McCallum v. Lambie

• Decision Date: 22 November 1887
• Parties: MCCALLUM v. LAMBIE. PIERCE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 234

13 N.E. 899

MCCALLUM

v.LAMBIE.

PIERCE

v.SAME.

Supreme Judicial Court of Massachusetts, Hampshire.

November 22, 1887.

Exceptions from superior court, Hampshire county; MASON, Judge.

The first case was an action for the publication of a libelous article. The plaintiff's declaration was as follows:

“First Count. The plaintiff says the defendant falsely and maliciously accused the plaintiff of conspiring with Chauncey H. Pierce, of said Northampton, to defraud the neighbors and friends of said plaintiff and said Pierce, and the defendant caused said false and malicious libel to be published in a newspaper published in said Northampton, called the ‘Hampshire County Journal,’ a copy whereof is hereto annexed, viz.: ‘As to the electric light company, I doubt not all are willing it should pay a fair dividend, six per cent., even ten per cent., on the actual value of the plant. Here comes the sub: when the Northampton Electric Light Company was capitalized for $40,000, its actual value was not $15,000. It was a plan for the Thomson-Houston Company to make a good sale, as no profit could be made with the sharp, bitter competition of the Schuyler Company in the field, and it was a scheme by which certain parties [[[meaning the plaintiff and said Pierce] attempted to make $20,000 or more by buying a property worth in the neighborhood of $15,000, and capitalizing it for $40,000, and by selling stock to their neighbors and friends [meaning the neighbors and friends of the plaintiff and said Pierce] which was more than half water, [meaning that more than half of the par value of said stock represented no assets, and was of no real value.] In fact, the Thomson-Houston plant, at the time it was sold and capitalized for $40,000, was not worth near $15,000, as a large sacrifice had to be made, and was made, by the projectors, [[[meaning plaintiff and said Pierce,] who dare not force the loss of removing the Schuyler competition on the stockholders, after making 100 per cent. and more on the stock sold.’

“Second Count. The plaintiff says that he is engaged in the business of a merchant in said Northampton, and as a manufacturer in the city of Holyoke, in the county of Hampden, in said commonwealth; and the plaintiff says the defendant caused to be published in a newspaper published in said Northampton, called the ‘Hampshire County Journal,’ a false and malicious libel concerning the plaintiff, [a copy whereof is hereto annexed,] whereby the plaintiff was greatly injured in his trade, business, and employment.” (The copy annexed was the same as was annexed to the first count and which is set out above.)

To the declaration the defendant filed a demurrer, “because neither count states a legal cause of action, substantially in accordance with the rules contained in Pub.St. c. 167; because there is not set forth anything in either count which is, by its natural import, libelous, or which furnishes legal ground for an action for libel, or is actionable on any ground; because the matter set out, with accompanying averments, in either count, is not libelous as to plaintiff, or at all; nor does it appear that the matter set out relates to plaintiff.”

The superior court sustained the demurrer, and the plaintiff alleged exceptions.

The plaintiff's declaration in the second action was the same as in the first, with an immaterial exception, and the case is governed by the decision in the first case, as appears in the opinion of the court.D.W. Bond, for plaintiff.

The article published has such a relation to the occupation of the plaintiffs that it tends directly to injure them in respect to it, and impair confidence in their character for honesty and fair dealing. When words have such an effect, it is not necessary that the trade or business be referred to in the article. Com. v. Waterman, 122 Mass. 43;Sanderson v. Caldwell, 45 N.Y. 398.

Wm. G. Bassett, for defendant.

