59 Mass. 104 - Swan v. Tappan — 59 Mass. 104

William D. Swan vs. Charles Tappan. No action can be maintained by an author for a publication disparaging his works,. in which he has a copyright, without an allegation and proof of special damage. If the plaintiff, in an action on the case for publishing disparaging statements concerning his goods, whereby he has sustained special damage, proves that the publication is false in any material respect, and that he has sustained any special damage therefrom, such proof makes a prima, facie case, and malice is to be presumed. If the defendant then proves, that the publication was honestly made by him, believing it to be true; and that there was a reasonable occasion therefor, in the conduct of his own affairs, which fairly warranted the publication; such proof renders the publication privileged, and constitutes a good defence to the action, unless the plaintiff can show malice in fact, which is a question for the jury. This was an action on the case, tried before Wilde, J., for an alleged libellous publication by the defendant, reflecting injuriously on certain books of which the plaintiff was the author and proprietor. The declaration contained four counts, setting forth in substance, that the plaintiff was the author and proprietor of certain books, and the proprietor of the copyrights thereof, which were of great value, the books being of great utility, and held in great esteem; that he had incurred great expense in preparing large editions of these books for sale, and in procuring them to be introduced into schools; and that he had large quantities of them on hand, and was endeavoring by his agents to sell the same and to procure their introduction into schools, by showing, among other things, that they had been ordered by the proper authorities to be used. in the public schools in divers cities and towns in this commonwealth and elsewhere; but that the defendant, knowing the premises, to injure the plaintiff, and prevent the sale of his books, and to cause it to be believed that the use of the plaintiff’s said books had been ordered by the school committee of Worcester, in this commonwealth, to be discontinued in the public schools in that town, on account of the dissatisfaction of the teachers of said schools, falsely, wickedly, and maliciously did compose, print, and publish of and concerning the plaintiff’s said books, a certain false, scandalous, malicious, and defamatory libel in the words and figures following: — “ Copy of a Letter from Reo. Messrs. Sweetser and Smith, Members of the School Com mittee, Worcester, Mass. “ Worcester, Aug. 10, 1847. Charles Tappan, Esq. Dear Sir, —In reply to your letter respecting the use of reading books in our schools, the following statements will be sufficient. About two years ago, Swan’s books were introduced into our schools. Very soon some of the teachers became dissatisfied with the books. The subject was brought up in the meetings of the board, and after discussion, committed. The report of the committee was in favor of introducing Mr. William Russell’s books in all the schools, excepting the infant and the lowest class in the primary school. The decision of the board was nearly unanimous in favor of the report; and we do not think it would be possible to get a vote here to introduce Swan’s readers again. They may perhaps be continued in the lowest classes ; but in the higher grades, Russell’s are used, and also in the English and Classical High School. The action of our board is the best commendation that can come from this place in relation to the books. Very truly yours, S. Sweet bee, George P. Smith. Of the School Committee.” The declaration, in all the counts, concluded as follows: — “ By means of the committing of which said grievances, the plaintiff hath been and is greatly injured, the sales of his said books, and their introduction into the public and private schools of this commonwealth and in other states, greatly diminished, retarded, hindered, prevented and made more difficult and expensive, and the said books have been brought into discredit with and amongst the citizens of .this commonwealth, school committees, teachers of schools and other persons, and the value of the several copyrights thereof has been and is greatly impaired and diminished, and the plaintiff hath been and is, by means of the premises, otherwise greatly injured and damnified.” The defendant objected to the sufficiency of the declaration, and contended that it disclosed no legal cause of action. This objection being overruled for the purposes of the trial, the plaintiff then introduced evidence to prove, that he was the proprietor of the copyrights of the several books mentioned in his declaration; that the defendant published the circular or letter set out therein; that one or more of the statements in the letter were not true; and that there was a falling off in the sales of the plaintiff’s books in the years 1847 and 1848. The defendant thereupon contended, that as the words set forth as libellous were not'in themselves actionable, the action could not be maintained without an allegation and proof of special damage. This objection was also overruled. The defendant, in the course of the trial, contended that the plaintiff could not, under his writ and declaration, give any evidence of damages sustained by him, because no specific damage, nor