279 Mass. 176 | Mass. | 1932
These are three actions for libel tried together by order of the court on motion of the plaintiff. The action against The Globe Newspaper Company was in two counts for the publication in the Boston Globe of false and malicious libels on May 18 and June 22, 1927; that against the Boston Publishing Company was in four counts for libels published in the Boston Traveler on May 18 and 19, 1927, in the Boston Herald on May 19 and June 23, 1927; that against the Boston Transcript Company was in one count alleging the publication in the Boston Transcript of a libel on May 18, 1927. The answer in each case was a general denial, truth and privilege. The jury found for the defendants Globe and Transcript companies, and for the Boston Publishing Company on counts 2, 3 and 4 with a verdict for the plaintiff on count 1, which was subsequently set aside by the judge as against the evidence and the weight of the evidence applicable to count 1. The cases are before this court on the plaintiff’s exceptions.
The evidence shows that in the spring of 1927 a controversy, covering both religion and politics, was being carried on between Charles C. Marshall and Governor Smith of New York. In the April issue of the Atlantic Monthly an open letter from Marshall to Smith was published and it was understood that Smith was to answer this letter in a subsequent issue. The plaintiff, who was at that time employed by the Boston Post as a writer of stories of important events to be published exclusively in that newspaper, sought, without success, information from the treasurer of the Atlantic Monthly respecting this reply.
As a result of this affair, Herbert W. Rainie, solicitor for Merrimack County, New Hampshire, made a complaint against the plaintiff before a justice of the peace for procuring the commission of the crime of larceny by Callahan of eight printed pages of the Atlantic Monthly, whereupon a warrant was issued in New Hampshire. Rainie, then, came to Massachusetts'and swore out a complaint in the District Court of Newton against the plaintiff as “a fugitive from the justice of the state of New Hampshire in that as is alleged in a complaint and warrant issued from said New Hampshire the said Thompson did procure one William E. Callahan to steal property of the value of Six Hundred Dollars.” Whereupon a warrant was issued directing the arrest of the plaintiff for “Being a fugitive from the justice of the state of New Hampshire.” The return on this warrant reads: “Middlesex, ss., Newton May 18, 1927. By virtue of this warrant I have arrested the within named Fred H. Thompson and" now have him before the Justice of the District Court of Newton for examination. I have also summoned the within named witnesses to attend Court, as within directed. Richard J. Goode, Police Officer of Newton.”
Goode testified that on May 18, 1927, he went to the plaintiff’s house with this warrant; that “He met the plaintiff and said: ‘I have got a warrant for you, Fred,’ to which
The plaintiff testified that he was not arrested “to his knowledge” on or about May 18, 1927. On that date Goode, a police officer, came to his house and later he went to the police station with Goode and a group of friends, but he was not booked at the police station to his knowledge although he gave his name and address. He denied he had given bail in the District Court of Newton and he was then shown his answers to interrogatories, which stated he gave bail in the amount of $1,000 furnished by David P. Shea.
The plaintiff appeared in the District Court of Newton and resisted process there. He resisted the extradition process before Governor Fuller, and he sought relief by writ of habeas corpus in the United States District Court.
