Middleby v. Effler

• Decision Date: 16 October 1902
• Docket Number: 422.
• Parties: MIDDLEBY v. EFFLER.
• Court: U.S. Court of Appeals — First Circuit

118 F. 261

MIDDLEBY v. EFFLER.

No. 422.

United States Court of Appeals, First Circuit.

October 16, 1902

John K Berry (Eugene C. Upton, on the brief), for plaintiff in error.

Harvey N. Shepard (Curtis G. Metzler, on the brief), for defendant in error.

Before COLT and PUTNAM, Circuit Judges.

PUTNAM Circuit Judge.

This is a writ of error on which the defendant below seeks to reverse a judgment and set aside a verdict in favor of the plaintiff below. It is convenient to call the defendant below the 'defendant,' and the plaintiff below the 'plaintiff.' The action was for slander. The declaration contains several counts, but the sixth, inserted by amendment, gives the substance of everything in the others, and also the substance of all which the plaintiff claims to have been proved in her behalf. This count is as follows:

'For that the defendant, on or about the 3d day of September A.D. 1900, at Winthrop, in the county of Suffolk and commonwealth of Massachusetts, falsely and maliciously spoke and published of the plaintiff words imputing to the plaintiff the commission of a crime, in words substantially as follows, to wit: 'You have written anonymous letters. They are scurrilous. You are criminally liable. It is a state's prison offense. You will be arrested,'-- whereby the plaintiff was seriously injured and damaged in her reputation and in her position in society, and brought into public scandal, and has suffered great distress both in body and mind, all to the damage of the plaintiff, as she says, the sum of twenty thousand dollars.'

It will be noticed that the count contains no colloquium nor innuendo, and nothing to explain the alleged spoken words, or to show what particular crime they imputed to the plaintiff. The case made for her was equally indefinite. The alleged slanderous statement, as proven in her behalf, was as follows: The plaintiff met the defendant and his wife, with some others. She said to his wife: 'I understand I am accused of writing those letters?'-- meaning the anonymous letters. The defendant replied: 'Yes; you wrote them, and you wrote your name on the hotel register. They are scurrilous. It is a criminal offense. It is a state prison offense. I shall have you arrested.' There is nothing in the plaintiff's declaration, nor in the conversation as represented by her evidence, which in terms connects itself with any United States statute. Nevertheless, in its charge to the jury, the court used the following language:

'If you find that the words were uttered substantially as alleged, then my instruction is that the words, in their natural import, amount to a charge of a crime against the laws of the United States, and, if they are not true, then the plaintiff is entitled to recover, and is entitled to some damages.'

It is not claimed that the court in any way modified this to the advantage of the defendant.

It is to be observed that this was a positive instruction, and that the jury was left to find only whether the words were uttered substantially as alleged, and whether they were true. The deductions or inferences to be drawn from them, and that in their natural import they alleged a crime against the United States, were ruled absolutely. We find nothing suggested by the plaintiff on this point, except only the general proposition that, taking the words all together, they could not be construed other than as charging her with the crime of having used the mails for sending anonymous, scurrilous letters. We wish that the position of the circuit court in regard to this topic, and the standpoint from which it made its ruling, were more clearly explained to us. In view of the statute in force at the time of the alleged slander,-- that of September 26, 1888 (25 Stat. 496), -- and of the only decisions of the supreme court which touch this topic (Swearingen v. U.S., 161 U.S. 446, 16 Sup.Ct. 562, 40 L.Ed. 765; Price v. U.S., 165 U.S. 311, 17 Sup.Ct. 366, 41 L.Ed. 727; and Dunlop v. U.S., 165 U.S. 486, 17 Sup.Ct. 375, 41 L.Ed. 799), we are unable to find anything which contains a proper suggestion of a federal crime in the mere charge of writing anonymous, scurrilous letters. Indeed, there would not be such even in a charge of both writing and mailing.

It is true that under the federal statutes the mailing of scurrilous matter imprinted on a postal card, or exposed on the exterior of a sealed letter, may be criminal; and it is also true that a crime of that character is punishable by imprisonment, which may be in the penitentiary, amounting, therefore, by the common understanding, to a 'state prison offense,' as alleged in the n plaintiff's declaration. An unjustifiable charge of mailing such nonmailable matter, as it involves a crime punishable by imprisonment, might furnish a basis for an action of slander, even without any proof of special damage. This is such a well-settled rule of law that it would be a waste of time to cite authorities in reference thereto. But it requires a stretch of the imagination, in which the law could not indulge, to hold that a declaration or proofs which, without colloquium or innuendo, merely allege the writing of anonymous and scurrilous letters, could cover a charge of mailing postal cards or of imprinting objectionable matter on the exteriors of envelopes. U.S. v. Chase, 135 U.S. 255, 10 Sup.Ct. 756, 34 L.Ed. 117, carefully explained that the then statute with reference to nonmailable matter was to be so construed that the word 'letter' had relation only to the contents of sealed matter. Subsequently the statute was amended to meet that decision, as shown by the act of 1888, to which we have already referred, and as explained in Andrews v. U.S., 162 U.S. 420, 16 Sup.Ct. 798, 40 L.Ed. 1023. Nevertheless, there never has been any statutory amendment which authorizes any interpretation to be put on the word 'letter' beyond that given in U.S. v. Chase; and there is nothing in the common use of language by force of which the same word, as used by the pleadings and the witnesses in the case before us, has any different meaning.

Moreover the language alleged to have been used may well have been construed to import a crime under the laws of Massachusetts. It may be true that not every scurrilous letter is criminally libelous; but, inasmuch as the language alleged to have been used charged certain particular letters to have been criminal, it looked towards an offense against the law of that state, punishable by fine or imprisonment, or by both. While, without colloquium or innuendo, it was technically inadequate for either, the matter...