Morasse v. Brochu

8 L.R.A. 524, 25 N.E. 74, 151 Mass. 567, 1890 Mass. LEXIS 268

• Court: Massachusetts Supreme Judicial Court
• Decided: June 20, 1890
• Status: Published

Opinion

C. Allen, J.

1. The defendant contends that there is no sufficient averment of special damages. The averment in respect to the plaintiff’s loss of practice as a physician is, that members of the church and other persons have refused to have transactions with him, or to employ him in his profession, whereby he has been deprived of the profits, income, and emoluments thereof. The only omission of any needful averment which is suggested is, that the names of the persons who have ceased or refused to employ the plaintiff should have been set out.

Where there is merely an accusation of immorality, in words which might be spoken of any one, whether having any particular occupation or not, it has often been held that a charge of special damages, from loss of custom or society, must include the names of those who have cut off from the plaintiff in consequence of the imputation. This rule has not been so strictly held in cases where the accusation has been made for the express purpose of injuring the plaintiff in his trade or profession, and has had that effect; and in various cases, and for differing reasons, the rule in such cases has been relaxed, and a general averment of loss of customers has been held sufficient. Evans v. Harries, 1 H. & N. 251. Riding v. Smith, 1 Ex. D. 91. Clarke v. Morgan, 38 L. T. (N. S.) 354. Hopwood v. Thorn, 8 C. B. 293, 308, 309, per V. Williams, J., interloc. Weiss v. Whittemore, 28 Mich. 366. Trenton Ins. Co. v. Perrine, 3 Zabr. 402, 415. See also Hargrave v. Le Breton, 4 Burr. 2422; Hartley v. Herring, 8 T. R. 130.

In this Commonwealth this question has not been decided. In Cook v. Cook, 100 Mass. 194, the charge was general, and had no relation to any particular occupation of the plaintiff, and there was no question of loss of custom or of society. In Fitzgerald v. Robinson, 112 Mass. 371, the averments were full, and no question arose.

In the present case there was a demurrer to the declaration. The practice act requires that in case of a demurrer the particulars in which the alleged defect consists shall be specially pointed out. Pub. Sts. c. 167, § 12. In view of this requirement, the defendant specially and at length assigned five different grounds of demurrer, but there was no intimation of an objection on the ground that the names of the persons who would not employ the plaintiff were omitted. If the demurrer had contained this ground of objection, the plaintiff might have applied for leave to amend. Moreover, the practice act provides that no averment need be made which the law does not require to be proved, and that the substantial facts may be stated without unnecessary verbiage; Pub. Sts. c. 167, § 2; and the court may in all cases order either party to file a statement of such particulars as may be necessary to give the other party and the court reasonable knowledge of the nature and grounds of the action or defence. Pub. Sts. c. 167, § 61. The demurrer having been overruled, no motion was made by the defendant for an order that the plaintiff be required to specify the names of persons referred to in the declaration. So far as the matter of pleading, therefore, is concerned, it must be considered that the defendant was content to go to trial without an averment of the names of these persons ; and his request, at the close of the evidence, for an instruction to the jury that there was no sufficient allegation of special damage to make the words actionable, came too late, even if otherwise it could be considered as the proper way to raise the objection.

■ It must now be taken, therefore, that there was a sufficient averment of special damages.

2. If there was a sufficient averment of special damages, then the question is, whether an imputation of the kind made by the defendant upon the plaintiff, when false, and when made for the express purpose of injuring the plaintiff in his profession, and when such injury is the probable and natural result of the speaking of the words, and when such injury actually follows, just as was intended by the defendant, will support an action by the plaintiff against the defendant.

It is sometimes said that it will not, unless the words are defamatory. But the better rule is, that such an imputation, whether defamatory of the plaintiff or not, will support an action under the circumstances above mentioned. There are all the elements of a wrongful act deliberately done for the purpose of working an injury, and actually working one, even though the words have no meaning which, strictly speaking, could be called defamatory. Riding v. Smith, 1 Ex. D. 91. Lynch v. Knight, 9 H. L. Cas. 577, 600, per Lord Wensleydale. Barley v. Walford, 9 Q. B. 197. Green v. Button, 2 C., M. & R. 707. Trenton Ins. Co. v. Perrine, 3 Zabr. 402. See also Odgers, Libel and Slander, 89, and at bottom of page 91, where the question is fully discussed. It may not be technically an action for slander, if the words are not defamatory ; but the name of the action is of no consequence. In Kelly v. Partington, 5 B. & Ad. 645, 648, Littledale, J. suggested the following illustration : “ Suppose a man had a relation of a penurious disposition, and a third person knowing that it would injure him in the opinion of that relation, tells the latter a generous act which the first has done, by which he induces the relation not to leave him money, would that be actionable ? ” And Sir John Campbell answers, “ If the words were spoken falsely with intent to injure, they would be actionable.” In Odgers, Libel and Slander, 90, the following illustration is given: “If in a small country town where political or religious feeling runs very high, I maliciously disseminate a report, false to my knowledge, that a certain tradesman is a radical or a dissenter, knowing that the result will be to drive away his customers, and intending and desiring that result, then, if such result follows, surely I am liable for damages in an action on the case, if not in an action of slander.” In such a case there is an intentional causing of temporal loss or damage to another, without justifiable cause, and with the malicious purpose to inflict it, which will sustain an action of tort. Walker v. Cronin, 107 Mass. 555. And under this doctrine, in the opinion of a majority of the court, the present action may well stand.

3. But even if the averment of special damages is to be regarded as insufficient for want of naming the persons who would not employ the plaintiff as a physician, the question remains, whether the words are actionable per se, as containing a defamatory imputation upon the plaintiff; or, rather, whether there was enough in them to warrant the judge in submitting them to the jury.

