for the defendants, gave evidence to the effect that the defendants did not know when they circulated and sold the book in question that it contained the passage complained of. He stated that the books which they circulated were so numerous that it was impossible in the ordinary course of business to have them all read, and that they were guided in their selection of books by the reputation of the publishers and the demand for the books. He said in cross-examination that there was no one else in the establishment besides himself and his co-director who exercised any kind of supervision over the books; that they did not keep a reader or anything of that sort; that they had had books on one or two occasions which contained libels; that that would occur from time to time; that they had had no action brought against them for libel before the present action; and that it was cheaper for them to run an occasional risk of an action than to have a reader. The learned judge, in summing up, in substance directed the jury to consider whether, having regard to the above-mentioned evidence the defendants had used due care in the management of their business. The jury found a verdict for the plaintiff, damages £100.

The defendants applied for judgment or a new trial on the ground that there was no evidence on which a verdict could be found or judgment entered for the plaintiff, and also on the grounds that the judge insufficiently directed the jury on the question what amounted in law to the publication of a libel, and on the question of the burden of proof as to publication and of the duty of the defendants and their alleged negligence, and that the verdict was against the weight of the evidence.

Asquith, Q. C., ana Scrutton (McCall, Q. C., with them) for the defendants. . . . The question, therefore, is whether the proprietors of a library, such as the defendants', who in the ordinary course of business lend or sell a book which contains a libel, in ignorance that it contains a libel, can be said to publish the libel. The merely accidental circulation of a libel by the innocent transmission of a document containing it, as, for instance, by a carrier or messenger, does not amount to a publication of it. At any rate, it does not amount to publication, unless it can reasonably be said that the person so transmitting the document ought to have known or suspected that it contained a libel. . . .

Cyril Dodd, Q. C., and Bassett Hopkins, for the plaintiff. The case of Emmons v. Pottle, 16 Q. B. D. 354, introduced an exception from the general law on the subject which is not applicable to the present case. It is submitted that the result of the authorities prior to that case clearly is to show that the sale of a book containing a libel in the ordinary course of business would be a publication of the libel, although the vendor did not know that the book contained the

ROMER, L. J. The law of libel is in some respects a very hard one. In the remarks which I am about to make I propose to deal only with communications which are not privileged. For many years it has been well settled law that a man who publishes a libel is liable to an action, although he is really innocent in the matter, and guilty of no negligence. That rule has been so long established as to be incapable of being altered or modified, and the Courts, in endeavouring to mitigate the hardship resulting from many cases, have only been able to do so by holding that, under the circumstances of cases before them, there had been no publication of the libel by the defendant. The result, in my opinion, has been that the decisions on the subject have not been altogether logical or satisfactory on principle. The decisions in some of the earlier cases with which the Courts had to deal are easy to understand. Those were cases in which mere carriers of documents containing libels, who had nothing to do with and were ignorant of the contents of what they carried, have been held not to have published libels. Then we have the case of Emmons v. Pottle, in which vendors of newspapers in the ordinary course of their business sold a newspaper which contained a libel. It was clear that selling a document which contained a libel was prima facie a publication of it, but the Court there held that there was no publication of the libel under the circumstances which appeared from the special findings of the jury, those findings being (1) that the defendants did not know that the newspapers at the time they sold them contained libels on the plaintiff; (2) that it was not negligence on the defendants' part that they did not know that there was any libel in the newspapers; and (3) that the defendants did not know that the newspaper was of such a character that it was likely to contain libellous matter, nor ought they to have known so. Lord ESHER, M. R., in this Court, was of opinion that, though the vendors of the newspapers, when they sold them, were prima facie publishers of the libel, yet, when the special findings of the jury were looked at, the result was that there was no publication of the libel by the defendants. BOWEN, L. J., put his judgment on the ground that the vendors of the newspapers in that case were really only in the same position as an ordinary carrier of a work containing a libel. The decision in that case, in my opinion, worked substantial justice; but, speaking for myself, I cannot say that the way in which the result was arrived at appears to me altogether satisfactory; I do not think that the judgments very clearly indicate on what principle Courts ought to act in dealing with similar cases in future. That case was followed by others, more or less similar to it, namely, Ridgway v. Smith & Son,1 Mallon v. W. H. Smith & Son,2 and Martin v. Trustees of the British Museum.3

1 1890, 6 Times L. R. 275.

1894, 10 Id. 338.

29 Id. 621.

The result of the cases is, I think, that, as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it, in considering whether there has been publication of it by him, the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business, the nature of the business and the way in which it was conducted must be looked at; and, if he succeeds in shewing, (1) that he was innocent of any knowledge of the libel contained in the work disseminated by him; (2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3) that, when the work was disseminated by him, it was not by negligence on his part that he did not know it contained the libel, then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held to have published it. But the onus of proving such facts lies on him, and the question of publication or non-publication is in such a case one for the jury. Applying this view of the law to the present case, it appears to me that the jury, looking at all the circumstances of the case, have in effect found that the defendants published the libel complained of, and therefore the defendants are liable, unless that verdict is disturbed. Looking at the special circumstances of the case which were brought to the attention of the jury, I cannot say that they could not reasonably find as they did. . . . For these reasons I think the application must be dismissed.

Application dismissed.

