Francis H. (Francis Hermann) Bohlen.

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was a matter of no consequence, so far as the question of actual
(lamaj:^es was involved.

Judgment and order reversed and cause remanded for new

Supreme Judicial Court of Massachusetts, 1893. 159 Mass. 293.

Knowlton, J. The defendant published in its newspaper an
article describing the conduct of a prisoner brought before the Mu-
nicipal Court of Boston, and the proceedings of the court in the
case, designating him as "II. P. Hanson, a real estate and insurance
broker of South Boston." He was, in fact, a real estate and insur-
ance broker in 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 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 pub-
lished 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 every action of this kind the fundamental question is. What

^Accord: Clark v. North American Co.. 203 Pa. 346 (1902), the defend-
ant newspaper published an article asserting that John Clark, a city employe,
watchman in Starr Garden Park, was implicated in a burglary. The plaintiff,
James Clark, was the watchman or superintendent of the park. The plaintiff
had a brother John Clark, who had been reported by other papers as having
been arrested. Held that, "the proper way to submit it to the jury was to
call their attention to the fact that the name used in the article did not refer
to the plaintiff, but to one John Clark, a different person, but on the other
hand, the description pointed directly to the plaintiff and the jury should
consider the whole article and determine from all the evidence, whether,
notwithstanding the difference of name, the description was such either
intentionally or by want of due care and diligence in ascertaining the true
facts, that there would be a natural and reasonable inference that the plain-
tiff was the person referred to. If there would the defendant was liable";
Davis V. Marxhausen, 86 Mich. 281 (1891), the plaintiff had the same name
as a thief whose arrest the defendant's newspaper intended to report; by
some error the plaintiff's address was given as that of the accused; Butler
V. Barret, 130 Fed. 944 (Circ. Ct. 1904). per Archibald, J., p. 947; McLlcan
V. New York Press Co., 19 N. Y. S. 262 (1892), a paper, pulilishing a ma^
showing the disorderly houses in a certain part of New York, by mistake
marked as such the plaintiff's house, instead of the house next door, which
was the house which was intended to be exposed as disorderly.

Contra: Grav, J., in Everv Evening Printing Contf^any v. Butler, 144
Fed. 916 (C. C. A. 1906), semble, though here as in Butler v. Barret, 130
Fed. 944 (Circ. Ct. 1904) — both actions for several publications of the same
article — the statement was undoubtedly intended to be concerning the plain-
tiff, the mistake being in assuming that a person having a similar name, who
had been sentenced in a police court, was the plaintitt : Stephen, J., in Hutch-
inson V. Robinson, 21 New South Wales Law 130 (1900).


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 determining the effect of a slander the questions involved
are, what is the thought intended to be expressed, and how much
credit should be given to him who expresses it? The essence of
the wrong is the expression of what purports to be the knowledge
or opinion of him who utters the defamatory words, or of some one
else whose language he repeats. His meaning to be ascertained in
a proper way, is what gives character to his act, and makes it inno-
cent or wrongful. The damages depend chiefly upon the weight
which is to be given to his expression of his meaning, and all the
^questions relate back to the ascertainment of his meaning.

For the purpose of this case it may be assumed, in favor of the
plaintiff', that if the language used in a particular case, interpreted
in the light of such events and circumstances attending the publica-
tion of it as could readily be ascertained by the public, is free from
ambiguity in regard to the person referred to, and points clearly to
a well known person, it would be held to have been published con-
cerning that person, although the defendant should show that
through some mistake of fact, not easily discoverable by the pub-
lic, he had designated in his publication a person other than the one
whom he had intended to designate.

Whether the defendant should ever be permitted to state his
undisclosed intention in regard to the person of whom the words
are used, may be doubtful. If language purporting to be used of
only one person would refer equally to either of two different per-
sons of the same name, and if there were nothing to indicate that
one was meant rather than the other, there is good reason for hold-
ing that the defendant's testimony in regard to his secret intention
might be received, but perhaps such a case is hardly supposable.
Odgers, in his book on Libel and Slander, at page 129, says : "So,
if the words spoken or written, though plain in themselves, apply
equally well to more persons than one, evidence may be given both
of the cause and occasion of publication, and of all the surround-
ing circumstances affecting the relation between the parties, and also
any statement or declaration made by the defendant as to the person
referred to." In Regina v. Barnard, 43 J. P. 127, when it was un-
certain whether the libel referred to the complainant or not, and
when the language was applicable to him, Lord Chief Justice Cock-
burn held the affidavit of the writer that he did not mean him, but
some one else, to be a sufficient reason for refusing process. In
De Armond v. Armstrong, 37 Ind. 35, evidence was received of
what the witnesses understood in regard to the person referred to.

