Stryker v. Stone, Timlow & Co.

De Courcy, J. These are two actions for libel, one brought against a corporation of which the plaintiff was a former employee, and the other against its president. After a trial of both actions, together, verdicts for the plaintiff were set aside as to damages, and a second trial was had on the question of damages only. The cases are here on exceptions taken by the defendants at both trials, and on the plaintiff’s exceptions taken at the second one. We consider first the exceptions of the defendants at the earlier trial. 1. Fourteen of these relate to the admission and exclusion of evidence. The first, third and fourth were to the admission of the published articles containing the alleged libels in the Shoe and Leather Reporter, the Medford Messenger and the Med-ford Mercury. There was ample evidence during the trial connecting the defendants with these publications and the order of proof rested in the discretion of the judge. The conversation between the defendant Stone and the publisher of Medford Mercury (exception second) was admissible at least to show that Stone procured the publications in that paper; and he later admitted that he acted as a properly authorized officer of the defendant corporation in his acts with reference to the case. Exceptions fifth and sixth, to the admission of the plaintiff’s denials of certain alleged libellous statements in the articles were not argued, and are waived. The letters of the defendant corporation to the Medford Mercury (exception eighth) and to the Med-ford Messenger (exception ninth) plainly were admissible in view of the testimony of the stenographer, Miss Morton. Slotnick v. Silberstein, 221 Mass. 59. The paragraph in the Shoe and Leather Reporter stating that Stryker had resigned his position with a view of .going into business in Canada (exception tenth) was submitted [261] by the defendant Stone, with an offer of proof that it affected him (Stone) in voluntarily going to Canada. The judge rightly excluded it as immaterial. The five letters of Clarke and Clarke, Ltd. of Toronto to their customers (exception eleventh) were res inter alios, and not relevant to the present actions. The defendant Stone, called as a witness by the plaintiff, was inquired of as to a letter written by him to Clarke and Clarke, Ltd. containing defamatory statements about the plaintiff, and tending to show actual malice on the writer’s part (exceptions twelfth and thirteenth). It now is argüed that the written statements were too remote from the date of the alleged libel. Assuming that this ground of objection was called to the attention of the trial judge, we cannot say that his discretion as to the scope of a virtual cross-examination was exercised improperly, especially in view of the charge on this subject. Exception fourteenth, to the admission of the defendant corporation’s letter and inclosure to the Shoe and Leather Reporter has not been argued, and is waived. All the exceptions of the defendant to the admission and exclusion of evidence must be overruled. 2. The defendants made eighteen requests for rulings, the first thirteen “separately as to each count in each case and the remainder separately as to the second and third counts in each case,” and excepted separately to the refusal to make each of said rulings requested. It would serve no useful purpose to discuss these in detail. We have considered all that were argued, and find no merit in them. There was ample evidence of publication and of malice; the questions raised were for the jury, and the libellous character of the articles was determined by considering each article in its entirety. Doane v. Grew, 220 Mass. 171. Lothrop v. Adams, 133 Mass. 471. 3. The exceptions of the defendants to the giving of certain instructions requested by the plaintiff have not been argued, and we treat them as waived. See Howland v. George F. Blake Manuf. Co. 156 Mass. 543. 4. The same is true as to the exceptions taken to the questions submitted to the jury. It is to be noted that the judge set aside the answer to question fifteen, on the motion for a new trial. 5. The defendants excepted to portions of the judge’s charge. [262] Only one is argued; that “to the statement by the court that the defendants stand substantially alike.” On the evidence this statement was correct. As the answers of the jury established all the essentials of liability, there was no error in directing a verdict for the plaintiff. As to damages, the verdicts were set aside. 6. We next consider the exceptions taken by the defendants at the second trial, which was on damages only. The questions asked of plaintiff in cross-examination as to having shown his business card, while with Clarke and Clarke, Ltd. to people whom he had known as customers of the defendant corporation and as to his employment of an attorney in Canada, were excluded rightly as not material on the issue of damages. We find no error in the ruling, given at the plaintiff’s request, to the effect that the truth or falsity of the charge of disloyalty which was contained in the libellous articles should not be considered, except, as under the evidence properly in the case, such truth or falsity might affect the amount of damages to be awarded by reason of that charge. The only other exceptions argued by the defendants are those to the admission of certain testimony, and to instructions to the jury, all relative to the plaintiff’s earning capacity. The defendants contend that as the plaintiff had a written contract to work for the defendant corporation until January 1, 1916, and as the jury at the first trial found that this contract was broken by him, therefore he could not recover damages for loss of his earning capacity. But the impairment of his earning capacity might be found to extend in its effects after the date when the contract was to expire. The conclusive answer to the contention of the defendants however is, that it assumes that the plaintiff might have gone back to work for the defendant corporation after it had published these libels. The jury did not so find. The charge on this subject was sufficiently favorable to the defendants in saying, “if you find that contract was still open to him after the libel was published and he reasonably ought to have gone back to that employment after that time, then I am going to permit you to consider his failure to do that, ... if that was still open to him then he cannot have damages assessed;” and “unless you find he could have gone back you get to the question whether these publications did prevent him from obtaining employment during [263] part or the whole of the time since then.” Sweet v. Post Publishing Co. 215 Mass. 450. All of the exceptions taken by the defendants at the second trial must be overruled. 7. As to the plaintiff’s exceptions at the second trial, it is difficult to see how the efforts of the plaintiff to get customers of the defendants for Clarke-and Clarke, Ltd. was competent on the question of damages; but in our opinion the error of admitting it did not injuriously affect the substantial rights of the parties. St. 1913, c. 716, § 1. The question whether the plaintiff might have gone back to work for the defendant corporation was one of fact for the jury on the evidence, and the judge rightly refused to rule as matter of law that he could not have returned to his former work. The exceptions to the judge’s refusal to give the rulings he-requested have been waived. No error is shown in the portion of the charge dealing with the plaintiff’s duty to make reasonable efforts to get work and so avoid injurious consequences. Hussey v. Holloway, 217 Mass. 100. It follows from what we have said that the exceptions taken by the defendants in both trials, and those taken by the plaintiff in the second trial, all must be overruled. Ordered accordingly.