Sweetland and Johnson, JJ., dissenting.
Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.
Action by Pietro Cardarelli against the Providence Journal Company. Judgment for plaintiff, and defendant brings exceptions. Overruled.
See, also, 80 Atl. 590.
Frank H. Wildes, for plaintiff.
Francis B. Keeney, Seeber Edwards, and Edwards & Angell, for defendant.
BLODGETT, J. After verdict for the plaintiff in this action of libel, in which the truth of the publication complained of as libelous was pleaded by the defendant, the cause is brought here on defendant's exceptions to the denial of a new trial by the superior court, and also because of alleged error in the admission and rejection of testimony and in the instructions and refusals to instruct the jury by the trial justice.
The articles complained of were published in the Providence Daily Journal April 19, 1909, and the Evening Bulletin of the same date, and in the same papers on April 26, 1909, and are set forth in the declaration as follows:
"Constable Peter Cardarelli offers newspaper man protection, believing him poker sharp planning to open joint. Says he already has one unlicensed saloon on his list. This constable, Peter Cardarelli, thought he was talking to a poker sharp, who was planning to start a 'joint' in Centredale. Not only did he offer to assure protection for a financial consideration, but he also wanted the gambling place on his own land in a shack he would build for the purpose. Cardarelli declared that he already had one client of this sort on his list—the proprietor of an unlicensed drinking place up Waterman avenue. Cardarelli, who is known as Pete by all the inhabitants of North Providence, happened to get the impression when he was talking to the newspaper man that his interviewer was a poker sharp who wanted to open up a gambling joint in Centredale.
"The obliging constable promised the supposed gambler that he would give him full police protection if he should open a place on his beat. By way of proof that he could furnish such protection, he named a place under his protection that was selling beer without a license.
"I will tip you off.
"Cardarelli was especially anxious that the supposed gambler should not make any attempt to get protection through Chief Willis.
"I will know the moment a raid is planned and I will tip you off he said. Willis once got after this beer place that I'm protecting and I simply went up there and tipped them off, I'll do the same for you. The newspaper man approached Cardarelli first on Saturday night. At that time the constable was standing in front of the Centredale Hotel. Within the hotel, musicians were playing a lively tune and shouts could be beard for half a block. Cardarelli said he would interfere in a minute if he dared, He said he couldn't even make an attempt to stop Sunday selling, for if he did, his head would be cut off. When asked about the chances for opening a poker room, where some big players from Providence could get into a lively Sunday game without any possibility of interference, Cardarelli thought for a minute, and then said he knew of a plan that would just suit. He explained that he owned some 30 acres of woodland about a quarter of a mile back from Waterman avenue, near Sawin avenue and that he could build a shack on it and let the poker players use it. If any questions were asked, he said he could tell the people that he was going to put his engine in the shed.
"Price Wouldn't Be High.
"He said he could furnish complete protection, and that his price wouldn't be so high that he would get rich in a minute.
"Cardarelli confided to the newspaper man that he was practically certain of being elected chief of police at the next election, and that even better protection could be given after that.
"At the conclusion of the conversation he told the reporter, confidentially, that the reason why he wanted to close up the saloons which were running in Centredale on Sundays was because the saloon keepers had tried to make him lose his job.
"Cardarelli repeated all these statements yesterday in the presence of another witness.
"The reporter then went to Centredale to see if conditions had improved since last Sunday, when Constable Peter Cardarelli watched the operations, and told the reporter that such a condition was allowed because some one was getting his 'rake-off.'
"Constable Charles H. Brown is a new man, appointed to take the place of Constable Cardarelli, who last week offered to give protection to the Journal man, thinking him a poker sharp preparing to open a poker joint."
The declaration also avers that at each of the times complained of the plaintiff was a duly elected and commissioned constable of said town of North Providence and was in the receipt of an income also as a paid member of the police force of said town for services as an officer on Saturday nights and Sundays in said town, and that by reason of said publications he has not only been greatly damaged in his reputation, but has lost these positions and offices thereby and the income resulting therefrom.