If the defendant's article had contained anything libelous
against A. P. H. Hanson, there can have been no doubt that he
could have maintained an action against the defendant for this pub-
lication. The name used is not conclusive in determining the mean-
■* ing of the libel in respect to the person referred to ; it is but one


fact to be considered with other facts upon the subject. Fictitious
names are often used in Hbcls, and names similar to that of the per-
son intended, but (Hffering somewhat from it. A. P. H. Hanson
could have shown that the description of him by name, residence,
and occupation was perfect, except in the use of the initials "H. P."
instead of "A. P. H.," that the article referred to an occasion on
which he was present, and gave a description of conduct of a pris-
oner, and of proceedings in court, which was correct in its applica-
tion to him and to no one else. The internal evidence \vhen applied
to facts well known to the public would have been ample to show
that the language referred to him, and not to the person whose name
was used.

So, 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. The article was of such a kind that it referred, and could
refer, to one person only ; when that person was ascertained, it
might appear that the publication as against him was or was not
libelous, and his rights, if he brought a suit, would depend upon the
finding in respect to that. No one else would have a cause of action,
even if, by reason of identity of name w^ith that used in the publica-
tion, he might suffer some harm. For illustration, suppose a libel
is written concerning a person described as John Smith of Spring-
field. Suppose there are five persons in Springfield of that name.
The language refers to but one. When we ascertain by legitimate
evidence to wdiich one the words are intended to apply, he can main-
tain an action. The other persons of the same name cannot recover
damages for a libel merely because of their misfortune in having
a name like that of the person libeled. Or, if the defendant can
justify by proving that the words were true, and published without
malice, he is not guilty of a libel, even if, written of other persons
of the same name of whose existence very likely he was ignorant,
the words would be libelous ; otherwise, one wdio has published that
which by its terms can refer to but one person, and be a libel on him
only, might be responsible for half a dozen libels on as many dif-
ferent persons, and one who has justifiably published the truth of a
person might be liable to several persons of the same name of whom
the language would be untrue. The law of libel has never been
extended, and should not be extended, to mclude such cases.

Whether there should be a liability founded on negligence in
any case when the truth is published of one to whom the w'ords,
interpreted in the light of accomj^anying circumstances easily ascer-
tainable by those who read them, ])lainly 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 hbelous, 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. It is ordinarily to be pre-
sumed, although it may not always be the fact, that those who are
enough interested in a person to be affected by what is said about
him, will ascertain, if they easily can, whether libelous words which
purport to refer to one of his name were intended to be applied to
him or to some one else.

The question in this case, whether the words were published of
and concerning the plaintiff, was one of fact on all the evidence.
Unless it appears that the matters stated in the report would not
warrant a finding for the defendant, there must be judgment for
him, even if the finding of fact might have been the other way.
We are of opinion that the finding was well warranted, and there
must be, Judgment on the finding.

Holmes, J. The article described the subject of it as a prisoner
in the crimmal dock, and states that he was fined, and this makes
it possible to speak of the article as one describing the conduct of
a prisoner. But this mode of characterization seems to me mis-
leading. In form it describes the plight and conduct of "H. P. Han-
son, a real estate and insurance broker of South Boston." 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. In order to give it any different subject, or to
give the subject any further qualifications or description, you have
to resort to the predicate, to the very libelous matter itself. It is
not necessary to say that this never can be done, but it must be
done with great caution. The very substance of the libel com-
plained of is the statement that the plaintiff was a prisoner in the
criminal dock and was fined. The object of the article, which is a
newspaper criminal court report, is to make that statement. The
rest of it amounts to nothing, and is merely an attempt to make the
statement amusing. If an article should allege falsely that A. mur-
dered B. with a knife, it would not be a satisfactory answer to an
action by A. that it was a description of the conduct of the murderer
of B., and was true concerning him. 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 con-
cerning that' subject can be found not to be alleged of and concern-
ing 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 defendant's acts is that the


public, or that part of it which knows the plaintiff, will suppose that
the dcfciidaiit did use its language about him.