The alleged libels were published of and concerning these proceedings and are as follows:
In the Boston Globe on May 18, 1927: “Reporter Arrested Newton, May 18 — Fred H. Thompson, reporter for the Boston Post, was arrested today at his home, 150 Pleasant st., Newton Centre, on a warrant charging him with being a fugitive from justice. Herbert W. Rainey, prosecuting attorney of Merrimac County, N. H., who came here this morning to cause Thompson’s arrest, said that the reporter was wanted in Concord, N. H., to answer a charge of grand larceny in connection with the alleged theft from the Rumford Printing Company, printers for the Atlantic Monthly, of two copies of Gov. Alfred E. Smith’s reply to the letter of Charles C. Marshall. J. Edward Silva, captain of the Concord, N. H. Police Department, accompanied Mr. Rainey. The warrant for Thompson’s arrest was put into the hands of Inspector Richard Goode of the Newton Police Department. He went to Thompson’s
In the Boston Herald on May 19, 1927: “Post Reporter Held As Fugitive Charged with Procuring Theft from Atlantic Monthly Fred H. Thompson, 45, a reporter for the Boston Post, was arrested yesterday afternoon at his home at 150 Pleasant street, Newton Centre, on a warrant charging him with being a fugitive from justice from the state of New Hampshire. The arrest was made by Inspector Richard J. Goode of the Newton police department. The warrant was issued yesterday in the Newton Court at the request of Capt. J. Edward Silva of the Concord, N. H., police department and Herbert W. Rainie, solicitor for Merrimack county. The specific charge in the warrant, which is returnable in the Concord municipal court, is procuring the commission of the crime of larceny by William E. Callahan to steal eight printed pages, numbered 721 to 728, of the May, 1927, issue of the Atlantic Monthly, the pages being a copy of the reply of Gov. ‘Al’ Smith of New York to Charles C. Marshall’s letter published in the previous issue. The warrant places a value of $600 on the eight pages. Inspector Goode took Thompson to the Newton police headquarters after serving the warrant, and the latter was booked as a fugitive from justice. Thompson was immediately released on cash bail of $1,000, the receipt being made out to David P. Shea, an employe of the Boston Post.”
In the Boston Herald on June 23, 1927: “Extradition Is Stayed By Writ Counsel for Accused Post Reporter Wins Plea in U. S. Court Arguments Will Be Heard On
In the Boston Transcript on May 18, 1927: “Post Reporter Arrested As Fugitive From Justice Wanted in New Hampshire on Charge of Procuring the Commission of Larceny of ■ Pages of Atlantic Monthly Containing Governor Al. Smith’s Letter Fred H. Thompson, a reporter for the Boston Post, was arrested this afternoon at his home at 105 Pleasant street, Newton Center, on a warrant charging him with being a fugitive from justice from the State of New Hampshire. The arrest was made by Inspector Richard J. Goode of the Newton police department. The warrant was issued today in the Newton court at the request of Captain J. Edward Silva of the Concord, N. H., police department and Herbert W. Rainie, solicitor for Merrimack County. The specific charge in the warrant, which is returnable in the Concord municipal court, is procuring the commission of the crime of larceny by William E. Callahan to steal eight printed pages, numbered 721-728, of the May, 1927, issue of the Atlantic Monthly, the pages being a copy of the reply of Governor Al Smith of New York to Charles C. Marshall’s letter published in the previous issue. The warrant places a value of $600 on the eight pages. Thompson, who is forty-five years old, was booked at police headquarters in West Newton and was immediately admitted to cash bail of $1000. Thompson will be arraigned in the Newton Court tomorrow morning. The prosecutor said that the value of the printed pages as
The plaintiff further testified as to his mental distress resulting from these articles and from the coldness from those he approached for stories; also that this distress affected his ability to get stories, such assignments were given him with less frequency, and that about two years after the publications complained of he lost his position on the Boston Post.
The plaintiff in his brief states that “There was no substantial dispute at the trial as to the facts except whether the plaintiff had been, in fact, arrested. The answers set up truth and privilege and the main question in these cases arises on the correctness of the rulings by the judge as to what evidence, as a matter of law, justified these defences and also what, in law, constituted conclusive proof of an arrest.” This defence is based on the rule of law which protects fair and accurate reports of judicial proceedings where made without express malice. The plaintiff contends that the only evidence in support of these answers was the complaint in the District Court and the warrant issued thereon. These were admitted subject to the exception of the plaintiff, the judge stating that “inasmuch as the teste was under the printed name of . . . [the judge of the District Court of Newton], it was a record of a judicial proceeding and the regularity of its issue could not be inquired into collaterally.” Later when the clerk of the District Court of Newton was on the stand, the plaintiff sought to show what happened at the time the warrant was issued, but the judge refused to let him testify and said, “It [the warrant] has been admitted under the seal of the court with the signature of the clerk as a true copy. I do not see how you can show that it is not a record of the court. I should rule that you are not permitted to show whether the justice was there or was not there . . . .” A similar question to Rainie, the solicitor of Merrimack County, to show the absence of the judge, was likewise excluded.
