Morasse v. Brochu

• Decision Date: 20 June 1890
• Citation: 25 N.E. 74,151 Mass. 567
• Parties: MORASSE v. BROCHU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 567

25 N.E. 74

MORASSE v. BROCHU.

Supreme Judicial Court of Massachusetts, Worcester.

June 20, 1890

COUNSEL

W.S.B. Hopkins and A.J. Bartholomew, for plaintiff.

John Hopkins and Charles Haggerty, for defendant.

OPINION

C ALLEN, J.

1. The defendant contends that there is no sufficient averment of special damages. The averment in respect to the plaintiff's loss of practice as a physician is that members of the church, and other persons, have refused to have transactions with him, or to employ him in his profession, whereby he has been deprived of the profits income, and emoluments thereof. The only omission of any needful averment which is suggested is that the names of the persons who have ceased or refused to employ the plaintiff should have been set out. Where there is merely an accusation of immorality, in words which might be spoken of any one whether having any particular occupation or not, it has often been held that a charge of special damages, from loss of custom or society, must include the names of those who have cut off from the plaintiff in consequence of the imputation. This rule has not been so strictly held in cases where the accusation has been made for the express purpose of injuring the plaintiff in his trade or profession, and has had that effect; and in various cases, and for differing reasons, the rule in such cases has been relaxed, and a general averment of loss of customers has been held sufficient. Evans v. Harries, 1 Hurl. & N. 251; Riding v. Smith, 1 Exch.Div. 91; Clarke v. Morgan, 38 Law T. (N.S.) 354; Hopwood v. Thorn, 8 C.B. 308, 309, per V. WILLIAMS, J.; Weiss v. Whittemore, 28 Mich. 366; Insurance Co. v. Perrine, 23 N.J.Law, 402, 415. See, also, Hargrave v. Le Breton, 4 Burrows, 2422; Hartley v. Herring, 8 Term R. 130. In this commonwealth, this question has not been decided. In Cook v. Cook, 100 Mass. 194, the charge was general, and had no relation to any particular occupation of the plaintiff, and there was no question of loss of custom or of society. In Fitzgerald v. Robinson, 112 Mass. 371, the averments were full, and no question arose. In the present case there was a demurrer to the declaration. The practice act requires that in case of a demurrer the particulars in which the alleged defect consists shall be specially pointed out. Pub.St. c. 167, § 12. In view of this requirement, the defendant specially and at length assigned five different grounds of demurrer, but there was no intimation of an objection on the ground that the names of the persons who would not employ the plaintiff were omitted. If the demurrer had contained this ground of objection, the plaintiff might have applied for leave to amend. Moreover, the practice act provides that no averment need be made which the law does not require to be proved, and that the substantial facts may be stated without unnecessary verbiage, (Id. § 2;) and the court may in all cases order either party to file a statement of such particulars as may be necessary to give the other party and the court reasonable knowledge of the nature and grounds of the action or defense, (section 61.) The demurrer having been overruled, no motion was made by the defendant for an order that the plaintiff be required to specify the names of persons referred to in the declaration. So far as the matter of pleading, therefore, is concerned, it must be considered that the defendant was content to go on trial without an averment of the names of these persons, and his request, at the close of the evidence, for an instruction to the jury that there was not sufficient allegation of special damage to make the words actionable, came too late, even if otherwise it could be considered as the proper way to raise the objection. It must now be taken therefore that there was a sufficient averment of special damages.

2. If there was a sufficient averment of special damages, then the question is, whether an imputation of the kind made by the defendant upon the plaintiff, when false, and when made for the express purpose of injuring the plaintiff in his profession, and when such injury is the probable and natural result of the speaking of the words, and when such injury actually follows, just as was intended by the defendant, will support an action by the plaintiff against the defendant. It is sometimes said that it will not, unless the words are defamatory. But the better rule is that such an imputation, whether defamatory of the plaintiff or not, will support an action, under the circumstances above mentioned. There were all the elements of a wrongful act deliberately done for the purpose of working an injury, and actually working one, even though the words have no meaning which, strictly speaking, could be called defamatory. Riding v. Smith, 1 Exch.Div. 91; Lynch v. Knight, 9 H.L.Cas. 600, per Lord WENSLEYDALE; Barley v. Walford, 9 Q.B. 197; Green v. Button, 2 Cromp., M. & R. 707; Insurance Co. v. Perrine, 23 N.J.Law, 402. See, also, Odgers, Sland. & Lib. 89, 92, (at bottom,) where the question is fully discussed. It may not be technically an action for slander, if the words are not defamatory, but the name of the action is of no consequence. In Kelly v. Partington, 5 Barn. & Adol. 648, LITTLEDALE, J., suggested the following illustration: "Suppose a man had a relation of a penurious disposition, and a third person, knowing that it would injure him in the opinion of that relation, tells the latter a generous act which the first had done, by whch he induces the relative not to leave him money, would that be actionable?" And Sir JOHN CAMPBELL answers: "If the words were spoken falsely with intent to injure they would be actionable." In Odgers on Slander & Libel, the following illustration is given: "If in a small country town where political or religious feeling runs very high, I maliciously disseminate a report, false to my knowledge, that a certain tradesman is a radical or a dissenter, knowing that the result will be to drive away his customers, and intending and desiring that result, then if such result follows, surely I am liable for damages in an action on the case, if not in an action of slander." Page 90. In such a case there is an intentional causing of temporal loss or damage to another without justifiable cause, and with the malicious purpose to inflict it, which will sustain an action of tort. Walker v. Cronin, 107 Mass. 555. And under this doctrine, in the opinion of a majority of the court, the present action may well stand.

3. But even if the averment of special damages is to be regarded as insufficient, for want of naming the persons who would not employ the plaintiff as a physician, the question remains whether the words are actionable per se, as containing a defamatory imputation upon the plaintiff, or, rather, whether there was enough in them to warrant the judge in submitting them to the jury. Words are to be held actionable per se which convey an imputation upon one in the way of his profession or occupation, and in such case there need be no averment of special damages. The old phraseology of Comyn's Digest, which has often been followed or repeated, is that "words not actionable in themselves are not actionable when spoken of one in...