324 Mass. 478 | Mass. | 1949
This is an action of tort for libel against the publisher of a newspaper. The declaration contains three counts. Counts 1 and 2 are based on alleged libels published by the defendant on February 12, 1946. The third count is based on an item published by the defendant on March 28, 1945. To the first and second counts the defences of truth and privilege were pleaded. The defendant demurred to the third count and the demurrer was overruled. The case then went to trial on all of the counts. On counts 1 and 2 verdicts
The Plaintiff’s Exceptions.
The alleged libels on which the first and second counts were based consisted of the following items of news, which the defendant concedes were published in its newspaper, The Boston Herald, on February 12, 1946: “bus veto is upheld, 133-89; willis brands deal ‘mess’ — Threat Told to Use ‘Jim Tobin’ to Seal Demand on Airline — The Massachusetts House sustained late yesterday Gov. Tobin’s veto of additional bus service to Logan International Airport after three hours of debate in which Speaker Frederick B. Willis exposed members of the Governor’s personal and political family as being connected with a ‘mess that smells, and smells badly’” (count 1), and “tobin bus VETO UPHELD, 133-89; WILLIS BRANDS DEAL A ‘MESS’ — Tells Threat by Sutcliffe to Airline — Says ‘Jimmy Tobin’ Name Used as Lever in Contract Demand — The Massachusetts House sustained late yesterday Gov. Tobin’s veto of additional bus service to Logan International Airport after three hours of debate in which Speaker Frederick B. Willis exposed members of the Governor’s personal and political family as being connected with a ‘mess that smells, and smells badly’ ” (count 2).
The following facts, most of which do not appear to be in dispute, will be helpful to an understanding of the questions presented for decision: The plaintiff is the brother of Maurice J. Tobin who, at the time the alleged libels were published, was Governor of the Commonwealth. Sutcliffe Storage and Warehouse Company, a Massachusetts corporation (hereinafter called Sutcliffe), on July 17, 1945, filed an application with the department of public utilities for a
1. Several of the plaintiff’s exceptions relate to the admissibility of communications sent to the department of public utilities and to the department of public works. On August 23, 1945, while Sutcliffe’s application for a certificate of public convenience and necessity was pending before the department of public utilities, Mr. Shattuck, a member of the House of Representatives, sent a letter to the secretary of the department which is set forth in the footnote.
On October 6, 1945, Sutcliffe sent a letter to the department of public works enclosing a suggested form of a contract to be entered into by it and the Commonwealth by which Sutcliffe was to be given an exclusive concession “to provide and operate all ground transportation” - at the airport. While the matter of granting the concession was under consideration, several communications were sent to that department urging that it be denied. One was a letter from Robert F. Bradford, then Lieutenant Governor of the Commonwealth. Another was a letter from an official of one of the airlines. There was also a brief which had been submitted to the department by the counsel for Railway Express Agency, Inc. Referring in his letter to Sutcliffe’s pro
All of the foregoing communications were admitted subject to the plaintiff’s exceptions. We are of opinion that these exceptions must be sustained. The gist of the alleged libels on which the first and second counts are based is that the plaintiff was “connected with a 'mess that smells, and smells badly.’” Under its answer the defendant had the right to introduce evidence of the truth of this statement which, if proved, would be “a justification unless actual malicú is proved.” G. L. (Ter. Ed.) c. 231, § 92. The alleged libels were such that a very broad field of inquiry was opened up by the defence of truth. It would be difficult to conceive of a word which is less susceptible of precise definition than the word "mess.”