The bill of exceptions should be dismissed. Plaintiff's remedy was by appeal. Pub.St. c. 167, § 67; Id. c. 152, § 10; Cowley v. Train, 124 Mass. 226; Railroad Co. v. Watson, 4 Gray, 61;Bennett v. Clemence, 3 Allen, 431. Exceptions are applicable to rulings arising upon and incidental to a trial. Pub.St. c. 167, § 70. The practice is by appeal. Cook v. Cook, 100 Mass. 194;Colt v. Learned, 118 Mass. 380;Homer v. Englehardt, 117 Mass. 539; Ames v. Railway Co., Id. 541;Adams v. Stone, 131 Mass. 433;McCann v. Tillinghast, 140 Mass. 327, 5 N.E.Rep. 164. The words of the article are not libelous in themselves. They neither accuse plaintiff of crime, dishonesty, or immorality, nor do they blacken his reputation, or expose him to public hatred, contempt, or ridicule. They do not amount to a charge of conspiracy by plaintiff with a particular person to defraud a class of persons, as is alleged. There is nothing to go to trial on. Twombly v. Monroe, 136 Mass. 464;Goodrich v. Davis, 11 Metc. 473; Homer v. Englhhardt, supra; Adams v. Stone, supra; Dooling v. Publishing Co., 144 Mass. 258, 10 N.E.Rep. 809; Shattuck v. Allen, 4 Gray, 540;Boynton v. Remington, 3 Allen, 397; Mulligan v. Cole, L.R. 10 Q.B. 549; Bank v. Henty, 5 C.P.Div. 514, 7 App.Cas. 741; Odgers, Sland. 540; Bigelow, 25. The article is impersonal; there is no characterizing by name, occupation, residence, or in any way. It is about acts, not actors. Moral character is not assailed, nor is unworthy motive or evil design imputed. The deficiency in the words themselves to make out libel, or that plaintiff was referred to, is not supplied by any averments. Does a suggestion that the stock of an electric light company is expected to sell too high, and an argument to show that it is true, amount to defamation of any one who may say that he is referred to and defamed? Goodrich v. Davis, supra; Chenery v. Goodrich, 98 Mass. 224; Adams v. Stone, supra; York v. Johnson, 116 Mass. 482;Baldwin v. Hildreth, 14 Gray, 221;Clay v. Brigham, 8 Gray, 161;Tebbetts v. Goding, 9 Gray, 254;Carter v. Andrews, 16 Pick. 1; Bank v. Henty, supra. The statements in the second count, of the nature of plaintiff's business, and the averment that he was injured in it by the article, do not help. The words published had no reference to his general business. The language was not such as, either as a necessity or natural consequence, occasioned damage to it. Swam v. Tappan, 5 Cush. 104; Cook v. Cook, supra; Bloss v. Tobey, 2 Pick. 320;Snell v. Snow, 13 Metc. 278; Weldon v. De Bathe, 54 Law J.Q.B. 114, L.R. 14 Q.B. 339; Chamberlain v. Boyd, 11 Q.B.Div. 407; 2 Greenl.Ev. §§ 254, 256, 420; 2 Townsh.Sland. & Lib. § 146.

KNOWLTON, J.

These two cases differ only in the kinds of business in which the plaintiffs are respectively alleged to have been engaged, and the opinion given in the first in equally applicable to the second also.

The defendant contends that the only remedy for an erroneous ruling upon a demurrer is by appeal, and that the bill of exceptions should be dismissed. The usual and better practice is to bring to this court questions of law arising upon demurrers in the superior court by appeal, and not by exception; but by Pub.St. c. 153, § 8, “in all cases, civil and criminal, *** a party aggrieved by an opinion, ruling, direction, or judgment of the court in matters of law may allege exceptions thereto,” upon which the matter may be further heard. An appeal from a ruling or judgment upon a demurrer in an action at law in the supreme judicial court wil not lie, and the remedy for error in such a case is by exception only. Cowley v. Train, 124 Mass. 226. Appeals and exceptions taken upon interlocutory matters cannot be heard in this court until the proceedings at nisi prius to determine the legal rights of the parties appear to be ended. Bennett v. Clemence, 3 Allen, 431. In this suit the record indicates that the order of judgment, and the ruling sustaining the demurrer, were simultaneous, and the exceptions then taken are properly before us.

The declaration is in two counts,-the first to recover general damages for an injury to reputation from the publication of a libel; and the second charging an injury to the plaintiff's business from the same cause. In actions of libel and slander, it has always been held necessary, both in England and in this country, to allege...