publication was of and concerning the plaintiff, notwithstanding the presence of another fact, the name of the real signer of the certificate, if that was Mrs. Schuman, that was inconsistent, when all the facts were known, with the plaintiff's having signed or adopted it. Many might recognize the plaintiff's face without knowing her name, and those who did know it might be led to infer that she had sanctioned the publication under an alias.

There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff's portrait, or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libellous, the defendant took the risk. As was said of such matters by Lord Mansfield, "Whenever a man publishes, he publishes at his peril." R. v. Woodfall, Lofft, 776, 781. See further, Hearne v. Stowell, 12 Ad. & El. 719, 726; Shepheard v. Whitaker, L. R. 10 C. P. 502; Clarke v. North American Co., 203 Pa. 346, 351, 352, 53 Atl. 237. The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of some one else. See Morasse v. Brochu, 151 Mass. 567, 575, 8 L. R. A. 524, 21 Am. St. Rep. 474, 25 N. E. 74.

The question, then, is whether the publication was a libel. It was held by the Circuit Court of Appeals not to be, or, at most, to entitle the plaintiff only to nominal damages, no special damage being alleged. It was pointed out that there was no general consensus of opinion that to drink whisky is wrong, or that to be a nurse is discreditable. It might have been added that very possibly giving a certificate and the use of one's portrait in aid of an advertisement would be regarded with irony, or a stronger feeling, only by a few. But it appears to us that such inquiries are beside the point. It may be that the action for libel is of little use, but, while it is maintained, it should be governed by the general principles of tort. If the advertisement obviously would hurt the plaintiff in the estimation of an important and respectable part of the community, liability is not a question of a majority vote.

We know of no decision in which this matter is discussed upon principle. But obviously an unprivileged falsehood need not entail universal hatred to constitute a cause of action. No falsehood is thought about or even known by all the world. No conduct is hated by all. That it will be known by a large number, and will lead an appreciable fraction of that number to regard the plaintiff with contempt, is enough to do her practical harm. Thus, if a doctor were represented as advertising, the fact that it would affect his standing with others of his profession might make the representation actionable, although advertising is not reputed dishonest, and even seems to be regarded by many with pride. See Martin v. The Picayune (Martin. Nicholson Pub. Co.),

115 La. 979, 4 L. R. A. (N. s.) 861, 40 So. 376. It seems to us impossible to say that the obvious tendency of what is imputed to the plaintiff by this advertisement is not seriously to hurt her standing with a considerable and respectable class in the community. Therefore it was the plaintiff's right to prove her case and go to the jury, and the defendant would have got all that it could ask if it had been permitted to persuade them, if it could, to take a contrary view. Culmer v. Canby, 41 C. C. A. 302, 101 Fed. 195, 197; Twombly v. Monroe, 136 Mass. 464, 469. See Gates v. New York Recorder Co., 155 N. Y. 228, 49 N. E. 769.

It is unnecessary to consider the question whether the publication of the plaintiff's likeness was a tort per se. It is enough for the present case that the law should at least be prompt to recognize the injuries that may arise from an unauthorized use in connection with other facts, even if more subtilty is needed to state the wrong than is needed here. In this instance we feel no doubt.

Judgment reversed.

157. MERRILL v. POST PUBLISHING COMPANY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1908

197 Mass. 185, 83 N. E. 418

APPEAL from Superior Court, Essex County.

Action by W. Harvey Merrill against the Post Publishing Company, for libel. From a judgment for defendant, plaintiff appeals. Affirmed in part and reversed in part.

The following is the alleged libellous article referred to in the opinion.

"Blood relatives and co-heirs, living together in the house jointly owned for over twenty years, and not having spoken to each other for over ten long years, is the strange story of Salem's divided house, of which Miss Sophie Merrill, now out on bail in connection with thefts from the Salem post office, is a member.

"She and her father, William H. Merrill, occupying and owning half of the house 12 Liberty Street, and her cousin, John Barker, occupying and owning the other half, have lived under the same roof, used the same entrances and the same yard, have passed each other in the entries of the house day in and day out, and have never exchanged even a syllable in all that long ten years.

