217 Mass. 213 | Mass. | 1914
The defendant published in its newspaper a statement that it was alleged that the plaintiff had committed an assault upon a woman named, which had resulted in stated personal injuries to her. For this publication the plaintiff had a right of action, unless it was privileged, or unless it was true, or unless for some other reason it was not libellous. The mere fact that the charge against the plaintiff was not made by direct averment but only by saying that such an allegation had been made was not material; for the statement of unfounded charges is none the less actionable that it is made only by way of repeating them as having been made by others. Kimball v. Post Publishing Co. 199 Mass. 248, 251, et seq. Metcalf v. Times Publishing Co. 20 R. I. 674, 678. Park v. Detroit Free Press Co. 72 Mich. 560. Popham v. Pickburn, 7 H. & N. 891. Davison v. Duncan, 7 El. & Bl. 229. Purcell v. Sowler, 1 C. P. D. 781, and 2 C. P. D. 215. Nor have the publishers of newspapers any greater right to give in this way currency to false charges than other persons. They have no peculiar rights or privileges. Sheckell v. Jackson, 10 Cush. 25, 26. Burt v. Advertiser Newspaper Co. 154 Mass. 238, 243.
The defendant contends that this was a fair report of the fact that an action for damages had been brought against the plaintiff by the woman named, and that in her declaration she had made charges against him which were fairly and correctly stated in the article complained of; that her writ and declaration had been made the subject of judicial proceedings in open court; and therefore that the article was privileged as a fair and correct report of judicial proceedings published in good faith and without malice. This is the main, though not the only contention now relied on by the defendant.
It is not open to dispute that a fair report in a newspaper of pending judicial proceedings is proper, and that this privilege extends to all matters which have been made the subject of judicial proceedings, though such proceedings may be merely preliminary or interlocutory, or even ex parte. For example, it
But this principle is limited to matters which really have been made the subject of judicial action. It does not give the right to .publish statements made in declarations or other papers filed in court on the ground merely that they have been placed on the files of the court, or until they have been brought to the attention of the court and some judicial action has been taken upon them. Cowley v. Pulsifer, 137 Mass. 392. As was said ,by Mr. Justice Holmes in that case, the reasons for allowing fair reports of the proceedings of courts of justice “have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity.” In that case, to be sure, the paper had been neither presented to the court nor entered upon the docket. But the fundamental ground of the decision was that
The averments of the declaration mentioned in the defendant’s article had not been made the subject of any judicial action within the rule which we have stated. The woman named in that article had brought an action against this plaintiff, but had failed to enter it in court upon the return day thereof. She then presented to the court a petition that she be allowed to make a late entry of her writ and declaration. Her petition was allowed by the court upon consent of the respondent thereto. But this was merely a permission given to that plaintiff to make a late entry of her ■ action, under R. L. c. 173, § 11. It involved no examination of the averments of her declaration in that action, no passing upon their sufficiency, no consideration of the question whether she was entitled to any special relief pending the action, or of the question whether any special process should be issued against the defendant therein under the provisions of R. L. c. 167, § 80, or otherwise. There was no question as to the making of any
We need not advert to the fact that although the defendant has attempted to set up this defense, there was in its article no reference to any judicial proceedings, not even to the permission to make a late entry which it has relied on. It published barely the charges made in the declaration against this plaintiff,-and it did nothing more. It would be hard to maintain that its article could be said in any sense to have been a fair report of a judicial proceeding (if there had been such) of which it made no mention. But we prefer to rest our decision upon the broader ground which has been stated.
It follows that the defense of privilege fails; and we need not consider whether that defense, if it had been available, would have been destroyed by the inaccuracy of the defendant’s statement that the charge in the woman’s declaration was made against this plaintiff, when in fact it was another person who was named in the declaration, though not in the writ.
The article in question charged the plaintiff with a criminal offense. It was libellous on its face, and the judge correctly so ruled. Such a ruling, as appears by the original papers on file, was made in Burt v. Advertiser Newspaper Co. 154 Mass. 238, and its correctness was assumed by this court without discussion. It is only when the language of an alleged libel is open to different constructions, or when the conduct charged may have been inno
It has been suggested rather than argued that, because the judge who overruled the demurrer to the amended declaration said in his memorandum that the question of libel was for the jury, that question should have been left to the jury. Plainly this is not so. The decision overruled the demurrer; the reasons which influenced the judge in making that decision were not a part of the decision itself and were not afterwards decisive. This needs no discussion or citation of authority. The appeal from that decision has not been argued.
The testimony of Doctor Trays as to the plaintiff’s sickness was stricken out and the jury were directed to ignore it. This cured any possible error in the admission of that evidence, even though it was done only in the judge’s charge to the jury. That was the time when such a direction would be likely to impress them forcibly, especially as that testimony bore only, upon the question of damages. The amount of the verdict is not so great as to excite a suspicion that the defendant may have been aggrieved in this respect.
The case was submitted to the jury with apt and sufficient instructions, and we find no prejudicial error in the proceedings.
Exceptions overruled.