Conner v. Standard Pub. Co.

• Decision Date: 11 June 1903
• Citation: 183 Mass. 474,67 N.E. 596
• Parties: CONNER v. STANDARD PUB. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 474

67 N.E. 596

CONNER v. STANDARD PUB. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 11, 1903

COUNSEL

Chas W. Bartlett, Edmund H. Talbot, and Samuel H. Pillsbury, for plaintiff.

Powers Hall & Jones, for defendant.

OPINION

LORING J.

This is an action of tort for libel, founded on the publication in the defendant's newspaper of this statement concerning the plaintiff:

'Trying to Organize a Boston Company.

'A circular was received this week by nearly all the fire offices on the street, as well as by a number of business men, purporting to be a sort of prospectus for a new fire insurance company, which one H. W. Conner, of this city, has in contemplation.

'About four years ago Mr. Conner represented the St. Paul Fire & Marine as marine agent, and his connection with the fire end of the business has been through a few subagencies. It is understood that he proposes to call his company the Indemnity Fire.

'With some of the fire companies Mr. Conner is particularly well known--so much so, in fact, that they have refused to again place insurance on his property, which, it is thought, is peculiarly susceptible to fire.

'On December 16, 1895, the summer home of Harrison W. Conner, at Harwich, Mass., was burned. Again, on July 19, 1897, the place at 9 Hastings street, this city, said to belong to the same Mr. Conner, suffered a fire, the origin of which was reported by the state fire marshal's office as 'incendiary'; and the remarks accompanying the official report on this fire, on file at that office, read as follows:

"Am decidedly of the opinion that it was caused by Conner, as this house was unoccupied at the time. I have no doubt there was overinsurance to a great extent. Conner is an insurance agent, and has had two previous fires--one in Chelsea, where he had a yacht burned under suspicious circumstances, on which he collected insurance; also one at Harwich, which I have no doubt was of incendiary origin. I consider him a dangerous man for fire risk.'

'At the police inspector's department there is on file a case, also, against a Harrison W. Conner, wherein he was arrested on the complaint of Josiah W. Beckford for selling property assigned to him to save it from going into the possession of the assignee. This case, however, was nol pros'd. If this Harrison W. Conner referred to by the fire marshal and the police department is the same one who is endeavoring to organize a new fire insurance company in this city, his efforts will not meet with much success.'

It appeared that on December 16, 1895, the property of the plaintiff at Harwich, Mass., was burned, and 19 months after, on July 19, 1897, the plaintiff's property at 9 Hastings street, in the West Roxbury district of Boston, was also burned. At the time of the first the plaintiff had policies covering both properties, issued by the German-American Insurance Company. The insurance policy on the Harwich property covered a house, a stable, and carriage house attached, flag pole, boat landing, outbuildings, 'walk, etc.,' together with the furniture in the house. Nothing was burned but the house and a part 'of a boat landing steps.' After the first fire the insurance company canceled the policy on the plaintiff's property at Harwich, then remaining unburned, and returned to the plaintiff a pro rata share of the premium paid by him. The plaintiff did not request the German-American Company again to place insurance on his property, but took out a new policy on the Hastings street property from the Royal Insurance Company. The German-American Insurance Company's policy on the Hastings street property was not canceled by the insurance company, but continued in force until the Hastings street fire, in 1897. The article was written by one Wilson, and he testified that it was based on information given him by Mr. Hill, Mr. Rogers, and Mr. Field. Mr. Hill was an insurance adjuster, who adjusted the loss at this fire, and at the subsequent fire on the plaintiff's property at Hastings street, West Rox bury. He testified that he knew, as a matter of fact, that certain insurance companies, after the West Roxbury fire, declined to grant insurance to the plaintiff; and, while he had now no memory of telling Wilson of that, yet he was talking with Wilson when that matter was fresh in his memory. Mr. Rogers testified: 'We were dissatisfied with the causes, or with the findings of the causes, of that fire, and I had given orders in the office not to take any more insurance for that party.'

1. The plaintiff's first contention is that the jury should have been instructed, in accordance with his request, 'that there is no evidence of the truth of the allegations of the alleged libel that with some of the fire companies the plaintiff is particularly well known--so much so, in fact that they have refused to again place insurance on his property, which it is thought is peculiarly susceptible to fire.' The jury were told: 'You are to go through these, and compare them with the evidence, and see whether the statement made here, compared with the facts as the evidence discloses them to you, are true--are substantially true. I don't say that they must be actually and literally true, because the difference may be a difference of no consequence. Suppose I should charge some man with stealing a bay horse, and, when I come to court to testify, it should prove to be a white horse; there would be no earthly difference in the charge, and I should prove it substantially if I should prove that the horse was a white horse, instead of a bay horse. And so other minor things were charged. Fix the real gist of the charge. Suppose this house which was said to be 19 Hastings street should prove to be 21 Hastings street; that would be an illustration of an immaterial error; the matter would be substantially true, although he got the wrong number of the house, by some few numbers. Now, if these facts are substantially true, which he has alleged in going through them, and comparing the words which he used here with the evidence you heard upon the stand--if they are substantially true--then the defendant has made out that defense.' The instruction as to its being enough to prove that the things written were in substance true was right. Rutherford v. Paddock, 180 Mass. 289, 291, 62 N.E. 381; Golderman v. Stearns, 7 Gray, 181; Morrison v. Harmer, 3 Bing. N. C. 759; Edwards v. Bell, 1 Bing. 403, 409. The jury had before them Rogers' testimony that he gave orders not to take any more insurance for the plaintiff. We mention this because his counsel seem to assume the contrary in their brief. The answer was first stricken out as not responsive, but in answer to a subsequent question the witness testified that the explanation that he had made covered his answer better than either 'Yes' or 'No.' That put the previous answer in evidence. The plaintiff's contention is that this was not enough, because the libel stated that the insurance company 'refused,' and a refusal implies a request. But in our opinion an outward act manifesting the insurance company's determination not to insure property of ...