Donaghue v. Gaffy

7 A. 552, 54 Conn. 257, 1886 Conn. LEXIS 54

Opinion

Pardee, J.

This is a complaint for libel. The issue was closed to the jury, and judgment rendered against the plaintiff as in case of nonsuit; he appeals. Upon the trial the plaintiff introduced evidence tending to prove that the defendant published of him a circular in words as follows:

“ To the Liquor Dealers of Hartford and vicinity: In order that you may be on your guard and protect yourselves against the base treachery of a concern you may be doing business with, I desire to state a few facts in regard to my experience with this firm. The concern I refer to is Donaghue Bros., consisting of William and Edward Donaghue. I have been in the habit of buying nearly all my goods of them for years, but because I quit buying of them they went to the Middletown Savings Bank, of which I rented my place, and offered ten dollars more a month than I was paying, and, after getting their lease of the premises, served a notice on me to immediately vacate. Considering the mean and unfair manner in which this firm have treated me, I have wondered to myself whose turn will come next, should anybody feel like exercising their right to buy of whom they like. I believe it is time to speak out and warn the trade against a firm who, because we buy of somebody else, subject ourselves to the same treatment I have received. The firm of Donaghue Bros, are not worthy of our support, being guilty of foul and unfair dealings to ‘ get square,’ as they say, with one who exercises that right that every honest man has who pays his bills, to trade where he likes, and I sincerely believe they deserve that kind of warfare recently inaugurated in a little green isle across the sea, known as ‘boycotting,’ and request those who believe in the fair thing, as between man and man, to give their support to some other house. For further particulars call on the undersigned. J. II. Gaffy.”

The plaintiff also offered evidence tending to prove that, at the tinte of said publication, he was engaged in the wholesale liquor business in Hartford, with his brother Edward, as co-partners, under the firm name of Donague Bros., and claimed from that evidence that the libel was published as well of and concerning the plaintiff as of and concerning the firm. The plaintiff then offered to prove injury and damage to his reputation and feelings caused by the publication, to which evidence the defendant objected, on the ground that the circular, if a libel, was not a libel against the plaintiff as an individual; and second, because the complaint contained no allegation of injury to the feelings and reputation of the plaintiff as an individual, nor any allegation as to special damage. The court sustained the objection and refused to admit the evidence, and the plaintiff excepted. The plaintiff claimed that the circular was libelous per se, and that he might recover in the suit without proof of special damage ; but the court held otherwise.

The plaintiff, at his request, was permitted to offer evidence of any damage caused by the circular to the business of the firm, or to his interest as a partner thereof; but, after permission given, he did not offer any such evidence. The defendant moved for a nonsuit, because no evidence of any damage had been given, and no special damage had been shown. The plaintiff objected thereto, and claimed that he had a right to have the question submitted to the jury, whether, if they found the circular to have been published as alleged, it had a tendency to hold him up to scorn and ridicule, and throw a contempt upon him, which might affect his reputation and comfort. But the court held otherwise, and gave judgment of nonsuit against the plaintiff, on the ground that no damage had been proved. To all of which the plaintiff excepted.

The plaintiff in his brief claims that there are two errors in the rulings of the court—1st, in refusing to allow the jury to determine whether the publication is or is not libelous ; 2d, in rejecting evidence as to injury to his reputation and feelings, and in holding that the circular is not libelous per se. As to the first. In civil causes for libel there is a substantial agreement in the decisions of the courts that the court may be required to pass upon the effect of the language of a publication by a demurrer to the declaration as a whole, or to a count in particular; also, when the question is whether the verdict is contrary to the evidence. Otherwise, in some states the rule is that the court shall determine the question as to libel or no libel. Hunt v. Bennett, 19 N. York, 173; Pittock v. O’Neil, 63 Penn. St., 253; Pugh v. McCarty, 44 Geo., 383; Gabe v. McGuiniss, 68 Ind., 538; Gregory v. Atkins, 42 Verm., 237; Gottbehurt v. Hubacheck, 36 Wis., 515. In others the jury. Shattuck v. Allen, 4 Gray, 540; Van Vactor v. Walkup, 46 Cal., 124; State v. Goold, 62 Maine, 509.

