Chagnon v. Union Leader Corp.

Citation174 A.2d 825,103 N.H. 426
PartiesRoger H. CHAGNON v. UNION LEADER CORPORATION.
Decision Date30 November 1961
CourtSupreme Court of New Hampshire

Craig & Craig, McLane, Carleton, Graf, Greene & Brown, Stanley W. Brown, David L. Nixon, Manchester, for plaintiff.

Fuller, Flynn & Riordan, Henry M. Flynn, Portsmouth, Welch, Mott & Morgan, Herbert E. Forrest, and Edward P. Morgan, Washington, D. C., for defendant.

LAMPRON, Justice.

Defendant maintains that 1) plaintiff failed to establish or sustain his case; 2) it established a complete defense to the action; 3) the Trial Court admitted certain incompetent evidence; 4) a mistrial should have been ordered because the foreman of the jury was not indifferent; 5) the Trial Court erred in its instructions to the jury relative to cheating and malice; 6) the verdict was against the law and the evidence and was grossly excessive.

The first promotional advance notice of an article concerning the plaintiff appeared in the Union Leader on July 3, 1954. The article published the next day in the Sunday News was under the following headline: 'Says Trees At New Lot Below Par.' It read in part as follows: 'Shrub trees of an 'inferior species' failing to meet specifications under a contract given by the city to Chagnon Garden Center of Manchester, are being planted at the new Merrimack Common parking lot, it was charged last night by leading New Hampshire nurserymen.

'The Chagnon Garden Center is owned and operated by Roger H. Chagnon, brother of Romeo Chagnon, a Manchester Highway commissioner.

'The * * * contract * * * calls for the planting of 410 'columnaris arbor vitae trees, six feet tall' * * *

'Leon Pearson, prominent locally in nurserymen's circles, told the Sunday news last night that, in his opinion, the trees being planted 'are not columnaris arbor vitae, but run-of-the-mill nigra shrubs.'

'Other nurserymen * * * concurred with Mr. Pearson, who examined the trees personally.

"Nigra shrubs' it was explained by Mr. Pearson 'are much more plentiful than columnaris and can be obtained much more easily and much more reasonably. The difference in cost would be substantial'

'Mr. Chagnon * * * denied stoutly that he had substituted 'an inferior species' * * * or that any of the trees planted do not meet size specifications and all other standards.

'On the other hand, Winthrop Sterling, official Manchester Water Works gardener, in charge of passing on the tree standards, refused to give a 'yes' or 'no' answer to the question of whether the shrubs being planted by Mr. Chagnon's firm are columnaris, as specified.

'Mr. Sterling, who said he rejected 'more than 100' trees delivered by * * * Chagnon * * * because they did not in his judgment meet standards, admitted that 'many of the trees planted are five footers' and do not come close to meeting the six-foot height specification.

"But that isn't my fault * * * I'm just a city employee taking orders, and found myself right in the middle. I didn't know but what there may have been a deal cooking' he said.

'* * * Joseph Mezitt, proprietor of Weston Nurseries * * * low bidder on the job, had plenty of figures ready.

"I offered to furnish everything needed--with the exception of a few plants--for $4660 substituting nigra for columnaris.' [Chagnon's bid was $5970 according to this article of which $3,587.50 was for 410 trees, viz.: $8.75 per tree.]

'Weston Nurseries underbid Chagnon Garden Center by $1,130. * * *

'[A local nurseryman said] 'Anyone can underbid if they want to supply run-of-the-mill stock. I defy anyone to produce 410 columnaris trees, six feet tall, full throughout, for anything like $8.75 each. It can't be done.''

A second promotional notice appeared in the Union-Leader July 10 reading 'Those sub-par shrub trees in Merrimack Common.' The following day a second article was published in the Sunday News under the following headline 'Supplying Firm Says Trees 'Nigra' Species'. In additional to repeating some of the statements previously printed it read in part as follows: 'The Cromwell Conn. nursery that furnished shrubs to * * * Chagnon * * * for sale to the city * * * confirmed last night that the trees are of the 'occidentalis nigra' species.

'Roger H. Chagnon * * * denied last week that the species of the shrubs being planted was nigra, or that they did not meet size specifications which called for trees 'six feet high.'

'In the same statement identifying the shrubs as nigra--in spite of Mr. Chagnon's assertion they were not--the Cromwell nursery superintendent [Mr. Webster] revealed to the Sunday News that invoices in his office showed the Manchester landscaper ordered the nigra shrubs 'five to six feet high'

'Mr. Webster explained that in order for Mr. Chagnon to have insured getting 400 trees 'six feet high' it would have been necessary for him to order shrubs with a specified size of 'six to seven feet'. The per tree difference in cost would have been substantial, he said.