any instance in which he sustained damage, was set forth in the declaration. This objection was overruled, and the plaintiff was allowed, among other things, to give evidence to the jury, that the number of books printed by persons with whom the plaintiff had a contract, by which he was to receive a certain sum on every copy printed, in the year ending August 1st, 1848, was several thousand copies less than in the previous year ending August 1st, 1847, and that this diminution was caused by the publication of the defendant. The defendant, having filed a proper specification of defence, introduced evidence, that he received the letter alleged to be libellous from Sweetser and Smith, whose names purported to be signed to it; that all the statements contained therein were true, excepting that relating to the use of Russell’s books; and that as soon as this error was known to Sweetser and Smith, they sent a correction of it to the plaintiff’s agents, and caused one to be published in the New England Puritan, a newspaper printed at Boston, and also requested the defendant to suppress the circular, or letter, and that he wrote them he would do so; and there was no evidence of any issue or publication of the circular by the defendant after that time. The defendant then contended, that the question of malice was one to be submitted to the jury; and that the publication of the letter by him was not malicious, provided it was done in good faith, in the ordinary course of his business, and in the reasonable belief that all the statements contained in it were true. But the judge ruled, that if any one of the material statements contained in the letter was untrue, the publication of it by the defendant was in law malicious, and the question of malice was not one to be determined by the jury; and he instructed the jury, that if the defendant received the letter alleged to be libellous from Sweetser and Smith, and believed the same to be the truth and nothing but the truth, and had reasonable cause for such belief, and published the letter innocently, and in the ordinary course of his business, yet that he was responsible if any part of it was false, and that in such case the law implied malice. Other exceptions were suggested, which, in consequence of the view taken of the case by the court, became immaterial. The jury returned a verdict for the plaintiff, with $117.83 damages. If the action cannot be maintained on the declaration, or if the question of malice was for the jury, the plaintiff is to become nonsuit. If any of the other exceptions are sustained, there is to be a new trial; if otherwise, judgment is to be rendered on the verdict. P. Merrick and C. T. Russell, for the defendant. G. T. Curtis and II. Ritchie, for the plaintiff. 1. There must be a remedy for every unjustifiable invasion of right. The plaintiff’s copyright in his books is an incorporeal right of great value. The laws of the United States, which protect against infringements of copyright, do not annex penalties or provide remedies for all the injuries that the owners of copyrights may sustain. But the common law will give an action on the case for a false publication whereby the sale of a book is diminished. The declaration was specific enough to give the plaintiff notice of the cause of action; this being an injury to an incorporeal right could not be specifically set forth. And the damage proved was as specific, as the nature of the case would admit of. The cases relied on by the defendant were all cases of injury to mere chattels, of which the sale only was affected, and therefore specific damage could be proved. But this case is like the case of a libel on one in the way of his business or profession. Its tendency is not merely to diminish the sale of the books, but to injure the plaintiff’s reputation as an author and publisher, and cut him off from this general source of profit. Heriot v. Stewart, 1 Esp. R. 437; Dibdin v. Swan, 1 Esp. R. 27; Tabart v. Tipper, 1 Camp. 350; Gathercole v. Miall, 15 M. & W. 319, 333; 1 Stark. Sland. 113; Hartley v. Herring, 8 T. R. 130; Hargrave v. Le Breton, 4 Burr. 2422; Ingram v. Lawson, 5 Bing. N C. 66; S. C. 6 Bing. N. C. 212. 2. The plaintiff was not bound to prove express malice. Commonwealth v. Bonner, 9 Met. 410; 1 Stark, on Sland. 189, 190, 193; Bradley v. Heath, 12 Pick. 163. — Fletcher, J. (majority) The opinion was delivered at the March term, 1850. Fletcher, J. The first ground taken by the defendant is, that there is no legal cause of action set out in the declaration. This question, it would seem, might have been more properly raised by a demurrer, or in arrest of judgment, but it was made at the trial and was ruled upon, and is presented by the report. To settle this question, it is necessary to understand correctly what is really the grievance complained of in the declaration. There is clearly no libel set out of and concerning the plaintiff personally, or of and concerning him in his trade, business, or profession, or touching his character in any way whatever. The words, therefore, are manifestly not of themselves actionable. The libel is alleged to be of and concerning the plaintiff’s books, and of and concerning the plaintiff’s books and nothing else. The action, therefore, whatever it may be called, is in fact a special action on the case for disparaging the plaintiff’s books. Now the gist of such an