Dow v. Long , 190 Mass. 138 ( 1906 )

Sheldon, J.

The defendant argues that the first count of the plaintiff’s declaration fails to state any cause of action because the alleged defamatory matter is not libellous, and because it is not averred that the alleged libels were published “ concerning the plaintiff.”

The first count is somewhat inartificially drawn; but in our opinion it sufficiently appears that the first articles averred therein to have been published are set out merely by way of inducement, and that the libel relied upon is contained in the short article appearing at the end of this count. With reference to the last cause of demurrer relied upon, the declaration expressly avers that this alleged libel is published “of and concerning the plaintiff ” and his conduct in his office; and this is a sufficient averment that the publication was made of and concerning the plaintiff. Young v. Cook, 144 Mass. 38. Hurley v. Fall River Daily Herald Publishing Co. 138 Mass. 334. Chenery v. Goodrich, 98 Mass. 224. “ When the words are alleged to be spoken of the plaintiff, no innuendoes are necessary to apply them.” Devens, J. in Young v. Cook, ubi supra.

A more important question is whether the alleged publication is libellous when taken in connection with the previous averments of this count. These averments are in substance that the plaintiff was a member and chairman of the board of police of the city of Lowell; that one Robert E. Crowley was a' candidate for the office of superintendent of streets of said city; that such superintendent was chosen by the concurrent vote of the board of aldermen and the common council; that said Crowley had been elected to said office on the part of the board of aldermen, and the question of his election was pending in the common council; that the defendant then published the article stated in the count and headed: “ Send Crowley to City Farm,” and the shorter articles which immediately follow it. The count then avers that the defendant published the alleged libel “of and concerning the plaintiff, and of and concerning his aforesaid office, and of and concerning his conduct in his said office, for the purpose of procuring his removal from said office, and with reference to the candidacy and election of said Robert E. Crowley to said office of superintendent of streets as aforesaid, and with reference to the articles aforesaid.” The defendant does not argue that this alleged libel, construed in connection with the other publications averred, would not tend to subject the plaintiff to public ridicule and contempt and to injure seriously his reputation both as an individual and in his official capacity; and, unless the averments of the declaration show a sufficient occasion and justification for what the defendant is alleged to have done, this is enough to constitute a cause of action. Lovejoy v. Whitcomb, 174 Mass. 586. Haynes v. Clinton Printing Co. 169 Mass. 512. Call v. Hayes, 169 Mass. 586. Twombly v. Monroe, 136 Mass. 464. The defendant does not dispute this general principle, but rests his defence upon the ground that the declaration shows that the election of a superintendent of streets was pending in the city council of Lowell; that Robert E. Crowley was a candidate for this office; that the alleged libels were statements made in his newspaper with reference to that election, the fitness of Crowley for the office, and the action of the plaintiff in seeking to bring about Crowley’s election; and he contends that the matters discussed by him were of public interest and general concern in Lowell, and so were protected and cannot be made the ground of action. And it is true that comments fairly made with reference to the action and attitude concerning public matters of a person seeking or holding public office are not to be treated as libellous. Smith v. Higgins, 16 Gray, 251. Bodwell v. Osgood, 3 Pick. 379. Wason v. Walter, L. R. 4 Q. B. 73, 93, 94. And doubtless a more difficult question would be raised if this action had been brought by Crowley for the statements made concerning him in these alleged publications, although it is to be observed that even in such a case, as is pointed out by Holmes, J. in Burt v. Advertiser Newspaper Co. 154 Mass. 238, 242, it is criticism and not statement that is protected, and if one takes upon himself to allege facts otherwise libellous, “ he will not be_ privileged if those facts are not true.” See the cases there cited, pp. 243, 244. But this action is not brought by Crowley. The declaration charges that the defendant, after statements which import that Crowley was utterly unfit for the office which he sought, that he had endeavored to further every scheme which had been put forward “ to tap the city treasury,” and that the plaintiff sought Crowley’s election to increase his ability “to raid the treasury” and to put “additional power in the hands of the police-rum combine,” at the head of which stood the plaintiff, and after making what a jury might find were charges that this “ combine ” and the plaintiff were seeking to procure Crowley’s election by unfair means and perhaps by bribery, directly states that $5,000 had been placed in the hands of the plaintiff “ to be distributed judiciously for the election” of Crowley. It seems manifest to us that, whatever might be the findings of a jury, it cannot be said as matter of law that this count does not set forth a cause of action.

The second count may be considered more briefly; for the decision upon it involves only the general principles already stated. It is doubtless manifest that the words “ robbing the taxpayers ” do not necessarily import a charge of felony. Carter v. Andrews, 16 Pick. 1. The words are to be construed as they would be naturally and ordinarily intex’preted by the general reader. Goodrich v. Davis, 11 Met. 473, 481. The innuendo cannot extend the sense of the words beyond the natural import. Goodrich v. Davis, ubi supra. McCallum v. Lambie, 145 Mass. 234. Brettun v. Anthony, 103 Mass. 37. But this action is for libel, not slander, and it is immaterial whether or not participation in any criminal conduct is charged. Atwill v. Mackintosh, 120 Mass. 177. We think that the jury well might find that the defendant charged the plaintiff with being such a man that from his standpoint one who would unlawfully and improperly spend the public money was his ideal superintendent of streets, and that the plaintiff supported Crowley because be was such a man; and we cannot say that this is not an actionable libel. Haynes v. Clinton Printing Co. 169 Mass. 512. Bishop v. Journal Newspaper Co. 168 Mass. 327. Twombly v. Monroe, 136 Mass. 464.

For the reasons already stated the demurrer must also be overruled as to the third count.

Accordingly the judgment of the Superior Court must be reversed and the demurrer overruled.

So ordered.