'[Chagnon's bill] will not be paid according to Manchester Finance Committee Chairman Percy Bennett until landscaper Chagnon secures a statement from the Pierson Nursery that the shrubs are not of the nigra species, but straight columnaris arbor vitae, as called for by specifications.

'Chairman Bennett told a reporter that Mr. Chagnon had 'refused to reveal the source of his supply' to T. Edward McIntyre, superintendent of Parks and Playgrounds, or to show him the invoices for the trees'.

"I can understand his possible unwillingness to show the invoices' Bennett said. 'But I can't see why Mr. McIntyre should not be allowed to learn from Mr. Chagnon the source of his supply. We're watching this case."

The article reiterated that Weston Nurseries which offered the city nigra shrubs was the low bidder for the work.

A third article appeared in the Sunday News on July 18 entitled 'Tree Job Leads to Many Claims'. It read in part as follows: 'There were new developments on all fronts this week in the case involving the Chagnon Garden Center, the local firm supplying allegedly sub-par shrub trees being planted at the new Merrimack Common parking lot.

'Developments were: (1) The revelation that Mayor Josaphat T. Benoit and City Clerk Michael Quinn have been served with trustee writs resulting from action brought by individuals seeking to collect a total of $14,324.31 from Roger H. Chagnon.

'In addition to trustee writs served on the mayor and city clerk against Chagnon to attach the $5,790 check due him from the city, provided the bill is not held up, City Treasurer James F. Bourne was notified that the Amoskeag bank had received an assignment of $5,790 from Mr. Chagnon.

'Treasurer Bourne, who acknowledged notification of the assignment by signing it, keeping a carbon copy, said it was, in effect, another writ.

'Brother Not Involved.

'Meanwhile Manchester Highway Commissioner Romeo Chagnon in a statement to the Sunday News disclaimed 'any part in the award of the tree job to my brother. I did not bring any influence whatever to bear on anybody.'

The promotional notice published in the Union-Leader of July 24 read 'More on Parking Lot Tree Mess'. The article which appeared in the Sunday News the next day was entitled 'Refuse to Release Report on Trees in Parking Lot' and read in part as follows: 'Percy H. Bennett, Chairman of the Manchester Finance Commission, refused last night to release a report filed by Leon Pearson leading local nurseryman in connection with shrub trees furnished to the city by the Chagnon Garden Center for planting at Merrimack Common parking lot.

'However, City Hall sources * * * told the Sunday News that, according to the Pearson report, not one of the nearly 300 shrub trees planted thus far meets specifications. The specifications call for columnaris arbor vitae trees with a minimum height of six feet.

'The Pearson report claimed also, it was reported, that a large number of miscellaneous plants furnished by Chagnon under a $5,790 city contract also fails to meet specifications as to size and quality.'

On August 1, the Sunday News carried its fifth front page story in this matter. It read in part as follows: 'Municipal officials had gone mum over the case through the week, but George Langlois Chairman of the Parks and Playgrounds Commission admitted yesterday that Roger H. Chagnon had been summoned to a hush-hush meeting.

'Chagnon is owner of Chagnon Garden Center, Manchester, and furnished the city hundred of trees and miscellaneous other plants, which according to experts, do not meet specifications under a $5,790 contract.'

By a letter dated August 23, 1954 Chagnon was advised 'that the Parks and Playground Commission elects to rescind the sale as to the trees referred to above. [410 Arborvitae Columnaris, size 6']' He brought suit against the city for breach of contract and obtained a verdict.

'Any written words which directly or indirectly charge a person with a crime, or which tend to injure his reputation in any other way, or to expose him to public hatred, contempt, or ridicule are defamatory. Such words, if published without lawful excuse or justification constitute a libel; and the person in respect to whom they are written may maintain an action for them without either alleging or proving special damages.' Richardson v. Thorpe, 73 N.H. 532, 534, 63 A. 580; Restatement, Torts, §§ 559, 569.

A publication may be defamatory on its face or it may carry a defamatory meaning only by reason of extrinsic circumstances. In the latter case 'the plaintiff has the burden of pleading and proving such facts by way of what is called 'inducement'. Likewise, he must establish the defamatory sense of the publication with reference to such facts, or the 'innuendo." Prosser, Torts (2d ed.) § 92, p. 582.

'The function of the innuendo is merely to explain the words in the light of the facts. No mere claim of the plaintiff can add a defamatory...

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