Lothrop v. Adams

• Decision Date: 20 October 1882
• Citation: 133 Mass. 471
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles D. Lothrop v. Charles H. Adams & others

133 Mass. 471

Charles D. Lothrop v. Charles H. Adams & others

Supreme Court of Massachusetts

October 20, 1882

Argued November 3, 1881; November 7, 1879 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Essex. Tort, in seven counts, against the proprietors of a newspaper, called the Springfield Republican, for publishing in said paper, at different times, false and malicious libels of and concerning the plaintiff, a minister, in respect to his treatment of his family. Writ dated October 16, 1876.

The fifth count alleged that, on September 12, 1876, the defendants published in their said paper a false and malicious libel, as follows: "Amherst. Trial of Rev. C. D. Lothrop. Special despatch to the Republican. The trial of Rev. Mr. Lothrop for cruelty to his family was begun before the First Church in secret session last evening, the accused not being present. The testimony covered the training of the three daughters from their infancy up, and was of the most revolting character, involving brutal horsewhippings for trivial offences, systematic starving, feeding of rotten meat, and positive dishonesty and faithlessness in his family relations."

The answer admitted that the articles set forth in the declaration were published in the Springfield Republican, and that the defendants were, at the times they were published, proprietors of that newspaper; alleged that in publishing said paper they simply presented to the public those matters of general interest, public, political, personal and general news, which as journalists they believed to be in the interest of society and the public good; that in commenting upon the acts or character of any individual they had not been actuated by malice or any malicious motive; that in publishing the acts or misconduct of any public person, or person holding a position like that of the plaintiff, which of itself would tend to procure him the trust and confidence of the community in which he lived, they were governed entirely by what they considered as their duty in presenting to the public those facts which they fully believed to be true; and they denied that they falsely and maliciously published any articles concerning the plaintiff; and averred that all the articles published by them were substantially true. The answer further set forth, that the plaintiff was tried by his church, and the testimony at such trial fully proved all the various matters set forth in the fifth count; and that the plaintiff was found guilty and expelled from membership in said church.

Trial in this court, at April term 1879, before Morton, J., who allowed a bill of exceptions in substance as follows:

The plaintiff rested his case upon the pleadings. The defendants then put in their evidence, and the plaintiff put in evidence in rebuttal.

1. One Henry, of Amherst, where the plaintiff resided at the time of the publication of the alleged libels, testified that he had resided in Amherst a number of years prior to said publications, had been engaged in the provision business there, had known the plaintiff for several years prior to said publication, and had frequently traded with him. The defendants' counsel put the following question to the witness: "State whether or not there were reports of the brutal treatment of his children by the plaintiff prior to the first publication of such reports in the Springfield Republican." This question was objected to by the plaintiff, and excluded by the judge. It was not contended that this was offered, as evidence of any general reputation, on the question of damages. It appeared in evidence, that one Griffin was the chief local editor of the Springfield Republican in 1876; that Griffin had sent an assistant local editor or reporter to Amherst, before the publication of the alleged libels, to investigate the matters concerning the plaintiff, the result of whose inquiries were published in the Springfield Republican.

2. The testimony of Emma M. Lothrop and of Mary S. Lothrop, children of the plaintiff, tended to show that on the morning of March 31, 1876, which was the eighteenth birthday of Mary, there was a disturbance in the plaintiff's family; that Mary was whipped on her hand with a slipper by the plaintiff; that the wife of the plaintiff had an ill turn and was sitting on the chamber stairs; that, while there, Mary was by her side for the purpose of ministering to her wants, and that, while there, her father struck her on the side of her head with his hand, and kicked her. Mrs. Lothrop, the wife of the plaintiff, was a witness for the plaintiff, and testified as to what took place on that morning, and, among other things, testified that the plaintiff did not kick Mary. On cross-examination, the defendants' counsel asked her if her son Charles was present at what occurred on that morning, to which she answered in the affirmative. The defendants' counsel then asked her whether, in a subsequent conversation, Charles had been asked by the plaintiff what he should say if he was inquired of as to whether his father kicked Mary that morning, to which she answered in the affirmative. No further questions were asked her upon this subject by the defendants' counsel. Upon reexamination, the plaintiff's counsel asked her what reply Charles made to the said inquiry. This question the defendants' counsel objected to, but the judge ruled that it was competent, and the witness testified that Charles said his father did not kick Mary. Charles was in court during the trial, and was not called by either party, which fact was commented upon by the respective counsel in their arguments.

