Fogg v. Boston & Lowell Railroad

Liability of Corporation for a Libel. A corporation is liable in damages for the publication of a libel, as it is for its other torts. At the trial of an action for libel against a railroad corporation, there was evidence that the plaintiff was a railroad ticket broker in a city where the defendant had its chief terminus and its principal managing agents were, including its general passenger agent; that a libellous extract from a newspaper, to the effect that' the plaintiff was neither safe nor reliable to deal with, was kept posted forty days in a conspicuous place in an office of the defendant in the same street with the plaintiff’s office, and arranged especially for the sale and advertising of railroad tickets under the charge of a ticket agent and clerks employed by it; and that the general passenger agent, although notified, refused to interfere with such posting. Held, that there was evidence for the jury that the defendant had published the libel or ratified its publication, or that it was published by a servant of the defendant’s in the course of his employment.

Tort for an alleged libel contained in the following words : “ Alleged Ticket Swindle. A Boston man charged with swindling a poor woman. (Special despatch to the Herald.) New York, May 8, 1885. Catherine Egan, of Kansas City, cried bitterly at Castle Garden to-day, as she told how she had been swindled. ■ She made affidavit that she went to Boston to get her two children, who had just landed. Mr. Fogg, of 272 Washington Street, she said, sold her two tickets to Chicago for sixteen dollars. They proved to be one-dollar tickets sold by the Pennsylvania Railroad some months ago, and are now worthless. Superintendent Jackson telegraphed to the chief of police of Boston to arrest Fogg, .and sent the woman and children back to Boston.” Writ dated June 20, 1885. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows. The defendant admitted that the above words were libellous. There was evidence tending to show that, in May and June, 1885, the plaintiff was a railroad ticket broker doing business at No. 277 Washington Street, Boston; that Lucius Tuttle was the general passenger and ticket agent of the defendant corporation, having his office in its station on Causeway Street, in said Boston, receiving a stated salary from the defendant for his services as such agent, and as such “ was in general charge, on behalf of said corporation, of all the tickets and sales of tickets for transportation of passengers over the road of the defendant corporation and its connections, and had the general control and supervision of all offices used for, and the agents employed by, said corporation in the sale of said tickets ”; that one of the defendant’s offices for the sale -of passenger tickets was at No. 218 Washington Street, Boston, which was leased by the defendant, and was arranged especially for the sale of tickets and for advertising the same, and was in the immediate charge of Lorenzo S. Dow, whose clerks in that office were one Chick and one Pendergast, and that Dow, Chick, and Pendergast were all employed by the defendant at fixed salaries, and were each and all under the control and supervision of Tuttle. There was also evidence that the alleged libel was printed in the morning edition of the Boston Herald of May 9, 1885; that in the evening edition of that day a retraction of the same was printed by that paper; that on May 10, 1885, there was conspicuously hung up in the defendant’s office at No. 218 Washington Street, where everybody might see it who should enter the office for the transaction of business or for the purchase of tickets, a placard, or half-sheet of note paper, upon which was pasted a copy of the alleged libel, cut from the Boston Herald, with double lines of red ink drawn around the printed matter, with the words “ Boston Herald ” above, and “ May 9, 1885,” below the red lines; that on or about May 22, acting upon information, the plaintiff, with one Miles, upon going to the defendant’s office, there found displayed this libellous placard; that, after conversation in relation to it with either Chick or Pendergast, in Dow’s absence, the plaintiff removed the libellous placard, saying, substantially, 1 won’t have it here; it hurts my character; it injures my business; if you hang up such a thing as this, why don’t you hang the retraction, too?” that thereupon Miles, at the plaintiff’s request, went immediately to Tuttle, and exhibited the libellous placard to him, telling him that the publication was injuring the plaintiff, and requesting him to have it stopped. There was further evidence, that Dow, on the same day, went to the plaintiff’s office, and stated that he had procured another copy of the libellous article, and hung it up again in the defendant’s office at No. 218 Washington Street, where, on the same day, the plaintiff saw it exposed publicly in full view of everybody entering the office, in substantially the same form and manner as it had been displayed previously to its removal by him, and where it hung until the date of the writ; that the plaintiff, and Miles, at his request and on his' behalf, immediately notified Tuttle in writing of the continuance of the publication of the libellous matter in the defendant’s office. Tuttle wrote to Miles as follows: “ Dear Sir, — I received your letter of 22d inst., and also one from Mr. Fogg. After having examined into the whole matter, it seems to me that, in going into Mr. Dow’s office and taking away, without his knowledge or permission, any material hanging therein, you were the aggressor. This is aside fróm all question of whether Dow’s course in hanging up the notice in question was advisable. The notice was cut from a public newspaper and was Dow’s property, and it being such, he had a right to expose it in any way he pleased upon the premises under his charge. If you had gone to Dow and asked him to remove the notice, and he had refused to do so, I think you would then have had ground for complaint to me, but as you took the law in your own hands, it seems to me you left nothing for me to do. I have no doubt, if you call upon Mr. Dow at his office, and state the case to him as you have to me, you will find him willing to accommodate you in every particular; until you do this, it does not seem a matter for me to interfere with.’’ The judge ruled that there was no evidence to go to the jury, and directed a verdict for the defendant; and the plaintiff alleged exceptions.