Ira Barrows vs. Benoni Carpenter & another, 11 Cush. 456

Thomas, J. This was an action of tort for a libel; the declaration in substance alleges that the defendants caused to be published in a pamphlet (described in the declaration) a charge that the plaintiff had been guilty of gross immorality in having broken his solemn pledge given to Dr. Carpenter. Several questions are raised by the report, and by the arguments of the learned counsel, and among others whether there was any publication by the defendants as alleged in the declaration.

The charge is of a publication in a pamphlet; no other publication is averred, and we are of opinion that upon the evidence reported, there was no publication by the defendants. To determine this, we must consider what it is the defendants are charged with publishing, and secondly, their agency, if any, in causing the publication. 1.

The facts show that at a meeting of the counsellors of the Massachusetts Medical Society, two resolutions were offered by the defendant Carpenter, one for the expulsion of homoeopathic practitioners generally, and the other for the expulsion of the plaintiff for being guilty of dishonorable conduct and irregular practice; the first resolve was laid upon the table, the second referred to a committee of three counsellors. This committee at a subsequent meeting held May 30th, 1850, made their report. The plaintiff and defendants were present. The case having been stated by Dr. Carpenter, and a defence made by Dr.

Barrows, Dr. Storer moved the expulsion of the plaintiff. This motion was orally made, and Dr. Bigelow suggested that the words of the by-laws “ gross immorality ” should be used. The defendant Storer stated he did not care what words were used, but he thought the plaintiff should be expelled. Some discussion was had as to the form of the motion, and it was determined to use the words of the by-laws “ gross immorality with the addition,” in relation to Dr. Carpenter by way of explanation, but at whose motion or suggestion the addition or explanation was made does not appear.

The motion was reduced to writing by the secretary and was read and adopted. The record by the secretary is “ Dr. Storer moved that the counsellors propose to the society the expulsion of Dr. Barrows, on the ground of gross immorality ’ in having broken his solemn written contract given to Dr. Carpenter.” Tt is this vote printed in the annual publication of the Massachusetts Medical Society, which the defendants are charged with having caused to be published in a pamphlet. The motion made by Dr. Storer was for the expulsion of the plaintiff.

In its present form, and as containing the charge of gross immorality alleged in the libel, in the plaintiff’s declaration, it was neither written by Dr. Storer or dictated by him. Neither was it written or dictated by Dr. Carpenter. He had introduced a motion at a previous meeting, for the expulsion of Dr. Barrows for being guilty of dishonorable conduct, and foi irregular practice. That motion was referred to a committee and it was upon their report that the motion to propose to the society the expulsion of the plaintiff was made and passed. The motion so passed by the counsellors makes part of their record.

What agency, if any, had the defendants in causing it to appear in the publication of the society ? The report shows that there was a standing committee of the counsellors, called the committee on publications, to which neither of the defendants belonged. The annual publications are made under the direction of this committee.

The rules and orders of the counsellors require that these publications shall contain among other matters, in an appendix, an abstract of the proceedings of the society and of the counsellors, comprising the record of all their transactions, excepting only such as' are of a private or personal nature. The plaintiff’s witness, Dr.

Bowditch, testified that he carried the records to the committee on publication according to usage; that the records were copied and sent to the printer; that after the records are made up and given to the committee on publication, they have the exclusive control of them, and no member of the society can direct what shall be published or omitted. There is no evidence that the defendants, or either of them, induced or influenced the committee to publish any part of the record.

On the other hand it was the publication of the standing committee upon their own responsibility, and in the exercise of their own discretion, and without any suggestion from the defendants. We are of opinion that upon this evidence the charge in the declaration is not established that the defendants published, or caused to be published, the charge set forth in the declaration. The court are of opinion that by the evidence the plaintiff cannot maintain his action; and by the agreement of the parties the plaintiff is to become nonsuit. Plaintiff nonsuit.