526. HANSON v. GLOBE NEWSPAPER COMPANY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1893

159 Mass. 293, 34 N. E. 462

KNOWLTON, J. The defendant published in its newspaper an article describing the conduct of a prisoner brought before the Municipal Court of Boston, and the proceedings of the court in the case, designating him as "H. P. Hanson, a real estate and insurance broker of South Boston." He was, in fact, a real estate and insurance broker of South Boston, and the article was substantially true, except that he should have been called A. P. H. Hanson instead of H. P. Hanson. The plaintiff, H. P. Hanson, is also a real estate and insurance broker in South Boston, and in writing the article the reporter used his name by mistake. The article was as follows:

"He waxed eloquent. H. P. Hanson fined ten dollars for refusing payment of car fare. . . . H. P. Hanson, a real estate and insurance broker of South

Boston, emerged from the seething mass of humanity that filled the dock and indulged in a wordy bout with policeman Hogan, who claimed to have arrested Hanson on the charge of evading car fare and being drunk at the same time. The judge agreed that the prisoner was sober, but on the charge of evasion of car fare the evidence warranted the fining of the eloquent occupant of the dock ten dollars without costs, which he paid."

...

The justice of the Superior Court, before whom the case was tried, without a jury, "found as a fact that the alleged libel declared on by the plaintiff was not published by the defendant of or concerning the plaintiff," and the only question in the case is whether this finding was erroneous as matter of law.

In a suit for libel or slander, it is always necessary for the plaintiff to allege and prove that the words were spoken or written of and concerning the plaintiff. . . . In every action of this kind the fundamental question is, What is the meaning of the author of the alleged libel or slander, conveyed by the words used interpreted in the light of all the circumstances? The reason of this is obvious. Defamatory language is harmful only as it purports to be the expression of the thought of him who uses it. . . . In the present suit, the Court had no occasion to rely on the testimony of the writer as to the person to whom the language was intended to apply. The language itself, in connection with the publicly known circumstances under which it was written, showed at once that the article referred to A. P. H. Hanson, and that the name H. P. Hanson was used by mistake. As the evidence showed that the words were published of and concerning A. P. H. Hanson, the finding that they were not published of the plaintiff followed of necessity. .

Whether there should be a liability founded on negligence in any case when the truth is published of one to whom the words, interpreted in the light of accompanying circumstances easily ascertainable by those who read them, plainly apply; and where, by reason of identity of names, or similarity of names and description, a part of the public might think them applicable to another person of whom they would be libellous, is a question which does not arise on the pleadings in this case. So far as we are aware, no action for such a cause has ever been maintained. . . . We are of opinion that the finding was well warranted, and there must be, Judgment on the finding.

HOLMES, J. I am unable to agree with the decision of the majority of the Court, and as the question is of some importance in its bearing on legal principles, and as I am not alone in my views, I think it proper to state the considerations which have occurred to me.

The article described the subject of it as a prisoner in the criminal dock, and states that he was fined. . . . The statement is, "H. P. Hanson, a real estate and insurance broker of South Boston, emerged from the seething mass of humanity that filled the dock," etc. . . substance of the libel complained of is the statement that the plaintiff

The very

was a prisoner in the criminal dock, and was fined. The object of the article, which is a newspaper criminal report, is to make that statement. . . . The public, or all except the few who may have been in court on the day in question, or who consult the criminal records, have no way of telling who was the prisoner except by what is stated in the article, and the article states that it was "H. P. Hanson, a real estate and insurance broker of South Boston." If I am right so far, the words last quoted, and those words alone, describe the subject of the allegation, in substance as well as in form. Those words also describe the plaintiff, and no one else. The only ground, then, on which the matters alleged of and concerning that subject can be found not to be alleged of and concerning the plaintiff, is that the defendant did not intend them to apply to him, and the question is narrowed to whether such a want of intention is enough to warrant the finding, or to constitute a defence, when the inevitable consequence of the defendants' acts is that the public, or that part of it which knows the plaintiff, will suppose that the defendant did use its language about him.

On general principles of tort, the private intent of the defendant would not exonerate it. It knew that it was publishing statements purporting to be serious, which would be hurtful to a man if applied to him. It knew that it was using as the subject of those statements words which purported to designate a particular man, and would be understood by its readers to designate one. In fact, the words purported to designate, and would be understood by its readers to designate, the plaintiff. If the defendant had supposed that there was no such person, and had intended simply to write an amusing fiction, that would not be a defence, at least unless its belief was justifiable. Without special reason, it would have no right to assume that there was no one within the sphere of its influence to whom the description answered. The case would be very like firing a gun into a street, and, when a man falls, setting up that no one was known to be there. Commonwealth v. Pierce, 138 Mass. 165, 178; Hull's Case, Kelyng, 40; Rex v. Burton, 1 Strange, 481; Rigmaidon's Case, 1 Lewin, 180; Regina v. Desmond, Steph. Cr. Law, 146. So, when the description which points out the plaintiff is supposed by the defendant to point out another man whom in fact it does not describe, the defendant is equally liable as when the description is supposed to point out nobody. On the general principles of tort, the publication is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the public will understand it.

But in view of the unfortunate use of the word "malice" in connection with libel and slander, a doubt may be felt whether actions for these causes are governed by general principles. The earliest forms of the common law known to me treat slander like any other tort, and say nothing about malice. 4 Seld. Soc. Pub. 40, 48, 61. Probably the word was borrowed at a later, but still early date, from the malitia of