3. The plaintiff testified that some years ago he whipped his daughter Anna, in the attic, with a small riding whip, because he believed that she had been guilty of wrongfully taking things that did not belong to her; that she had taken the other children's money to buy oranges with, and then said that they were given to her by one Stearns. The defendants offered to show by Anna that she was not guilty of stealing, and that the oranges were in fact given her by said Stearns. They also offered to show by Stearns that the oranges were in fact given by him to Anna. The judge ruled that it was not competent to show merely that the plaintiff was mistaken as to the facts upon which he acted in inflicting punishment, and that the testimony, offered to show merely that Anna was not guilty of the acts for which she was punished, was collateral and immaterial, and excluded the evidence upon this ground, and also upon the ground that it was not admissible as of right in this stage of the case.

4. The defendants asked the judge to rule, that express malice of one of the defendants could not affect the other defendants, unless it appeared that they participated in such malice; and if the jury should find a verdict on the ground of express malice, they could find it as to those only who were shown to be actuated by such malice. The judge refused so to rule.

5. The defendants asked the judge to rule, "that the defendants are not called upon to show that the plaintiff was guilty of systematic starving, or feeding rotten or unwholesome meat to his children, or that he was guilty of dishonesty and faithlessness in his family relations, the declaration of the plaintiff not setting forth that the defendants made any such charges against him." The judge declined to give this instruction.

6. The defendants asked the judge to instruct the jury, "that the fifth count, being a fair report of the trial before the First Church at Amherst, and so admitted to be by the plaintiff, is not libellous;" but the judge, not understanding that such admission had been made, declined so to instruct the jury, but ruled that, although a public newspaper has the right to publish a fair report of the proceedings before a court or an ecclesiastical tribunal, yet, as this article contains allegations against the plaintiff which are defamatory, as it does not purport to be a full report of the proceedings, and as the defence of privilege is not set up in the answer, the jury cannot treat it as privileged, and therefore not libellous.

7. The defendants asked the judge to instruct the jury, that, "if the charges proved are of such a nature and character that the existence of those not proved, if any such there are, would not affect the plaintiff, then he is entitled to recover only nominal damages." The judge had previously instructed the jury, that, if they should find that some of the libels are true and some are not true, then their duty would be to give the plaintiff only such damages as he had proved that he had sustained solely by reason of those which were not true; that they must not give him any damages for such charges as were proved to be true, but only such damages, if any, caused by the additional untrue charges. The judge declined to give the instruction in the language requested, deeming that it had been covered by the instructions already given.

The jury rendered a verdict for the plaintiff, in the sum of $ 1000; and the defendants alleged exceptions.

Exceptions overruled.

The case was argued at the bar in November 1879, by D. Saunders & C. P. Thompson, (C. G. Saunders with them,) for the defendants; and by S. B. Ives, Jr., (G. B. Ives with him,) for the plaintiff; and was reargued in November 1881, by Thompson & C. G. Saunders, for the defendants; and by S. B. Ives, Jr., for the plaintiff.

Field, J. W. Allen & C. Allen, JJ., absent.

OPINION

Field, J.

1. The question "whether or not there were reports of the brutal treatment of his children by the plaintiff prior to the first publication of such reports," which was ruled out by the court, was not put for the purpose of introducing evidence affecting the...