Of course, it is for the jury to say whether or not there has been a publication referring to the plaintiff, whether or not it is malicious and false, and whether or not the sense and meaning are as charged. But if the publication is expressed in terms so clear and unambiguous that no circumstances are required to make it clearer than it is of itself, we think the better rule is that the question of libel or no libel is one of law to be determined by the court, and we think we are not concluded to the contrary by the decisions of this court. The case of Twombly v. Monroe, 136 Mass., 464, seems to recognize a possibility that questions of fact may be so entirely absent from a cause that the question of libel or not shall remain one purely of law to be disposed of by the court as by a nonsuit or its equivalent; the court saying: “We are satisfied with the rule that at the trial of civil actions against libel it is only when the court can say that the publication is not reasonably capable of any defamatory meaning, and cannot reasonably be understood in any defamatory sense, that the court can rule, as matter of law, that the publication is not libelous, or withdraw the case from the jury, or order a verdict for the defendant.” In the jurisdictions in which the question is submitted to the jury in the first instance, it often comes upon motion in arrest or other like form to be reviewed and re-determined by the court of last resort as a pure question of law. It would seem to be better, therefore, that it should be so treated from the beginning, and thus avoid a possible unseemly result, namely, the submission of a question of law to the jury and a reversal of their determination thereon by the court. For instance, in England, in Parmeter v. Coupland, 6 Mees. & Wels., 105, the judge, after telling the jury what in point pf law constituted a libel, left it to them to say whether the publications in question were calculated to be injurious to the character of the plaintiff. The jury having found a verdict for the defendants, the Court of Exchequer set it aside because the jury had erred upon that point. In Mulligan v. Cole, L. R., 10 Q. B., 549, a civil suit for libel, the judge directed a nonsuit upon the ground that the publication was not capable of the defamatory meaning attributed by the innuendo. It was held that the nonsuit was properly granted, Mellok, J., saying of the publication : “ I cannot help thinking that, to an ordinary person, it would convey no more than the legitimate information, and that no such defamatory meaning as that imputed by the innuendo, nor any other defamatory meaning, was intended to be expressed.” In Capital & Counties Bank v. Henty, 5 C. P. Div., 514, the question of libel or no libel was left to the jury; they failed to agree, and were discharged. On motion to enter judgment for the defendants, it was held by the Common Pleas Division that the publication was susceptible of the meaning alleged, that there was evidence to support the innuendo and also of express malice, and that the case must go again to the jury. On appeal, it was held in the Court of Appeal, reversing the decision of the court below,- “ that there was no evidence that the circular was defamatory in either a primary or a secondary sense, and that, even if there was any such evidence, the circular was issued on a privileged occasion, and there was no evidence of express malice.” On appeal to the House of Lords, L. R., 7 Appeal Cases, 741, it was held, affirming the decision of the Court of Appeal, “ that in their natural meaning the words were not libelous; that the inference suggested by the innuendo was not the inference which reasonable persons would draw; that the onus lay on the hank to show that the circular had a libelous tendency; that the evidence, consisting of the circumstances attending the publication, faded to show it; that there was no ease to go to the jury; and that the defendants were entitled to judgment.”

As to the second point. This court has defined a libel as being a false and malicious publication of a person which exposes him to public ridicule, hatred or contempt, or hinders virtuous men from associating with him. This publication is by a retail seller concerning wholesale sellers of liquor. It charges that the plaintiff, moved to anger because the defendant ceased to be a purchaser from him and his partner, overbid him in the matter of a lease, and compelled his removal. The sting of the publication is that this act was born of a desire on the part of the plaintiff rather to get the defendant out of, than to get himself into, a particular place of business. But to overbid is permissible in law—permissible even when the motive is to supplant another in the possession of an advantageous location and an established run of custom. Of course these acts fall far short of the requirements of the golden rule, as do many others in the heat of competition in trade. The publication is a hostile comment upon the manner in which the plaintiff used, within the pale of the law, the power inseparable from the possession of money; it is a declaration that, in his eagerness to accumulate, he disregards the interests of others. The public will read the circular and disapprove of the plaintiff’s methods in business, but it does not impute to him any act which will expose him to their hatred or contempt, or will cause them to separate themselves from him, in the sense or to the degree required by the law of libel. In the absence of special damage he has no cause of action.

There is no error in the judgment complained of.

In this opinion the other judges concurred.