The evidence for the defense is to the effect that the plaintiff made the statements and offer complained of to one of the defendant's reporters, while the plaintiff denies that any such interview ever occurred, or that he ever saw or knew the reporter until the latter appeared as a witness against the plaintiff at a hearing before the town council of said town on May 3, 1909, called for the purpose of investigating these charges against the plaintiff.
In his decision denying the motion for a new trial, the trial justice says: "An irreconcilable mass of conflicting testimony is presented. The jury found for the plaintiff. The burden of establishing the truth of the publications is upon the defendant. It is by no means clear that the defendant has answered the requirement of the law in this respect. The court cannot say, as a matter of law, that the jury was not warranted in returning a verdict for the plaintiff."
We are compelled to the same conclusion. It is evident that both accounts cannot be correct.
The verdict in this case is not difficult to understand, inasmuch as an examination of the testimony given by the defendant's reporter Underhill upon his direct examination at the trial shows many admitted falsehoods told by him to the plaintiff and others, by this term meaning statements admittedly known to be untrue and which were made with intent to deceive the plaintiff and others, viz.: Page 258: "Q. Where are you employed? A. Providence Journal. Q. How long have you been employed on the Providence Journal? A. Since the 15th of June, 1908. Q. In what capacity? A. A reporter. Q. What particular line of reporting do you do? A. At present I have charge of the Department of State Politics." Page 264: "Then so as to throw him off the track as to my real identity I told him that I was a poker player. I said, 'Do you—is there any gambling out here?' He said, 'Oh, there is a little, not very much. Once in a while I see the boys having a game.' I think he said near the police station, but he said there was none out there to speak of. I said: 'That is my line. I am a poker player.' And I told him that the Providence Journal had been conducting so rigorous a campaign against gambling and gamblers in the city that we fellows in the city had been compelled to shut up and get out, and I told him I had come out there for the purpose of looking the ground over to see if perhaps I couldn't find some place where I could start up a little game out there. Told him it was convenient to the city because of the trolley lines and it seemed to be in a somewhat out of the way place. This conversation took some time, a good deal more time than I have taken to tell it. And I asked him if he knew of a place where I could start up such a game. I had in mind—oh, some room over a store, or something of that sort. And he promptly replied that he knew of just the sort of a place that I was looking for. He said he had a good place where we could run a Sunday game. Well, I had had no thought of a Sunday game; but, seeing he began to talk the way I wanted him to talk, I took the new lay he gave me and began to talk of a Sunday game." Page 266: "Q. Was anything said by you about your having a partner? A. Yes, I told him I had a partner, and I told him I furnished the money to run the game; that my partner was the practical man of the two. I told him I would have to talk the matter over with him, but I thought the proposition looked very favorable, that we would come out Oh, I asked him where I could see him the next afternoon." Page 275: "Q. By the way, do you play poker? A. I do not. Q. Do you know how to play poker? A. I do not." Page 278: "Q. What did you endeavor to ascertain from McCormack? A. I asked him if Mr. Cardarelli was on that beat that afternoon. He told me, no, he had been transferred to Woodville. I asked him if Cardarelli had some woodland and told him
I was interested in buying some woodland and that Cardarelli had some." Page 279: "Q. Now tell us what conversation you had with him that afternoon. A. I introduced my brother to him as Mr. Stanley. I said, 'This is my brother, Mr. Stanley.' I said, 'I hadn't told you my name before, but my name is Stanley. His name Is Walter Stanley, and mine is Edward Stanley.' I said, 'My partner was unable to come this afternoon, and my brother happened to be in the city on business. I thought I would bring him out with me.' Q. What talk did you have with him about these matters that you discussed with him the night before? A. I told him my purpose in coming out was to find out how much it would cost us to run this poker place that we talked about up in his woods. He said, 'Well, I will tell you, I want to be frank with you, and I...
