Elmer v. Fessenden , 151 Mass. 359 ( 1890 )

Holmes, J.

1. It was a part of the plaintiff’s case' that the cause of his workmen’s leaving his employment was the defendant’s false story. If, as may be assumed, the excluded testimony would have shown that the woi’kmen when they left gave as their reason to the superintendent that the defendant had told them that the board of health reported arsenic in the silk, the evidence was admissible to show that their belief in the presence of poison was their reason in fact. Lund v. Tyngsborough, 9 Cush. 36, 41, 43. Aveson v. Kinnaird, 6 East, 188, 193. Hadley v. Carter, 8 N. H. 40, 43. United States v. Penn, 13 Bankr. Reg. 464, 467. We cannot follow the ruling at nisi prius in Tilk v. Parsons, 2 C. & P. 201, that the testimony of the persons concerned is the only evidence to prove their motives. We rather agree with Mr. Starkie, that such declarations made with no apparent motive for misstatement may be better evidence of the maker’s state of mind at the time, than the subsequent testimony of the lame persons. Stark Ev. (10th Am. ed.) 89.

As a rule such declarations are not evidence of the past facts which they may recite. The cases in which they have been admitted to prove the cause of a wound or injury, when the declarations were made at the time, or immediately after the event, if not exceptions to the general rule, at least mark the limit of admissibility. Commonwealth v. Hackett, 2 Allen, 136, 140. Commonwealth v. M' Pike, 3 Cush. 181, 184. Insurance Co. v. Mosley, 8 Wall. 397. The excluded testimony was not competent to prove that the defendant did tell the workmen the story. As to that, it was mere hearsay, and was not within the scope of the special reasons which led to the decisions last cited. Roosa v. Boston Loan Co. 132 Mass. 439. Chapin v. Marlborough, 9 Gray, 244. Bacon v. Charlton, 7 Cush. 581, 586. Aveson v. Kinnaird, 6 East, 188. People v. Thornton, 74 Cal. 482, 486. It is admitted, however, that there was independent testimony that the defendant spoke to the workmen, and therefore the exceptions must' be sustained.

2. It is argued that the defendant was answerable for the repetition of such a story as this, on the ground that any one who heard it was morally bound to repeat it to the workmen. The general rule, that a man is not liable for a third person’s actionable and unauthorized repetition of his slander, is settled. Hastings v. Stetson, 126 Mass. 329, 331. Shurtleff v. Parker, 130 Mass. 293, 296. If the repetition is privileged-, the question becomes somewhat different. It is true that the fact that the sufferer has no action against one person is not a sufficient reason for giving him one against another, even if otherwise he is remediless. But the case is withdrawn from the principle applied in many instances, that the law will look no further back than to the wrongdoer who is the proximate cause of the consequence complained of. Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49. We need not now decide that, when the original slander was uttered under such circumstances that the privileged repetition manifestly was to be expected, the damage caused by the repetition could not be recovered for to the same extent as if the defendant had repeated the slander himself. Compare Derry v. Handley, 16 L. T. (N. S.) 263; Parkins v. Scott, 1 H. & C. 153 ; Keenholts v. Becker, 3 Denio, 346, 352; Terwilliger v. Wands, 17 N. Y. 54, 59; Fowles v. Bowen, 30 N. Y. 20, 22; Titus v. Sumner, 44 N. Y. 266; Bassell v. Elmore, 48 N. Y. 561.

In the ease before us, it did not appear that the repetition was privileged. Assuming that the story heard by Anna M. Brackett was the one set in motion by the defendant, there was no evidence as to how it came from him to her. He may have uttered it to a stranger, and it may have passed through twenty mouths before it reached the plaintiff’s workmen. We do not know whether those who repeated it believed it, or whether any one of them made it in pursuance of a supposed duty, or, if a stranger and a volunteer under any circumstances could make out a ease of privilege, whether such circumstances existed. See Shurtleff v. Parker, 130 Mass. 293; Joannes v. Bennett, 5 Allen, 169, 171; Krebs v. Oliver, 12 Gray, 239, 243 ; Waller v. Loch, 7 Q. B. D. 619, 621; Davies v. Snead, L. R. 5 Q. B. 608, 611. It cannot be contended that any one who heard the story was under such a moral obligation to repeat it broadcast without further inquiry, that the defendant must be taken to have contemplated and authorized the repetition until at last it reached the plaintiff’s workmen.

Exceptions sustained.