2. Several exceptions relate to the admissibility of certain opinions rendered by officials in the department of public utilities which were admitted in evidence. This evidence consisted of the following: An opinion by one Kirley, director of the division of railway and bus utilities in the department, to whom the commission had referred the Sutcliffe application; the opinions (majority and dissenting) rendered by the commissioners of the department in connection with the granting of the Sutcliffe application and the denial of that filed by the Elevated. In his report to the commission Kirley stated that “There seems to be little evidence of public convenience and necessity presented by the petitioner.” The dissenting opinion of one of the commissioners on the matter of the Sutcliffe application includes the following: “There is no evidence to indicate that the applicant has had experience in the common carriage of passengers, and . . . [the testimony shows] that they were engaged in the business of warehousing automobiles. . . . The complete inexperience of the applicant in the passenger transportation field is evidenced by the route requested, the proposed fare of seventy-five cents and the type of ve
3. Subject to the plaintiff’s exception, eleven checks and vouchers were introduced by the defendant showing that the Revere Racing Association, Inc., which operates the Wonderland Dog Track in Revere, had paid $13,000 to William R. Sutcliffe between March 19,1945, and December 31,1945. These payments were for “public relations and publicity services.” This evidence was not relevant to any of the issues on trial. The plaintiff was not shown to have received any portion of this money nor did the evidence have any tendency to prove that Sutcliffe’s attempt to obtain an exclusive franchise was a mess which “smells badly.” The evidence was not shown to have any connection whatsoever with Sutcliffe’s efforts to obtain a franchise. Moreover, the payments were made to William R. Sutcliffe individually and not to the corporation. It is true that there was evidence that the speaker of the House of Representatives in his speech advocating the overriding of the veto referred to the fact that William R. Sutcliffe had received $7,000 or $8,000 from a dog track and “wondered why that had happened.” But that did not make the evidence of this transaction com
We are of opinion that the admission of the evidence discussed above was prejudicial to the plaintiff. We have discussed the principal questions argued by the plaintiff. Other exceptions argued by the plaintiff need not be discussed since these questions may not arise in the same form if the case should be retried.
„ ,. , Exceptions sustained.
The Defendant’s Appeal.
The only question presented by this appeal is the correctness of the order overruling the defendant’s demurrer to the third count of the plaintiff’s declaration. That count alleges that on March 28, 1945, the defendant published in its newspaper, The Boston Herald, the following libel: “‘clear it with jimmy’ or else — If you don’t ‘clear it with Jimmy’ your chances of getting anything out of this administration in the line of patronage are not good. Jimmy is Gov. Tobin’s younger brother and according to all available reports, he rules the patronage with an iron hand arid if you weren’t right in the election, your chances of getting a job can be discounted.” There then followed a colloquium identifying the plaintiff as Jimmy. The innuendoes stated that the alleged libel conveyed the meaning that the plaintiff “was soliciting and receiving bribes . . . and . . . had committed serious wrongs involving moral turpitude.” The sole ground of the demurrer was that the count failed to state a cause of action.
It is settled that a demurrer to a declaration in libel cannot be sustained unless the words are not reasonably capable of any defamatory meaning. Twombly v. Monroe, 136 Mass. 464, 469. Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34, and cases cited. Epstein v. Dun & Bradstreet, Inc. 306 Mass. 595, 596. In determining whether a writing is defamatory “The test is whether, in the circumstances . . . [it] discredits the plaintiff in the minds of any consid
So ordered.
The application to the city council for a license was filed by Sutcliffe on March 26, 1945.
The application for this license was filed by the Elevated on June 4, 1945. A previous application was filed by the Elevated on December 6, 1944, but no action was ever taken on it by the city council.
“I have received the notice of the hearing to be held on Wednesday, September 5, on D. P. U. 7312, the petition of Sutcliffe Storage and Warehouse Company, Inc., for a certificate of public convenience and necessity for the operation of motor vehicles from the Hotel Statler through the Sumner Tunnel to Porter Street and return. I understand that the Boston Elevated Railway has before the Boston city council a petition for operation of motor vehicles over the same or substantially the same route. As this route is entirely within the area served by the Boston Elevated Railway, and as the people of the district have assumed responsibility for the operating deficits of the Boston Elevated Railway, I believe that the Sutcliffe petition should be denied, and I wish to be so recorded. I shall be unable to attend the hearing.”
One dictionary has defined the word as follows: “A confused or disagreeable mixture of things; a hodgepodge. Hence, a situation resulting from blundering or from misunderstanding; a muddle; botch.”
These words, which are quoted, are undoubtedly a paraphrase of an expression attributed to President Franklin D. Roosevelt at the Democratic Convention in 1944. The expression which he is said to have used is “Clear everything with Sidney fHillmanJ” and it referred to the necessity of obtaining the latter’s approval of the nominee for Vice-President. See Bartlett’s Quotations (1948 ed.) 940.