Dooling v. Budget Publishing Co.

10 N.E. 809, 144 Mass. 258, 1887 Mass. LEXIS 159

• Court: Massachusetts Supreme Judicial Court
• Decided: March 23, 1887
• Status: Published

Opinion

C. Allen, J..

The question is, whether the language used imports any personal reflection upon the plaintiff in the conduct of his business, or whether it is merely in disparagement of the dinner which he provided. Words relating merely to the quality of articles made, produced, furnished, or sold by a person, though false and malicious, are not actionable without special damage. For example, the condemnation of books, paintings, apd other works of art, music, architecture, and generally of the product of one’s labor, skill, or genius, may be unsparing, but it is not actionable without the averment and proof of special damage, unless it goes further, and attacks the individual. Gott v. Pulsifer, 122 Mass. 235. Swan v. Tappan, 5 Cush. 104. Tobias v. Harland, 4 Wend. 537. Western Counties Manure Co. v. Lawes Chemical Manure Co. L. R. 9 Ex. 218. Young v. Macrae, 3 B. & S. 264. Ingram v. Lawson, 6 Bing. N. C. 212. Disparagement of property may involve an imputation on personal character or conduct, and the question may be nice, in a particular case, whether or not the words extend so far as to be libellous, as in Bignell v. Buzzard, 3 H. & N. 217.

The old case of Fen v. Dixe, W. Jones, 444, is much in point. The plaintiff there was a brewer, and the defendant spoke of his beer in terms of disparagement at least as strong as those used by the present defendant in respect to the plaintiff’s dinner, wines, and cigars; but the action failed for want of proof of special damage.

In Evans v. Harlow, 5 Q. B. 624, 631,. Lord Denman, C. J., said: “ A tradesman offering goods for sale exposes himself to observations of this kind; and it is not by averring them to be @ false, scandalous, malicious, and defamatory,’ that the plaintiff can found a charge of libel upon them.” ■

In the present case there was no libel on the plaintiff, in the way of his business. Though the language used was somewhat strong, it amounts only to a condemnation of the dinner and its accompaniments. No lack of good faith, no violation of agreement, no promise that the dinner should be of a particular quality, no habit of providing dinners which the plaintiff knew to be bad, is charged, nor. even an excess of price beyond what the dinner was worth; but the charge was, in effect, simply that the plaintiff, being a caterer, on a single occasion, provided a very poor dinner, vile cigars, and bad wines. Such a charge is not actionable, without proof of special damage.

Judgment on the verdict.