(Jn general principles of tort, the private intent of the defend-
ant would not exonerate it. It knew that it was publishing state-
ments 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 inlluence to
whom the description answered. The case would be very like firing
a gun into the street, and, when a man falls, setting up that no one
was known to be there. 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 detri-
mental 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 ac-
tions for these causes are governed by general principles. The
earliest form 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 the canon law. By the canon law,
one who maliciously charged another with a grave sin incurred ex-
communication, ipso facto. Lyndw., Provinciale, lib. 5, tit. 17
(De Sent. Excomm. c. i, Auctoritate Dei). Oughton, Ordo Ju-
diciorum, tit. 261. Naturally malitia was defined as cogitatio maloe
mentis, coming near to conscious malevolence. Lyndw., uhi supra,
note /. Naturally also for a time the common law followed its
leader. Three centuries ago it seems to have regarded the malice
alleged in slander and libel as meaning the malice of ethics and the
spiritual law.

In the famous case where a parson in a sermon repeated, out
of Fox's Book of ~\Iartyrs, the story "that one Greenwood, being a
perjured person, and a great persecutor, had great plagues inflicted
upon him, and was killed by the hand of God, whereas in truth he
never was so plagued, and was himself present at that sermon,"
and afterwards sued the parson for the slander, Chief Justice Wray
instructed the jury "that, it being delivered but as a story, and not
with any malice or intention to slander any. he was not guilty of
the words maliciously ; and so was found not guilty." Grconvood
V. Prick, stated in Brook v. Montague, Cro. Jac. 90, 91. See also,
Craivford v. Middleton, i Lev. 82, ad fin.


But that case is no longer law. Hcarne v. Stoivell, 12 A. & E.
719, '/26. The law constantly is tending towards consistency of
theory. For a long time it has been held that the malice alleged in
an action of libel means no more than it does in other actions of
tort. Coinmonzvcalth v. York, 9 Mete. 93, 104, 105. Gassett v. Gil-
bert, 6 Gray, 94, 97. Abrath v. Northeastern Raihvay, 11 App. Cas.
247, 253, 254. See Commonzvealth v. Pierce, 138 Mass. 165, 175
et seq.; White v. Duggan, 140 Mass. 18, 20. Indeed, one of the
earliest cases to state modern views was a case of libel. Bromage
V. Prosscr, 4 B. & C. 247, 255. Accordingly, it recently was laid
down by this court that the liability was the usual liability in tort
for the natural consequences of a manifestly injurious act. Burt v.
Advertiser Newspaper Co., 154 Mass. 238, 245. A man may be
liable civilly, and formerly, at least by the common law of England,
even criminally, for publishing a libel without knowing it. Curtis
V. Mussey, 6 Gray 261. Commonzvealth v. Morgan, 107 Mass. 199.
Dunn V. Hall, i Ind. 344. Rex v. Walter, 3 Esp. 21. Rex v. Giitch.
Mood. & Malk. 433. See also, Rex v. Cuthell, 27 St. Tr. 642. And
it seems he might be liable civilly for publishing it by mistake, in-
tending to pubHsh another paper. Mayne v. Fletcher, 4 Man. ^\.
Ry. 311, 312, note. Odgers, Libel and Slander (2d ed.) 5. So,
when by mistake the name of the plaintiff's firm was inserted under
the head "First IMeetings under the Bankruptcy Act," instead of
under "Dissolution of Partnerships." Shepheard v. Whitaker, L.
R. 10 C. P. 502. So a man will be liable for a slander spoken in
jest, if the bystanders reasonably understand it to be a serious
charge. Donoghue v. Hayes, Hayes, 265. Of course it does not
matter that the defendant did not intend to injure the plaintiff, if
that was the manifest tendency of his words. Curtis v. Mussey, 6
Gray, 261, 273. Haire v. Wilson, 9 B. & C. 643. And to prove
a publication concerning the plaintiff, it lies upon him "only to show
that this construction, which they've put upon the paper, is such as
the generality of readers must take it in, according to the obvious
and natural sense of it." The King v. Clerk, i Barnard, 304, 305.

