Gott v. Pulsifer

122 Mass. 235, 1877 Mass. LEXIS 105

• Court: Massachusetts Supreme Judicial Court
• Decided: March 7, 1877
• Status: Published

Opinion

Gray, C. J.

This action is not for a libel upon the plaintiff, but for publishing a false and malicious statement concerning his property, and could not be supported without allegation and' proof of special damage. Malachy v. Soper, 3 Bing. N. C. 371; S. C. 3 Scott, 723. Swan v. Tapp an, 5 Cush. 104. The special damage alleged was the loss of the sale of the plaintiff’s statue to Palmer. Evidence of the value of the statue as a scientific curiosity or for purposes of exhibition was therefore rightly rejected as immaterial.

The editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications for which no action can be maintained without proof of actual malice. Dibdin v. Swan, 1 Esp. 28. Carr v. Hood, 1 Campb. 355. Hexwood v. Harrison, L. R. 7 C. P. 606.

But, in order to constitute such malice, it is not necessary that there should be direct proof of an intention to injure the value of the property; such an intention may be inferred by the jury from false statements, exceeding the limits of fair and reasonable criticism, and recklessly uttered in disregard of the rights of those who might be affected by them. Malice in uttering false statements may consist either in a direct intention to injure another, or in a reckless disregard of his rights and of the consequences that may result to him. Commonwealth v. Bonner, 9 Met. 410. Moore v. Stevenson, 27 Conn. 14. Erie, C. J., in Hibbs v. Wilkinson, 1 F. & F. 608, 610; and in Paris v. Levy, 2 F. & F. 71, 74, and 9 C. B. (N. S.) 342, 350. Cockburn, C. J., in Morrison v. Belcher, 3 F. & F. 614, 620; in Hedley v. Barlow, 4 F. & F. 224, 231 ; and in Strauss v. Francis, 4 F. & F. 1107, 1114.

The only definition of malice, given by the learned judge who presided at the trial, was therefore erroneous, because it required the plaintiff to prove “ a disposition wilfully and purposely to injure the value of this statue,” as well as “ wanton disregard of the interest of the owner.” The jury, upon the evidence before them, and under the instructions given them, may have been of opinion that the defendants’ statements that the plaintiff’s statue was an “ ingenious humbug,” “ a sell” and “ a fraud, ’ were false, reckless and unjustifiable, and had the effect of injuring the plaintiff’s property, and caused him special damage; and may have returned their verdict for the defendants solely because they were not convinced that they intended such injury.

The ninth request for instructions distinctly called tie attention of the court to the necessity of a definition of the legal meaning of malice in this respect. As the instructions given were erroneous in this particular, and we cannot know that the error did not affect the verdict, the plaintiff is entitled to a new trial, in order that he may satisfy a jury, if he can, under proper instructions, that he has a good cause of action against the defendants. Exceptions sustained.