These rulings were again questioned in the plaintiff’s requests for rulings numbered 10, 11, 12, 13, 14, 15, which
The plaintiff contends that the issuance of a warrant by a clerk of court on complaint sworn to is not a judicial proceeding within the privilege rule, and he sought to show that no judge was present when the warrant was issued in this case. On the ruling by the judge that such evidence would contradict a court record, he advances the theory that that rule of law based on public policy does not override the public policy of .the privilege rule, on the assumption that a clerk of court has no authority to issue warrants under G. L. c. 276, § 16, relative to rendition. By the express provisions of G. L. c. 218, § 33, “A clerk . . . may receive complaints, administer to complainants the oath required thereto, and issue warrants, search warrants and summonses, returnable as required when such processes are issued by said courts.” See Commonwealth v. Posson, 182 Mass. 339. There is nothing to show that such authority does not extend to the issuance of a warrant under G. L. c. 276, § 16, and that a clerk is without authority or jurisdiction to act in such cases. Although clerks of court are not specifically mentioned in that section, under their general authority as given by said c. 218, § 33, they would come within § 16 of said c. 276. If it be assumed that clerks cannot issue warrants under the rendition statute, it is
The plaintiff also excepted to the admission in evidence of the complaint and warrant issued in the District Court of Newton. The complaint and the warrant were clearly admissible on the issue of truth or to show that the defendants had published a fair and accurate report.
The defendants also offered and the judge admitted certified copies of the extradition papers in due form, over the plaintiff’s objection and exception. These proceedings were also relevant to establish the accuracy of the allegations in the articles published in the Boston Herald on June 23, 1927, and in the Globe on June 22, 1927.
When the plaintiff sought to show that there was no crime charged in the extradition papers, the judge ruled: "My view of it is that these issues do not involve what the law
On the question of truth the plaintiff’s requests for rulings numbered 6, 7 and 33 present the theory that the newspapers had indorsed, assumed, and repeated the criminal charge and that the defence of truth could not be established without satisfying the jury that a theft was actually committed. But the defendants under their pleas justifying publication on the ground of truth were not so obligated. This is established by Commercial Pub. Co. v. Smith, 149 Fed. Rep. 704, where the court said at page 706: “The publication of the fact that one has been arrested, and upon what accusation, is not actionable, if true.” See also Stacy v. Portland Publishing Co. 68 Maine, 279, 286; Hanson v. Bristow, 87 Kans. 72. The defendants had reported the fact of an arrest and the fact of the charge on which the arrest was made. There was no indorsement of the truth of the charge.
The plaintiff’s request numbered 8 was as follows: “The question in these cases is not what the defendants intended to charge, but what in fact they did charge and what the public who were to read the article might reasonably suppose they intended to charge.” This request, as the plaintiff argues in his brief, was to direct the jury to the phrase “fugitive from justice.” But on this aspect of the case the jury were fully and accurately instructed in the following language: “Now, the words ‘fugitive from justice’ are not to be given any technical or narrow construction, but are to be taken as ordinarily understood .... It is for you to say, taking those articles as a whole, giving to the words, phrases and language used therein the commonly accepted and understood meaning of those words, whether it was a true statement.”
The plaintiff also argues on the following ruling in the charge: “I further instruct you as a matter of law that the action of Inspector Goode from all the evidence in the case,
The plaintiff’s request numbered 4 relates to the matter of truth as well as privilege and is as follows: “It is no defence to a publication otherwise libellous that the newspaper reports what others have said or done. If the charges thus published are not true or otherwise privileged, it i's no defence to the action that the publication is literally correct in stating the charges; in other words, unless the newspapers can justify as true the charges set forth in the papers or statements reported by them, there is no defence to the action. This, of course, does not apply to fair, impartial and accurate reports of proceedings before a court, if there have been any such.” The judge dealt fully with truth and privilege and gave clear and adequate instructions as to the necessity of a fair and accurate report.
