Craig v. Proctor , 229 Mass. 339 ( 1918 )

Braley, J.

The jury could have found that the words, “Why wouldn’t she have attractive gowns since two men are buying them for her,” and “Allan Craig buys them for her as well as her husband,” were uttered and published concerning the plaintiff Hartford, a married woman living with her husband, and of the plaintiff Craig, a married man. Hanson v. Globe Newspaper Co. 159 Mass. 293, 294. If published in writing or in print, the words which tended to expose the plaintiffs to aversion and disgrace, and to disseminate an evil opinion of them in the community. would be libellous and actionable without evidence of special damages. Miller v. Butler, 6 Cush. 71. Twombly v. Munroe, 136 Mass. 464. Loker v. Campbell, 163 Mass. 242. Gates v. New York Recorder Co. 155 N. Y. 228. But in oral defamation, unless the falsely spoken words impute such conduct as shows the commission of a criminal offence for which, if true, he may be prosecuted, or charge that he is suffering from some contagious disease which, if known, would bar him from society, or that he is an unfit person to perform the duties of the employment or office exercised or held by him for profit, or that he is wanting in integrity in discharge of the duties of his employment or office, or unless the words cause him to be prejudiced in his profession or trade, the plaintiff must allege special damages resulting from the act complained of or the declaration is demurrable Miller v. Parish, 8 Pick. 384, 385. Bunnell v. Fiske, 11 Met. 552. Allen v. Hillman, 12 Pick. 101, 104. Kenney v. McLaughlin, 5 Gray, 3, 5. Golderman v. Stearns, 7 Gray, 181, 182. Fitzgerald v. Robinson, 112 Mass. 371. Adams v. Stone, 131 Mass. 433. Billings v. Fairbanks, 139 Mass. 66. Morasse v. Brochu, 151 Mass. 567. Doyle v. Kirby, 184 Mass. 409. Pollard v. Lyon, 91 U. S. 225. Onslow v. Horne, 2 Wm. Bl. 750; S. C. 3 Wils. 177.

By special damages is meant damages which are the natural but not the necessary result of the alleged wrong, and hence such damages do not follow by implication of law upon proof of the defamatory words. Doyle v. Kirby, 184 Mass. 409, 411. Ratcliffe v. Evans, [1892] 2 Q. B. 524, 528.

The words declared on cannot be enlarged in meaning by the innuendo. While inferentially imputing censurable or indiscreet conduct because of the marital status of the parties referred to, they are insufficient to substantiate a charge of adultery. Lecherous thoughts or desires are not crime. Goodrich v. Davis, 11 Met. 473, 481. York v. Johnson, 116 Mass. 482. Adams v. Stone, 131 Mass. 433. Sillars v. Collier, 151 Mass. 50.

Inasmuch as the words are not actionable of themselves, the nature of the alleged wrong by which the plaintiffs have suffered the loss of some material or substantial advantage enjoyed or possessed must be specifically pleaded. The action as thus defined may not be technically an action for slander, but this is of no importance. Cook v. Cook, 100 Mass. 194. Fitzgerald v. Robinson, 112 Mass. 371, 381. Morasse v. Brochu, 151 Mass. 567, 574. May v. Wood, 172 Mass. 11, 13. The allegations in the first case, that the plaintiff being engaged in business as a manufacturer has had his “business relations with persons who had theretofore held him in good esteem . . . destroyed and disrupted; that his credit was damaged; that persons who had theretofore done business with him ceased to do so” because “they did not care to have business relations with a man of such depraved and vicious character,” are amply pleaded unless the names of the persons who severed their business, relations with the plaintiff should have been stated. The court in Morasse v. Brochu, 151 Mass. 567, 572, speaking through Mr. Justice Charles Allen, said: “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. LeBreton, 4 Burr. 2422. Hartley v. Herring, 8 T. R. 130.” We are of opinion that the present case comes within the rule that the averments of loss of trade and of financial credit are sufficient under our system of procedure. The defendant, if she is apprehensive of being embarrassed in making her defence, can move for specifications, and the court can order the plaintiff to furnish names, dates and particulars. R. L. c. 173, § 68. Nickerson v. Glines, 220 Mass. 333.

But for reasons previously stated the allegations in the second case that the defendant intended falsely and maliciously to “ charge the plaintiff with being a woman of immoral character” do not impute the commission of any criminal offence either at common law or by statute. The averments therefore of loss of reputation, the alienation of friends who shunned her society, the suffering of mental anguish and of consequent physical illness are descriptive only of general and not of special damages. Markham v. Russell, 12 Allen, 573, 575. Chesley v. Tompson, 137 Mass. 136. Finger v. Pollack, 188 Mass. 208. Garrison v. Sun Printing & Publishing Association, 207 N. Y. 1. Allsop v. Allsop, 5 H. & N. 534. The result is that in the first case the judgment is reversed and the demurrer overruled, but in the second case the judgment for the defendant is affirmed.

So ordered.