285 Mass. 344 | Mass. | 1934
This is an action of libel brought against the defendant for a publication in the Boston Traveler. The answer sets up truth and privilege. At the trial in the
The alleged libel here relied on was published in the Boston Traveler on May 18, 1927, in the following form: “Arrest Post Reporter in Smith Letter Case Watchman at Atlantic Monthly Plant Also Held, Accused of Stealing Copy for Boston Newspaper Man Fred H. Thompson, a Boston Post reporter, of 150 Pleasant Street, Newton Centre, and William E. Callahan, watchman of the Rum-ford Press, Concord, N. H., were arrested today in connection with the larceny of copies of the Atlantic Monthly containing Gov. Al. Smith’s article on Catholicism. Thompson was arrested by Inspector B. J. Goode of the Newton police force on a fugitive from justice warrant. Callahan was arrested at Concord charged with larceny. The warrant for Thompson was issued today in the Newton district court at the request of J. E. Silva, chief of police of Concord, N- H., and Herbert W. Rainie, solicitor of Merrimac county, N. H. The specific charges in the warrant alleged that Thompson ‘procured the commission of larceny by Callahan of eight printed pages, for which he gave Callahan $600.’ Thompson was bailed by David P. Shea in $1000, for hearing tomorrow.”
The plaintiff contends that the defendant has not made out the defence of privilege to publish the facts relating to the issuance of the warrant on the criminal complaint which had been made, despite the fact that the privilege of such a publication was upheld on similar facts in the cases reported in 279 Mass. 176, 186-187. He contends that the opinion in those cases proceeded on a misconception of the point sought to be made which in effect as it was there, and as now understood, is that if no judge was present when the warrant was issued the proceeding was not a judicial one within the privilege rule. The plaintiff then
The plaintiff further complains that the report of these judicial proceedings was not fair and accurate nor true. See Sweet v. Post Publishing Co. 215 Mass. 450, 452, 453. His principal contention in this respect is that the article alleged that the plaintiff and one Callahan were arrested in connection with “the larceny of copies of the Atlantic Monthly”; and that the warrant charged that the plaintiff “procured the commission of larceny by Callahan of eight printed pages, for which he gave Callahan $600.” Although no such express charge was contained in the warrant, a fuller specification of the charges appears in the complaint, which was a part of the same proceeding. The fact, therefore, that these charges were not expressly contained in the warrant would not be material. No question for the jury was presented by reason of the fact that the charges as set forth in the alleged libel differed somewhat from those in the complaint. The article as a whole recited that the plaintiff was charged with procuring the crime of larceny. That this was the fact appears from the complaint. The statements in the article as to the method by which this was accomplished did not change the nature of the crime charged, nor constitute an independent defamatory imputation. Bresslin v. Sun Printing & Publishing Association, 177 App. Div. (N. Y.) 92.
The plaintiff further contends that the fact of his arrest presented a question for the jury, and that a verdict in favor of the defendant could not properly have been directed on that issue. The cases of Mowry v. Chase, 100 Mass. 79, and Commonwealth v. Merrick, 255 Mass. 510, are cited by the plaintiff in this connection. Although these cases hold that the fact of an arrest presents a question for the jury, it was recognized therein that in an appropriate case this question might be ruled upon as matter of law. It was considered in 279 Mass. 176, 188, 189. The charge there was not excepted to, and hence the correctness of the ruling was not open to the plaintiff. To constitute an arrest there must be either a physical seizure of the person by the arresting officer, or a submission to his authority and control. Relying upon the second part of this proposition the plaintiff seeks to avoid a finding of an arrest upon the ground that he did not know that he was arrested, and hence cannot be found to have submitted to the authority of the officer. The return of the officer on the warrant was evidence of the fact of an arrest, see Fisher v. Hamilton, 49 Ind. 341, but it would not be conclusive of the fact in this proceeding. See Wigmore on Ev. (2d ed.), § 1664. Compare Simmons v. Richards, 171 Mass. 281. Although the plaintiff testified that he was arrested, he contends that he did not learn of that fact at the time of such arrest but was informed of it afterwards. He was entitled to be informed of his arrest at the time it occurred, and if the evidence upon that question was conflicting an issue of fact was presented for the determination of the jury. The plaintiff testified, in substance, that at the time of his arrest he did not understand that he had been arrested, but had since been informed that he was arrested in connection with the Smith letter case;
It appears from further testimony that the plaintiff had learned that the Rumfonj Press in Concord, New Hampshire, was working for the Atlantic Monthly in connection with the printing of the Smith letter; that he went to the treasurer of the Atlantic Monthly and attempted to obtain a copy of Mr. Smith’s reply to an article written by one Marshall which was to be printed in the Atlantic
Ordinarily when a case is heard by a jury and the facts are in dispute, it is for the jury to find the facts upon the entire evidence and the reasonable inferences to be drawn therefrom. In the present case, although the plaintiff testified that he was not informed of his arrest, it does not follow that the trial judge was required to submit that question to the jury. It is to be determined upon the evidence so far as pertinent to that issue. His entire testimony, including the visit by the officers to his house, the conversation which took place at that time, his trip to the police station with the officers, the furnishing of bail by Shea, the plaintiff’s testimony that he knew it was some proceeding involving a person by his name, shows that he must have known that he was arrested. Even if it be assumed that when the officers called at his house he was not then informed of his arrest, it is clear from his testimony as to what occurred thereafter, and the fact that at the station house he was admitted to bail and released, that he had been arrested. No other reasonable conclusion can be reached from the known facts and his entire testimony. Notwithstanding his denial that he knew he had been arrested, it is plain, as matter of law, from his further testimony, hereinbefore recited, that he had full knowledge of the fact of his arrest. The trial judge accordingly was required to rule as matter of law that the fact of his arrest was admitted by him. In view of the conclusion reached upon this question the cases cited by the plaintiff are not applicable. See Mowry v. Chase, 100 Mass. 79, 85; Carleton v. Bickford, 13 Gray, 591; Commonwealth v. Gangi, 243 Mass. 341, 345; Commonwealth v. Merrick, 255 Mass. 510, 512.
The truth or privileged nature of the article as to all
The plaintiff, in order to meet and overcome the defence of truth and privilege, contends that there was malice in the publication of the article, and offered certain evidence to prove this fact. Thompson v. Globe Newspaper Co. 279 Mass. 176. He testified that Harold F. Wheeler was managing editor of the Boston Traveler at the time of the publication, and that in the spring of 1932 he had a talk with Wheeler about the article. He then offered to show that Wheeler said he was sorry he put it in, but he was forced to do it. This evidence was rightly excluded. The statement was made several years after the publication. Besides there was no evidence to show that Wheeler had any authority to make any statement which might be construed as indicative of the fact that the defendant corporation maliciously published the article, nor that the statement was made in the performance of his duties. See American Publishing Co. v. Gamble, 115 Tenn. 663, 686; Reusch v. Roanoke Cold Storage Co. 91 Va. 534, 537; McClellan v. L'Engle, 74 Fla. 581, 592. The plaintiff further contends that on the issue of malice it was error to permit the witness Wheeler to testify that the arrest of a reporter of the Boston Post on the charge of having procured the larceny of the Smith article was “a matter of considerable news interest"; that the exclusion of a question to Wheeler as to what effort he made to verify any statements in the paper was improper, and that to exclude questions to Wheeler as to whether he had ever heard anything in the course of his career to lead him to think that the statements in the article were justified, and whether he had
No error of law appears in the conduct of the trial. The entry must be
Exceptions overruled.