Tillson v. Robbins

• Decision Date: 07 June 1878
• Citation: 68 Me. 295
• Court: Maine Supreme Court
• Parties: DAVIS TILLSON v. LEVI M. ROBBINS.

68 Me. 295

DAVIS TILLSON v. LEVI M. ROBBINS.

Supreme Judicial Court of Maine.

June 7, 1878

ON EXCEPTIONS by the defendant to the overruling of his demurrer to the declaration.

LIBEL in two counts, for words printed in a newspaper, the Rockland Opinion, September 15, 1876. The first count declares for a libel against the plaintiff as an individual, in these words " The Hurricane Vote. Again we have to chronicle most atrocious corruption, intimidation and fraud in the Hurricane island vote, for which Davis Tillson is without doubt responsible, as he was last year."

The second count declares for a " libel of and concerning the plaintiff in his business" of merchant and contractor in the same words with these added: " Hurricane island is all owned by Davis Tillson, an intense partisan and unscrupulous politician. It is leased to government and contains quarries from which is taken granite for public buildings. This granite is bought by government of Tillson, and is there cut by men who receive about $3.50 per day. On all expenditures Tillson has a gratuity of 15 per cent, for which he renders no equivalent, unless the lease of the island and its facilities be deemed such."

The declaration, omitting the first and formal part, alleges the publication in the " Rockland Opinion, containing therein the false, scandalous, defamatory and opprobrious matter following of and concerning the said Davis Tillson that is to say," and proceeds as follows:

" ‘ The Hurricane Vote. Again we have to chronicle most atrocious corruption, intimidation and fraud in the Hurricane island vote, [meaning the vote given at the election, September 11, 1876] for which Davis Tillson [meaning the plaintiff] is without doubt responsible, as he [meaning the plaintiff] was last year.’ Meaning and intending thereby to say and convey to the public mind the impression that the said Davis Tillson had been proved guilty a year ago of the crime of corruption, intimidation and fraud, and further meaning and insinuating thereby that said Davis Tillson, before the time of writing and publishing of the said libel, had been guilty of the base and atrocious crimes of corruption, intimidation and fraud, at the election, held on that island on the eleventh day of September, A. D. 1876, in which the inhabitants of said island, in the town of Vinalhaven, gave their votes for a member of congress, governor, a senator in the state legislature, county officers, and a representative to the legislature. And the said defendant thereafterward on the same day caused to be sent and delivered through the mail and otherwise the libel aforesaid," etc.

The second count is similar, in its innuendoes and in its want of averments and colloquium, to the first count.

The presiding justice overruled the defendant's demurrer to the declaration; and the defendant alleged exceptions.

A. P. Gould & J. E. Moore, for the defendant.

I. Unless the words set out as libelous are in themselves actionable without any reference to other matters, the declaration is bad. In such action there should be averment, colloquium and innuendo: averment, to make certain what is generally or doubtfully expressed; colloquium, to show that the words were in reference to the matter of the averment; innuendo, as explanatory of the subject matter, sufficiently expressed before, and of such matter only. Sturtevant v. Root, 27 N.H. 69, 73. Van Vechten v. Hopkins, 5 Johns 211, 219. Patterson v. Wilkinson, 55 Me. 42. Carter v. Andrews, 16 Pick. 1. York v. Johnson, 116 Mass. 482, 485, 486. Emery v. Prescott, 54 Me. 389, 392, and cases. Small v. Clewley, 60 Me. 262. Brown v. Brown, 14 Me. 317. Snell v. Snow, 13 Met. 278, 282.

The recital by way of innuendo that the defendant intended to charge the plaintiff with the crime of intimidating voters at a state or national election is nil, the declaration containing no averment of such election, nor that Hurricane island is a voting precinct, or within the jurisdiction of the United States.

Nor is there any colloquium that the words were used in reference to any such vote or election, if any had been averred.

The second count says the defendant did write and publish a certain " libel of and concerning the plaintiff, in his business aforesaid," but does not say that the words set out are of that character, but that the paper in which the libel was published " contained therein this false [etc.] matter, following," etc. It not being alleged that the words were spoken of and concerning the plaintiff's business, no innuendo can supply the defect. Clement v. Fisher, 7 Barn. & Cress. 459. 14 E. C. L. 209. Barnes v. Trundy, 31 Me. 321, 323, 324. Bloss v. Tobey, 2 Pick. 320, 321.

If words are actionable by reason of special damage, such damage must be averred and proved as laid. Barnes v. Trundy, 31 Me. 321, 324.

II. The words are not in themselves actionable. Those in the first count imply that the plaintiff was not guilty of corruption, intimidation and fraud, but that somebody else was, and that the plaintiff might have prevented it.

D. N. Mortland & O. P. Hicks, for the plaintiff.

BARROWS J.

The defendant's criticisms upon the writ to which he has demurred would be pertinent if the case were one of mere verbal slander. But, in respect to the supposed requirement that, in order to maintain an action for damages where no crime is imputed, special damage must be alleged and proved, a distinction has been long and uniformly maintained between mere words and written or printed slander. Holt's Law of Libel, First Am. Ed. 218-223. Much, which if only spoken might be passed by as idle blackguardism doing no discredit save to him who utters it, when invested with the dignity and malignity of print, is capable by reason of its permanent character and wide dissemination of inflicting serious injury.

The cases, ancient and modern, where this distinction has been regarded are numerous. A reference to a few of them will serve all the purposes of a more elaborate discussion.

Lord Holt says " scandalous matter is not necessary to make a libel. It is enough if the defendant induce an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous." Cropp v. Tilney, 3 Salk. 226.

To say of a man " he is a dishonest man," is not actionable without special damage alleged and proved; but to publish so, or to put it upon posts, is actionable. Austin v. Culpepper, Skin. 124.

In Villars v. Monsley, 2 Wils. 403, the court say: " There is a distinction between libels and words; a libel is punishable both criminally and by action, when speaking the words would not be punishable either way. For speaking the words rogue and rascal of any one an action will not lie; but if those words were written and published of any one an action will lie. If one man should say of another that he has the itch, without more, an action would not lie; but if he should write those words of another and publish them maliciously, as in the present case, no doubt but the action well lies."

In another case, where the defendant had applied the epithet " villain" to the plaintiff, in a letter to a third person, and the plaintiff, though alleging, failed to prove any special damage, the court ordered judgment for the plaintiff, expressing the opinion that " any words written and published, throwing contumely on the party, are actionable." Bell v. Stone, 1 Bos. & Pul. 331.

In one of Christian's notes to Blackstone mention is made of a case where a...