Words are held to be actionable per se, which convey an imputation upon one in the way of his profession or occupation, and in such case there need be no averment of special damages. The old phraseology of Comyn’s Digest, which has often been followed or repeated, is, that “ words not actionable in themselves are not actionable when spoken of one in an office, profession, or trade, unless they touch him in his office ” (Com. Dig., Action on the Case for Defamation, D. 27) ; and many cases turn upon the question whether words spoken of one who has a particular profession or trade touch him in it; that is, whether they have such a close reference to such profession or trade that it can be said that they are defamatory by means of an imputation upon him in that character, as, e. g., an imputation upon him as a clergyman, a physician, or a tradesman, distinctly from and independently of being an imputation upon him as an individual. Some of the cases have gone very far to negative such a construction. Thus, for example, it was said by Bayley, B., in Lumby Y. Allday, 1 Cr. & J. 301, that it was his opinion (for the time being) that the words must go to the length “ of shewing the want of some necessary qualification, or some misconduct in the office.” And in Ayre v. Craven, 2 A. & E. 2, words imputing adultery to a physician were held not actionable per se, and without special damage, there being nothing to show that the adultery was committed by him while acting as a physician, or in connection with his medical practice. These two cases are perhaps the most striking of any in that direction. But see also Pemberton v. Colls, 10 Q. B. 461, and Gallwey v. Marshall, 9 Exch. 294, for instances where imputations upon clergymen were held not to reflect upon them in their profession. The case of Ayre v. Craven has not escaped criticism and comment, both from the bar and the bench, though perhaps it has never been overruled. In Hopwood v. Thorn, 8 C. B. 293, Cockburn and E. James said in argument, “ Ayre v. Craven has confessedly gone to the very verge of absurdity.” In Gallwey v. Marshall, 9 Exch. 294, Willes said, in argument, “ The case of Ayre v. Craven is an extreme case”; to which Alderson, B. replied from the bench, “ There are certain professions, the proper exercise of which depends on morality; and except for the case of Ayre v. Craven, I should have thought that that of a physician was one of them.” p. 297. It may well be suggested that the doctrine of that and kindred cases has a distinct tendency to lower the estimation in which clergymen and physicians are naturally and properly held. At any rate, they do not correctly represent the law of Massachusetts. In Chaddoch v. Briggs, 13 Mass. 248, which was decided when drunkenness was not a crime in Massachusetts, and when the habits in respect to drinking intoxicating liquors were freer than at present, it was held that to charge a clergyman with a single act of drunkenness was actionable per se. The decision of course rested on the ground that it injured him in his profession, the court saying, “ a pure and even unsuspected moral character being necessary to their usefulness in the community.” That case has never since been questioned in this State, and it is inconsistent with the general doctrine that the words must impute either ignorance or want of skill, or some misconduct while actually performing the duties or functions of the profession or office.

In the present case, it must now he assumed that the jury found, under the instructions which were given to them, that the defendant falsely, and with a deliberate purpose and intent of injuring the plaintiff in his profession, and for the purpose of gratifying his ill will towards the plaintiff, spoke the words in question. These words did not merely instruct the congregation that the effect of a second marriage, under the circumstances which existed, was to excommunicate the plaintiff from the Catholic Church; but they proceeded to impute against the plaintiff that such marriage or such exconynunication should debar him from being employed as a physician in the parish, and that patients who employed the plaintiff as a physician could not in their sickness have the ministrations of the defendant as their priest. The question is, Does this imputation affect him, or, in the words of Comyn, touch him in his capacity as a physician ? It seems to be a palpable straining of language to say that it does not. It imports not only that the plaintiff was not in himself a suitable person for a Catholic community to employ as a physician, but that, if employed, the patients must lose the attendance of the priest. But the jury might well find that the plaintiff was a suitable person to be employed there as a physician, notwithstanding his marriage and its ecclesiastical consequences.

The defendant assumed to stand in a position of authority ; by virtue of this position he was able to exert a special influence upon his people; he assumed to assert and to exercise this influence; and his words amounted, in the opinion of the jury, to a plain departure from the proper exercise of such influence, and virtually to an instruction that the plaintiff was an unsuitable and improper person to be employed as a physician, and a direction not to employ him, on pain of losing caste in the church, and of losing the benefit of the defendant’s ministrations as priest if they should be sick. The words were also susceptible of the meaning that the plaintiff was an unfit man even to be met socially; and that the defendant would not sit at the same table with him. Under these circumstances, the court cannot lay down a rule that the words did not touch the plaintiff in his profession. According to the verdict of the jury, they were designed to touch him, and did touch him effectually, in his profession. 'The language of Parke, B., in Southee v. Denny, 1 Exch. 196, 202, 203, supports this view.

In the opinion of a majority of the court, the words might, therefore, properly be found by the jury to have been spoken of the plaintiff in respect to his profession as a physician, and they might properly be found to be defamatory and actionable without an averment of special damages. See, as supporting this result, Sanderson v. Caldwell, 45 N. Y. 398, 405, where the court formulates a rule which would include this case.

The minor questions in the case may be briefly disposed of.

If an averment of special damages was necessary, or if the words set forth were actionable per se, in either case the evidence of special damage was properly received.

The evidence of what the defendant said after the commencement of the action was competent upon the question of malice. Beals v. Thompson, 149 Mass. 405.

The judge properly refused to instruct the jury that the plaintiff could not recover by reason of a variance. ' Taking the testimony of the various witnesses, there was, from some one or other of them, evidence substantially in support of all the words .set forth in the declaration.

It was competent for the jury to find that the defendant spoke the words maliciously, for the purpose of injuring the plaintiff as a physician.

Exceptions overruled.