Pierce v. Rodliff

• Decision Date: 18 July 1901
• Citation: 95 Me. 346,50 A. 32
• Parties: PIERCE v. RODLIFF.
• Court: Maine Supreme Court

50 A. 32

95 Me. 346

PIERCE

v. RODLIFF.

Supreme Judicial Court of Maine.

July 18, 1901.

(Official)

Exceptions from supreme judicial court Penobscot county.

Action by Thomas H. B. Pierce against Alvin Rodliff. Verdict for defendant Plain tiff excepts and moves for a new trial. Motion and exceptions sustained.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, FOGLER, and POWERS, JJ.

T. H. B. Pierce and H. Hudson, for plaintiff.

L. B. Waldron and L. C. Stearns, for defendant.

WHITEHOUSE, J. This was a suit for publishing in the Eastern Gazette, at Dexter, August 24, 1809, and twice in September, 1899, the following advertisement, alleged to be a libel upon the plaintiff, viz.:

"Wanted. All persons that have put bills for collection in hands of Thos. H. B. Pierce, of Dexter, from the year 1885 to August, 1899, and received unsatisfactory returns, are requested to communicate with X. Y. Z., Post Office, Dexter, Me.,"—meaning, according to the innuendo in the declaration, tha* "the plaintiff had since 1885 been conducting his business as an attorney dishonestly and unsatisfactorily to his clients, and had not paid over moneys collected as his duly required." The defendant contended in justification that the language of the advertisement was true.

Upon this branch of the case the presiding judge instructed the jury as follows:

"I instruct you, as a matter of law, that the advertisement is susceptible of the meaning that is put upon it by the plaintiff in his writ. It is susceptible of that meaning, but you will determine whether or not it is so understood, whether or not that is the real meaning to be put to it; and, if you find that it is, then, gentlemen, it is libelous, and the law imputes some damage that the plaintiff has received from the publication of that article, unless the defendant on his part shows to the jury some legal excuse or justification. * * * So, gentlemen, the burden falls upon him to satisfy the jury, if he will defend against the libel, or against this publication, that it is true. So, gentlemen, although you may think that a publication of this sort, even if true, maliciously done, would be unjustifiable,—be the subject of a cause of action upon which damages might be recovered,—yet the law is otherwise. * * * The law, in its growth, has found it expedient to declare that, although a publication may seem to be vexatious and unjustifiable, yet, if the publication be true, the person libeled shall recover no damages. That is, the truth of the publication of a libel is now a defense."

But section 29 of chapter 82, Rev. St., declares that "in a suit for writing and publishing a libel, evidence shall be received to establish the truth of the matter charged as libelous. If its truth is established, it is a justification, unless the publication is found to have originated in corrupt or malicious motives." It is evident that this provision of our statute was inadvertently overlooked by the presiding justice. It is evident that it was also overlooked by the plaintiff at the trial term, for after a verdict against him he filed a motion to have the verdict set aside as against law and evidence, and also took exceptions to certain rulings and instructions of the presiding judge, but took no exceptions to the instruction above quoted.

In argument, however, the plaintiff contends that upon the uncontroverted testimony the publication unquestionably appears to have "originated from corrupt and malicious motives," and insists that upon the motion the verdict should be set aside as against law. This question would have been more appropriately presented in the plaintiff's bill of exceptions; but, while the practice of raising questions of law upon a motion is not to be encouraged, in cases where manifest error in law has occurred, and injustice would otherwise inevitably result, the law of the case may be examined upon a motion, and, if required, the verdict be set aside as against law. Berry v. Pullen, 69 Me. 101, 31 Am. Rep. 248, is a case exactly in point. At the trial the presiding judge instructed the jury that an oral agreement between the payee and principal maker of a promissory note to extend the time of payment as long as the latter would pay 8 per cent. interest would be a valid agreement and discharge the surety. No exceptions were taken, but on the motion for a new trial the court corrected the error and set aside the verdict as against law. The same course was pursued in Bigelow v. Bigelow, 93 Me. 439, 45 Atl. 513; the court observing that the questions might have been more concisely raised upon exceptions, but as the verdict was not warranted by the facts the questions of law were still open to them on motion.

In the case at bar the defendant claims that in publishing this advertisement, and in all that he did in the premises, he was acting in behalf of his father-in-law, S. M. Ingalls, who claimed to have acquired title, by a parol assignment, to a certain duebill for $725, against Orrin Fitzgerald, Jr., dated at Boston October 5, 1876, upon which a partial payment of $25 was made June 17, 1879. After the death of Fitzgerald, to wit May 25, 1898, Ingalls intrusted this duebill to the plaintiff "for collection at the discretion of said Pierce," and "if collected said Ingalls is to have $300 out of same."

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