I feel some difficulty in putting my finger upon the precise
point of difference between the minority and majority of the court.
I understand, however, that a somewhat unwilling assent is yielded
to the general views which I have endeavored to justify, and I
should gather that the exact issue was to be found in the statement
that the article was one describing the conduct of a prisoner brought
before the Municipal Court of Boston, coupled with the later state-
ment that the language, taken 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 of H. P.
Hanson was used by mistake. T have shown why it seems to me
that these statements are misleading. I only will add on this point,
that I do not know what the publicly known circumstances are. I
think it is a mistake of fact to suppose that the public generally
know who was before the Municipal Criminal Court on a given
day. I think it is a mistake of law to say that, because a small part


of the public have that knowledge, the plaintiff cannot recover for
the harm dc;nc him in the eyes of the greater part of the public,
probably including all his acquaintance who arc ignorant about the
matter, and 1 also think it is no sufficient answer to say that they
might consult the criminal records, and find out that probably there
was some error. Blake \. Stevens, 4 F. & F. 232, 240. If the case
should proceed further on the facts, it might appear that, in view
of the plaintiff's character and circumstances, all who knew him
would assume that there was a mistake, that the harm to him was
merely nominal, and that he had been too hasty in resorting to an
action to vindicate himself. But that question is not before us.

With reference to the suggestion that, if the article, in addition
to what was true concerning A. P. H. Hanson, had contained mat-
ter which was false and libelous as to him, he might have maintained
an action, it is unnecessary to express an opinion. I think the
proposition less obvious than that the plaintiff' can maintain one. If
an article should describe the subject of its statements by two sets
of marks, one of which identified one man and one of which identi-
fied another, and a part of the public naturally and reasonably were
led by the one set to apply the statements to one plaintiff', and an-
other part were led in the same way by the other set to apply them
to another, I see no absurdity in allowing two actions to be main-
tained. But that is not this case:

Even if the plaintiff' and A. P. H. Hanson had borne the same
name, and the article identified its subject only by a proper name,
very possibly that would not be enough to raise the question. For,
as every pne knows, a proper name always purports to designate one
person and no other, and although, through the imperfection of our
system of naming, the same combination of letters and sounds may
be applied to two or more, the name of each, in theory of law, is
distinct, ahhough there is no way of finding out which person was
named but by inquiring which was meant. "Licet idem sit nomen,
tamen diversum est propter diversitatem personae."

Mr. Justice Morton and Mr. Justice Barker agree with this


Court of Appeals, 1909. L. R. 1909, 2 K. B. 444.
House of Lords, 1909. L. R. 1909, A. C. 20.

May 24. Lord Alvf.rstone C. J. read the following judgment:
— This was an appeal in an action for libel tried before my brother
Channell and a special jury at the Manchester Assizes. The action
was brought by the plaintiff, a member of the Bar, in respect of a
lihel published^ in the Sunday Chronicle of July 12, 1908 (the pas-
sages complained of are set out in the statement of claim), which ap-
peared in an article in the defendant's paper purporting to describe
what the Paris correspondent of the paper had witnessed at Dieppe,


and the particular passage on which the question really turns was in
these words: "Whist! there is Artemus Jones with a woman who
is not his wife, who must be, you know — the other thing ! whispers
a fair neighbor of mine excitedly into her bosom friend's ear.
Really, is it not surprising how certain of our fellow-countrymen
behave when they come abroad?" It was alleged by the plaintiff
that this passage was libel upon him.

The material facts which Avere proved in evidence at the trial
were as follows : The plaintiff, whose real name is Thomas Jones,
is thirty-seven years old, and since the year 1901 has been a mem-
ber of the Bar, practising on the North Wales Circuit. His bap-
tismal name was Thomas Jones, but ever s'nce he was at school he
had been known by the name of Artemus Jones or Thomas Ar-
temus Jones. He was confirmed in the latter name in the year 1886,
and it appears to have been given him by his father in order to
distinguish him from other persons of the name of Jones. The
defendants alleged that the name was used as a fictitious name
adopted by the writer of the article without any knowledge of the
existence of the plaintiff or of any person named Artemus Jones ;
and both the writer and the editor, who were called as witnesses
by the defendants under circumstances to which I shall have to
refer, stated that they had no knowledge whatever of the plaintiff,
and had no intention to refer to him, and that so far as they were
concerned the name was entirely an imaginary name. The counsel
for the plaintiff accepted the explanation given by the writer, Mr.
Dawbarn, and the editor, Mr. Woodbridge, and expressly stated
that he did not, after their evidence, allege that they or either of
them were in fact actuated by malice, or intended to refer to the