"Ever since Miss Merrill, to the great surprise of all who knew her, was arrested, charged with the theft of mail matter from the post office, of which her brother is the official head, many sensational stories have been afloat.

"The veil of mystery seems to surround the strange case of Sophie Merrill, who, on an income of $900 a year, was, it is alleged, forced to steal in order to live. . . .

"While she herself is little known, Postmaster Merrill's friends are legion, and there is great sympathy for him, in view of what was to him a great and unexpected blow.

"After his sister's arrest he or his wife, to whom the property belonged, sold

five houses in South Salem at a sacrifice, for the same reason, it is said, that he desired to turn the East Boston house into cash.

"For a long time after his sister's arrest Mr. Merrill called every day to see her...

"Even Postmaster Merrill, a man with a sunny disposition and an unusual number of friends, has enemies. He has lost a fortune in his lifetime, and is said to be heavily burdened with debt, besides which he is heavily weighed down by the crushing calamity that has fallen upon him. . . .'

Harrison Dunham, for appellant.

Elder & Whitman and James T. Pugh, for appellee.

LORING, J. It is alleged in the first count, which by reference sets forth at length the whole article published in the defendant's newspaper, that this article was published "of and concerning the plaintiff, in conjunction with his sister also mentioned in said libellous publication."

We are of opinion that as matter of law there is nothing in what is there written as to the mystery of the divided house No. 12 Liberty Street, Salem, which is a libel on the plaintiff. It is not stated that the plaintiff lived at that house during the time in question. It was Sophie and her father and John Barker and his mother who originally lived in the two halves of that house, and the period of ten years' silence between the two families began about 1894, when John Barker's mother died. During this time the plaintiff lived "in South Salem," and it is stated that after Sophie's arrest John Barker "always spoke to his cousin, the postmaster, in whose trouble he sympathized."

If the first count sets forth a libel on the plaintiff, it is in substance because, in a variety of ways, the article in question states "of and concerning the plaintiff" that his sister Sophie has been arrested for larceny of letters from the post office.

The defendant's argument is that this is a libel on Sophie and not on the plaintiff. This is undoubtedly a libel on Sophie, but it does not necessarily follow that it is not a libel on the plaintiff also. See Dow v. Long, 190 Mass. 138, 76 N. E. 667. To write of a man that he is the brother of a sister arrested for larceny might well be thought by a jury "to impair his . . . standing in the community," to use the language employed by this Court in Bishop v. Journal Newspaper Co., 168 Mass. 327, 331, 332, 47 N. E. 119.

In almost every case of libel the reputation of the plaintiff as to character is attacked. The case at bar presents the question whether there are not statements which affect a person's standing in the community which do not affect his character. And we are of opinion that there are. It was so decided in Shelby v. Sun Printing & Publishing Ass'n, 109 N. Y. 611, 15 N. E. 895, affirming "on opinion below," the decision made below reported in 38 Hun, 474. The libel in that case consisted in stating that the plaintiff and his sister "are illegitimate children of the adopted father's intimate friend." In the Court below it was stated that:

"In this case there was no charge against the integrity or morality, or behavior or reputation, of the plaintiff. The statement is that she is illegitimate, a circumstance over which, of course, she could have no control, and for which she was personally in no way responsible. In the estimation of mankind, however, as it is understood, the assertion that a person is illegitimate is a reproach, and one which might, in all probability, frequently subject the person of whom it is said to contumely, to indignity, and, perhaps, to insult. It is unfortunate to be obliged to take this view of human conduct, but we must take the world as we find it, and reason out the problems which are presented to us with reference to human frailties or human prejudices, whatever may be the designation given to a disposition often exhibited to make a person suffer for the deeds of his ancestors."

And in support of that conclusion Starkie on Slander and Libel (Am. ed. of 1830), 166, and the cases of Cropp v. Tilney, 3 Salk. 226, and Villars v. Monsley, 2 Wils. 403, were there cited. See also, in this connection, Wythens, J., in Baldwin v. Flower, 3 Mod. 120; Odgers, Libel & Slander (4th ed.) 16.