Request numbered 5 relates to the distinction between the privilege of judicial proceedings themselves and the privilege which extends to the reporting of judicial proceedings. The judge charged on this aspect of the case: “Now, the privilege is not the privilege that extends to the judicial proceeding itself, that is, the judge or the counsel .in the case, the clerk of the court; there is a certain privilege attached to that, but that is not the privilege we are speaking of here; nor is it the privilege that is claimed by the defendants in these cases.” So far as the above requested instructions were concerned, it was not essential that the judge should adopt their exact phraseology. It is sufficient if the principles were rightly stated to the jury and correct rules prescribed to aid them in the decision of the questions in issue. These requests were in substance given. Parsons v. Martin, 11 Gray, 111, 114. Norwood v. Somerville, 159 Mass. 105, 112. Graham v. Middleby, 185 Mass. 349, 354. No exceptions were taken to the portions of the charge as given.
In order to defeat the defences of truth and privilege
At the close of the charge counsel for the plaintiff said: “I also except to your instructions about whether the proceedings after those complained of in the declarations were judicial proceedings or were fair and impartial, my point being that they were purely malicious, and, therefore, whether partial or impartial has nothing to do with it.” So far as this part of the charge is concerned, it was pertinent to show that the subsequent articles which the plaintiff complained of were themselves reports of judicial proceedings.
The plaintiff also made several other requests for rulings on the issue of malice which were refused. Requests numbered 19 and 29 assert the doctrine that a newspaper may
Request numbered 20 relates to the possible inference of malice from the language of the publication itself. This was adequately dealt with in the charge.
Request numbered 21 relates to the publication of a retraction or adequate notice of the fact that the plaintiff had been acquitted in New Hampshire. This request was rightly refused.
The plaintiff also offered as evidence of malice an article published by the Globe Newspaper Company on May 8, 1927, ten days before the arrest of the plaintiff and ten days before the publication of the article complained of. The judge excluded this evidence and also the testimony of the plaintiff that he had been recognized as the person referred to therein. This publication reported, in part, a bill in equity filed by the Atlantic Monthly Company against the Post Publishing Company in the District Court of the United States for the District of Massachusetts. The plaintiff did not contend that the article reported the bill in equity either incorrectly or unfairly, nor that the article contained the name of the plaintiff. Prior defamatory publications of the defendant might be competent evidence on the issue of malice, Faxon v. Jones, 176 Mass. 206, but there is nothing here to show that the defendant knew that the plaintiff was the person referred to, assuming that the reference therein could be construed as of a defamatory nature. The fact that other persons recognized the plaintiff as the one referred to is of no consequence. The prior defamatory publication as evidence on the issue of actual malice must necessarily be predicated on knowledge by the defendant of the actual party referred to.
The plaintiff also took exception to the exclusion of several items of evidence on what he calls in his brief “imputed malice,” and offered to prove that one Drury, who
The plaintiff further argues that it was erroneous to admit in evidence the publication by the Boston Post of the Smith letter. It is his contention that the only effect of the admission of this evidence was to create an atmosphere prejudicial to the plaintiff as the basis for an argument that the newspaper had violated the ethics of business and that he should be held responsible therefor, if not legally yet ethically. This evidence was admissible on the issue of truth in view of the fact that the Boston Globe in the article complained of which was published on May 18, 1927, contained a statement that "The publication by the Boston Post of Gov. Smith’s reply to Marshall took place several days before the date set by the Atlantic Monthly.”
On the issue of damages, the plaintiff also took several exceptions to the exclusion of evidence and likewise to refusal to give rulings numbered 22, 23, 25, 26 and 28. But these exceptions become immaterial in view of the fact that the jury returned general verdicts for the defendants. Oak Island Hotel Co. v. Oak Island Grove Co. 165 Mass. 260, 261. Todd v. Boston Elevated Railway, 208 Mass. 505, 506. Adams v. Hayden, 236 Mass. 454, 460.
Exceptions overruled.