the words of the document? In general, that meaning is determined by the judge, and not left to the jury. Smith v. Faulkner, 12 Gray 251, 254-256;Cunningham v. Washburn, 119 Mass. 224, 226, 227;Bascom v. Smith, 164 Mass. 61, 76, 41 N.E. 130;Aldrich v. Bay State Construction Co., 186 Mass. 489, 493, 494, 72 N.E. 53;Arcade Malleable Iron Co. v. Jenks, 229 Mass. 95, 100, 118 N.E. 288; Am. Law Inst. Restatement: Contracts, § 230; Williston, Contracts, Rev.Ed., §§ 607, 616. Wigmore, Evidence, 2d ed., § 2556. But a writing is a libel if, in view of all relevant circumstances, it discredits the plaintiff in the minds, not of the court (King v. Northeastern Publishing Co., 294 Mass. 369, 2 N.E.2d 486), nor of wise, thoughtful and tolerant men, nor of ordinary reasonable men, but of any ‘considerable and respectable class in the community.’ Peck v. Wakefield Item Co., 280 Mass. 451, 454, 183 N.E. 70, 71. The emotions, prejudices and intolerance of mankind must be considered in determining the effect of a publication upon the standing of the plaintiff in the community. The question, therefore, whether a publication is defamatory or not, being dependent upon the effect produced upon the public or a considerable part of it, is one particularly fit for trial by jury. Possibly a court might rule upon demurrer, or by way of instruction to a jury, that a particular publication is defamatory as matter of law. Loker v. Campbell, 163 Mass. 242, 244, 245, 39 N.E. 1038;Fay v. Harrington, 176 Mass. 270, 273, 57 N.E. 369. But compare Broome v. Agar, 138 Law Times, N.S., 698. And it is settled that a publication may be so clearly not defamatory that a court may sustain a demurrer or direct a verdict for the defendant. Peck v. Wakefield Item Co., 280 Mass. 451, 454, 183 N.E. 70. But a demurrer to a declaration in libel cannot be sustained, nor can a case be withdrawn from the jury, unless the words (under the circumstances, G.L.[Ter.Ed.] c. 231, § 147, Form 18, Instruction, page 2893; McCallum v. Lambie, 145 Mass. 234, 237, 13 N.E. 899;Friedman v. Connors, 292 Mass. 371, 374, 375, 376, 198 N.E. 513) are incapable of a defamatory meaning. Twombly v. Monroe, 136 Mass. 464, 468, 469;Fay v. Harrington, 176 Mass. 270, 273, 57 N.E. 369;Robinson v. Coulter, 215 Mass. 566, 570, 102 N.E. 938;Peck v. Wakefield Item Co., 280 Mass. 451, 453, 456, 183 N.E. 70;King v. Northeastern Publishing Co., 294 Mass. 369, 2 N.E.2d 486;Fahy v. Melrose Free Press, Inc., Mass., 10 N.E.2d 187.

Tested by these rules, the words of the publication in these cases could be found to be libellous. That the words attributed to the plaintiff in the publication constituted no reflection upon the late Edwin C. Lewis personally, is immaterial. Cox v. Lee, 4 L.R.Ex. 284; Byrne v. Deane, [1937] 1 K.B. 818, 841. The interpretation put upon the plaintiff's words by the defendants was that the plaintiff charged that ‘Mr. Lewis spent his spare time peering through the Ingalls' window at a middle-aged negress, and that Ingalls [the plaintiff] had to plant a row of trees to protect her privacy.’ To impute to the plaintiff the making of such a charge against a respectable man, then deceased, could be found to be libellous. Moreover, the suggestion that Ingalls ‘as usual,’ might fight ‘behind the ample skirts of his wife,’ could be found libellous, as implying cowardice. Whether in other particulars the words of the publication could be found to be libellous need not be considered.

2. The other reasons for demurrer are unsound.

Since the article published, taken by itself, could be found libellous, it is immaterial upon demurrer whether special damage or defamation of the plaintiff in some special capacity was or was not properly alleged. Craig v. Proctor, 229 Mass. 339, 340, 341, 118 N.E. 647;Fahy v. Melrose Free Press, Inc., Mass., 10 N.E.2d...