Mix against Woodward, 12 Conn. 582

Nelson, C. J., in delivering the opinion of the court, among other remarks, said : “ It is manifest from a perusal of the libel in question, that there are no expressions contained in it, so far designating the plaintiff, as to enable any one reading it to apply to him the slanderous words. The writer of the

article is directly referred to, and is the person whose practice as a physician and surgeon, is, upon the face of the publication, impeached. The declaration, however, expressly disaffirms the authorship of the plaintiff, and seeks to maintain the action upon the assumption that the plaintiff was attacked under the assumed name of the author ; in other words, that the defendant, while assailing the professional character of the author of the article, intended the plaintiff.” —--— “ The plaintiff has set out, by way of innuendo, that he was intended, by the terms surgeon of whiskey memory, and steam doctor.

Now, an innuendo may apply what is already expressed, but cannot add to, enlarge, or change the sense of the preceding words.” -“ In this case, I am unable to find any thing upon the record, any introductory matter authorizing or warranting the inference drawn, that the words used meant the plaintiff.” -“ If, in the introductory part of the declaration, it had been averred, that the plaintiff was known in the community, by the name of the surgeon of whiskey memory, or steam doctor ; or that the defendant had been in the habit of giving him these appellations in his neighbourhood, or among his associates ; then the innuendo, in connexion with such averments, would be warranted ; and, supposing the facts to be proved, would establish a case shewing that the plaintiff was libelled under these names.” “ Again ; the plaintiff supposes he has been libelled in his professional character, in respect to his attendance and services in the three cases ; and he asks the court to infer this from the-resemblance between them and the cases mentioned in the publication.-Hundreds of physicians and surgeons may have had cases, in the course of their professional services, corresponding as closely with those described in the libel.- ■— So long as the identity rests entirely in the description of the cases, without in some way designating the individual patient, it will be illusory and inconclusive.” “ Upon the whole, the great and radical defect in all the counts, is, that assuming every fact stated in them to be proved, the plaintiff does not shew, that he has been libelled.

He is not alluded to, by name ; and the extrinsic facts and circumstances stated to warrant the conclusion that he was the person referred to, under the terms of surgeon of whiskey memory, steam doctor, physician and surgeon, or author of the

article M. B., are wholly insufficient. With the aid of all this introductory matter, neither count presents a case shewing to the court that any person reading the libel could thus understand the expressions. Without this, no injurious impression could be made upon his mind respecting the character of the plaintiff, professional or otherwise.

The publication, therefore, cannot be a libel upon him.” Upon the whole, it is impossible for my mind to resist the conclusion, that both upon principle, and the authority of adjudged cases, the declaration, in the present case, is manifestly insufficient; and that, consequently, the defendant’s motion in arrest ought to prevail. 2. Were the several questions respecting the admission of testimony, correctly decided ? The court admitted evidence of facts, not stated in the declaration, to shew, that the plaintiff was the person alluded to in the libel. In this respect, I think the court erred.

I have already attempted to shew, that it is necessary that it should appear upon the face of the declaration, that the plaintiff was the person libelled. If the plaintiff is referred to by name, in the libel, that is sufficient. If he is not, then it is necessary that the declaration should contain such averments, as, taken in connexion with the libel, will shew that the plaintiff was the person intended. All that is required on the part of the plaintiff, is, to prove those averments.

Any further testimony to shew that the plaintiff was libelled, was unnecessary and improper; unnecessary, because it was sufficient for him to prove the facts stated in the declaration ; improper, because the defendant cannot be supposed to be prepared to meet such testimony. The object in requiring that the necessary facts should be stated in the declaration, is, to apprize the defendant of what he must be prepared to meet. The evidence, therefore, to shew that the plaintiff was the person libelled, ought to have been confined to the proof of the allegations contained in the declaration.

But the subsequent publications by the defendant, were admitted to prove that the plaintiff was the person libelled in the first publication ; and this, without any allegations justifying the admission of such testimony. As has been before stated, the question is, not simply what the defendant meant by his first publication, but what was the effect upon the community, so far as the plaintiff was concerned.

Had it been entirely uncertain, who was alluded to, in the first publication, and the defendant had shewn, by subsequent publications, that the plaintiff was the person libelled in the first, the plaintiff could have undoubtedly so declared as to have made both publications evidence, and have maintained his action. But the difficulty is, there are now no averments authorizing the admission of the subsequent publications.

The plaintiff has declared in the same manner as if but a single publication had been made ; and it is not pretended, in the declaration, that the first publication became libellous, in consequence of the others. With respect to the propriety of admitting other libels to shew the malice of the defendant, I entirely concur in the opinion expressed, by the judge assigned to give the reasons of the court. The defendant offered evidence to prove the several facts specified in the notice, for the purpose of justifying the publication ; but the court rejected it for that purpose.

I am by no means certain, that those facts do not here constitute what may be termed packing a jury; and that the term would be so applied and understood by those who read the publication. The mode of selecting jurors here, is materially different from what it js in England; and when the expression jjacking a jury, is used in reference to the conduct of a justice in his official capacity, it is difficult to understand how he can be guilty of such misconduct, except in the manner stated in the notice.

It is true, there is a single case, where a justice himself power to select all the jurors; as where a jury of inquest is summoned. But it may well be doubted, whether the term has ever been used in relation to the conduct of a justice in such a case. At any rate, I am satisfied, that the term has never been confined to that single'case.

In my opinion, the evidence ought to have been submitted to the jury, for them to determine in what manner the expressions used in the libel were understood in the community, and by those who read them and I think the judge erred in withdrawing the evidence from their consideration, in the manner he did. For if the charge contained in the libel was, in point of fact, understood by those who saw it, as implying the misconduct stated in the notice, then the plaintiff has sustained no other injury than he would have done, if the libel had set forth the facts contained in the notice. In the case of Hunt v.

Algar & al. 6 Car. & Payne 245.) the defendants had copied into their newspaper a libel upon the plaintiff from another paper, and added, at the end of it, the word “fudge.” Lord Lyndhurst, C. B., left it to the jury to say, what was meant by the addition of that word ; whether to vindicate the character of the plaintiff, or whether it was introduced for the purpose of creating an argument in case proceedings should be afterwards taken. The same course, in my opinion, ought to have been adopted by the court below, in relation to the misconduct stated in the libel.

In the several particulars mentioned, the judge, in my opinion, erred.