action, and the only ground on which it can be maintained, is special damage, which must be distinctly and.precisely set out in the declaration, and established by the proof. In the case of Tobias v. Holland, 4 Wend. 537, which was an action for words spoken of the quality of articles made by the plaintiff it was maintained in defence that the words were not actionable in themselves, and that the plaintiff could not recover, as for special damage, the same not being alleged with sufficient certainty. The judge, in delivering the opinion of the court, says: “ Special damages are not so alleged in the declaration, that proof of them could be received on the trial. The general allegation of the loss of customers is not sufficient to show a particular injury. It appears to me, that when words are spoken not of the trader or manufacturer, but of the quality of the articles he 'makes or deals in, to render them actionable, per se, they must import that the plaintiff is guilty of cheating or malpractice in making or vending them.” In the above case, the words not being actionable in themselves and no special damage being alleged, judgment was rendered for the defendant on general demurrer to the declaration. So in the case of Todd v. Hastings, 2 Saund. 307 a, in a note. After speaking of words not actionable in themselves, it is said: “ But if he avers that he has sustained special damage by reason of the words, as if the plaintiff, in the principal case, had shown that he had lost some particular customers byname, the declaration would have been good on account of such special dl. mage.” So in the case of Ingram v. Lawson, 6 Bing. N. C. 212, Bosanquet, J., says: “The substantial question for the court is, whether the publication was a libel on the plaintiff in his business as a master mariner and ship-owner, or merely amounted to a disparagement of the qualities of his ship, if it were merely the latter, then, as there is no allegation of special damage, nothing could be recovered, judgment must be arrested, and it would be immaterial to consider the other points.” The other judges fully agreed in this doctrine, as tó disparagement of property merely, but it was held, that the publication was a personal libel on the plaintiff. This case fully establishes the doctrine, that an action cannot be maintained for a publication merely disparaging the plaintiff’s goods or property, unless there is an allegation of special damage. In the case under consideration, the publication is alleged to be of and concerning the plaintiff’s books. It is not alleged to be nor is it of or concerning the plaintiff personally, in his business or profession as an author or publisher of books, nor of him personally in any way, nor is it alleged to contain nor does it contain any im utation upon the plaintiff’s character in any respect. No action, therefore, can be maintained upon it but on the ground of its being a disparagement of the plaintiff’s books, and to maintain the action on that ground there must be an allegation of special damage; and there being no such allegation, there is no sufficient cause of action set out in the declaration. There is one other ground of the defence, upon which it may be desirable that the opinion of the court should be expressed. The defendant contended, that the question of malice was one to be submitted to the jury, and that the plaintiff must prove malice in fact. But the court ruled that the question of malice was not one to be determined by the jury. The general principles of the law, as bearing upon this subject, are stated by Parke, B., in the case of Toogood v. Spyring, 4 Tyrwh. 582, 595, as follows : “ In general, an action lies for the malicious publication of statements which are false in fact and injurious to the character of another (within the well known limits as to verbal slander,) and the law considers such publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence, depending on the absence of actual malice. If fairly-warranted by any' reasonable occasion, or exigency, and honestly made, such communications are protected for the common concern and welfare of society, and the law has not restricted the right to make them within any narrower limits.” Applying these principles to the facts of the present case, and it will stand thus: If the plaintiff can show that the publication was false in any material respect, and can also show special damage, done to himself, by means of it, that will make a prima, facie case for the plaintiff, and as standing thus malice would be presumed. But if the defendant can show that the publication was honestly made by him believing it to be true, and that there was a reasonable occasion or exigency in the conduct of his own affairs, in matters where his interest was concerned, which fairly warranted the publication, such proof would rebut the presumption of malice, and bring the publication within the class of privileged publications, and form a good defence to the action, unless the plaintiff can show express malice, or malice in fact, which will of course be a question for the jury. There are some other questions stated in the report, but which it is not necessary to consider. The exceptions taken by the defendant, as to the sufficiency of the declaration, and as to the question of malice, being sustained by the court, the verdict must be set aside and a nonsuit entered.