323 Mass. 56 | Mass. | 1948
This is an action of tort for libel. From July 1, 1942, until June 30, 1944, the plaintiff was professor of educational psychology' at Teachers College, Columbia University, but was on leave of absence and was serving as a visiting lecturer and tutor in psychology at Harvard. Beginning in July, 1943, the plaintiff was publicly active in, and "chairman” of, the "Peace Now” movement, an organization whose purpose was to secure an immediate peace with Germany and Japan through negotiation. He continued as "chairman” of the movement until it dissolved in October, 1944. The corporate defendant published a newspaper in Boston known as the Boston Herald. The defendant Cunningham wrote a daily column for the Herald on matters of public interest.
The alleged libels consisted of a series of articles written by Cunningham and published in the Herald between January 30, 1944, and September 29, 1944, inclusive, in which the author in robust and flamboyant language excoriated
After the verdict the defendants moved that the answer of the jury on the issue of malice and the general verdict for the plaintiff be set aside as (among other grounds) against the weight of the evidence. The judge states that upon the hearing of this motion a question arose as to whether the two answers were mutually inconsistent, but that he was of opinion that in any event the second answer was against the evidence and the weight of the evidence. He therefore ordered that the second answer and the general verdict be set aside, that a new trial be had, limited to the question of malice, and that the jury’s answer to the first question and their finding as to the amount of damages should stand. He has reported these orders to be determined by this court before further proceedings in the case. The parties have stipulated, in part, that if the plaintiff’s exceptions to the setting aside of the jury’s answer with respect to malice and to the setting aside of the general verdict should be overruled, judgment should be entered for the defendants. In the view we take, other alternatives contained in the stipulation become immaterial. If there
We construe the judge’s charge as showing that “malice” in the second question put to the jury meant so called actual or express malice, and meant something more definite than merely exceeding the privilege. The word was employed in • a sense approaching its signification in popular usage, and without attempting a more complete definition, we can safely say that at least it required an improper motive.
It is provided by G. L. (Ter. Ed.) c. 231, § 127, that “The court may, at any time before judgment, set aside the verdict in a civil action and order a new trial for any cause for which a new trial may by law be granted . . ..” One of the most common and well recognized grounds in law for the setting aside of a verdict is that it is against the weight of the evidence. When a trial judge is called upon to determine whether a verdict is against the weight of the evidence, the question before him., under the practice in this Commonwealth, is by no means the same as that presented to him at the trial when a motion is made for a directed verdict. The judge can direct a verdict for one of the parties only when there is no evidence, more than a mere scintilla, upon which a verdict for the other party could rest. When some evidence worthy of consideration is present the judge must submit the case to the jury, even though it may appear to him that the preponderance of the evidence on one side is
We have been inveigled into the foregoing restatement of principles long established in this Commonwealth partly because much of the plaintiff’s argument tends to show that he has not understood them and partly because it is necessary to keep them constantly in mind for the purpose of defining the precise issue before us in this somewhat unusual case. It is also necessary to keep constantly in mind that the jury have in substance found that, apart from an improper motive, the defendant Cunningham did not abuse his privilege of fair comment. Fair comment may be severe and may include ridicule, sarcasm, and invective. Hubbard v. Allyn, 200 Mass. 166, 170. Cunningham employed all of these and more. But severity and vigor in expression, whatever evidential effect they may have, are not to be confused with malice in motive.
Certain outstanding facts are either indisputable or are practically undisputed and form the background against which the issue of malice must be judged. The “Peace Now” movement was active during the period preceding the climax of the greatest war in history — a period in which this country was straining to its utmost to prepare a military force adequate to avert the catastrophe of our own defeat and to insure the defeat of our enemies, who
It is plain that, if the articles were honestly and sincerely written, Cunningham entertained a firm belief that the “Peace Now” movement was not only ill timed and utterly futile but that, if not strenuously opposed, it might become
A careful reading of the articles fails to disclose any defamatory statements concerning the plaintiff of a wholly personal or private nature. All relate in some manner to his connection with “Peace Now.” While the issue of truth is not directly before us, it is proper to say, as bearing on malice, that such statements as can be considered defamatory of the plaintiff consist almost entirely of denunciation and characterization expressly founded upon the undisputed facts of the “Peace Now” movement and of the plaintiff’s connection with it. Most of them apply to others in the movement as well as to the plaintiff. Few, if any, can be correctly described as pure statements of fact as to the truth of which there is doubt or such as would be likely to be made with a belief in their untruth. Illustrative of matter of which the plaintiff complains are statements or implications in the several articles that “Peace Now,” of which the plaintiff was the “leading local disciple,” was giving aid and comfort to the enemy; that “any ordinary citizen” speaking and writing as the plaintiff had done “would long since have had business with the F. B. I.”; that the movement was drawing some people “of antiSemitic, Christian Front and even pro-Nazi and pro-Jap leanings”; that the plaintiff was two years behind the trend of American thought, and “we can but wonder what kind of psychology he professes in his classroom”; that he was a “befogged professor”; that talk of negotiated peace was “contrary to United Nations policy and . . . [was] therefore subversive”; that one who dealt in it was “trading with the enemy”; that “Peace Now” was “a sect of sanctimonious theopathetics ”; that the plaintiff was “wearing a borrowed Harvard faculty Mother Hubbard over a spiritual sash from the enemy”; that he was
Notwithstanding the forcefulness and sharpness of the foregoing and other expressions they have little tendency
There was no evidence of malice on the part of the corporate defendant in any way distinct from that applicable to the defendant Cunningham.
In accordance with the stipulation the entry must be
Judgment for the defendants.
It is true that in one or two places in his charge the judge referred to possible recklessness in the publication. We do not think that he intended thereby to set up a test of malice apart from motive. We think that he referred to such recklessness as would indicate an improper motive. See Gott v. Pulsifer, 122 Mass. 235, 239.
This characterization seems to us well confirmed by evidence that the plaintiff and others attempted to advertise by means of posters quoting words of the Pope so wrenched from their context as to give a thoroughly false impression of their meaning.
It is noteworthy that the American Law Institute has restated the law of defamation without using the word malice. Restatement: Torts, cc. 24-27.