The statement that the plaintiff is a bastard is not the only statement which affects his standing in the community. We cannot doubt that it would be a libel to publish of a white man that he is a negro. A negro may be far more noble in character than the white plaintiff; but that is not the question. If a plaintiff is stated in writing to be a negro when he is in fact a white man, his standing in the community is or may be affected.

In our opinion the same is true of a written statement that the plaintiff's father and mother and other ancestors were criminals, and in a less degree, as in the case at bar, that a brother or sister is a criminal or has been arrested for crime.

The defendant has cited the case of Subbaiyar v. Kristmaiyar (I. L. R.) 1 Mad. 383, as a decision to the contrary. That was a case where a brother brought an action because the defendant had uttered a defamatory statement as to his sister. The defamatory statement in that case was made of the sister and not of the plaintiff, and the plaintiff's name was not mentioned in connection with the statement in question. All that was decided in that case was that to be the foundation of an action the defamatory words complained of must have been spoken of the plaintiff. The decision was plainly right. To write of a woman that she has had an illegitimate daughter (who is not named) is a libel on the woman. But it is not a libel on the woman's illegitimate daughter, and although it may hurt the daughter she cannot sue the defendant because he has published a libel of and concerning her mother. See in this connection the reasoning of Cranch, C. J., in Johnson v. Brown, 4 Cranch, C. C. (U. S.) 235, 237, Fed. Cas. No. 7375. On the other hand, to write of the daughter that she is an illegitimate child, without naming the mother, is a libel on the daughter, as was held in Shelby v. Sun Printing & Publishing Ass'n, 109 N. Y.

611, 15 N. E. 895, but it is not a libel on the mother. And although the mother may suffer she cannot sue, for the reason that the defamatory words were not written of her. The cases of Luckumsey Rowji v. Hurbun Nursey (I. L. R.), 5 Bomb. 580, and Sorensen v. Balaban, 11 App. Div. 164, 42 N. Y. Supp. 654, are cases where the defamatory words were spoken of a deceased person, and they are decisions standing on the same footing as Subbaiyar v. Kristmaiyar, ubi supra, namely, that the defamatory words were spoken of the deceased person alone and were not spoken of the plaintiff.

The case at bar is a case where the defamatory words are alleged to have been spoken "of and concerning the plaintiff, in conjunction with his sister also mentioned in said libellous publication." It remains to consider whether that is legally possible; whether, for example, a written statement that a woman (naming her) has had an illegitimate daughter, (naming her) is or may be a libel on both, and we are of opinion that it may be, although the case of Wellman v. Sun Printing & Publishing Ass'n, 66 Hun, 331, 21 N. Y. Supp. 577, seems to be a decision to the contrary.

We are of opinion that we cannot withdraw the case stated in the first count from the jury. To do so we must be able to say that with respect to the plaintiff the publication is not reasonably capable of being understood in a defamatory sense. See Twombly v. Monroe, 136 Mass. 464, 469. .

It follows that the entry must be:

Judgment for the defendant on the third and fourth counts affirmed. Judgment for the defendant on the first and second counts reversed.

158. DAVIS v. NEW ENGLAND RAILWAY PUBLISHING COMPANY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1909

203 Mass. 470, 89 N. E. 565

REPORT from Superior Court, Suffolk County.

Suit by William L. Davis against the New England Railway Publishing Company and others. The cause was heard by a single justice on the demurrers of the respective defendants, and the cause was reported for the opinion of the full court. Demurrer overruled, with leave to

answer.

Warren, Hoague, James & Bigelow, for plaintiff.

Edwd. F. McClellen and A. T. Wright, for defendants.

KNOWLTON, C. J. The plaintiff is the proprietor of the Northern Express Company, which carries merchandise between Boston and many cities and towns in Massachusetts, Maine, and New Hampshire. He also sublets portions of his office to the proprietors of other express companies doing business in or near Boston. The defendant corporation