Conroy v. Fall River Herald News Co.

Decision Date30 July 1940
Citation28 N.E.2d 729,306 Mass. 488
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Supreme Judicial Court, Bristol County.

Action by William S. Conroy against the Fall River Herald News Publishing Company for libel. On defendant's exceptions after verdict for plaintiff.

Exceptions overruled. T. F. O'Brien, of New Bedford, and J. Seligman, of Fall River, for plaintiff.

F. P. Garland, of Boston, and J. B. Cummings, of Fall River, for defendant.

LUMMUS, Justice.

This is an action against the publisher of a newspaper for two alleged libels published on January 11, 1936. Earlier, during the year 1935, the defendant in a number of articles had attacked the plaintiff in strong language, principally because of his conduct as State senator. These were published in a column entitled ‘Political Grab Bag,’ written by a political writer for the defendant, named Brindley. On the evening of January 8, 1936, the plaintiff delivered a public speech, reported in the defendant's newspaper, in which he indulged in vulgar abuse of Brindley. But he said, ‘I don't hate the Fall River Herald News,’ and ‘Its owner doesn't know the way the paper is being conducted’; also ‘I have respect for the Herald News staff but one rotten apple will spoil a barrel of good apples.’

The alleged libels evidently were published in answer to that speech. It is unnecessary to quote them in full, for undoubtedly they could be found defamatory. The plaintiff in an editorial was called ‘a low-grade creature,’ of ‘crass ignorance and stupid egotism,’ who has tried to clothe himself in a ‘thin veneer of respectability.’ He was called ‘a mean, vicious and contemptible liar,’ whose habit of mind has been a ‘gutter type of politics,’ and who ‘takes refuge in the thought that self-respecting men will hesitate to answer him, by going to the necessary low level to meet and answer his abuse and scurrility.’ A cartoon entitled ‘The Boomerang’ depicted the plaintiff as standing in a ‘Political Dump,’ where a waste barrel marked ‘Gutter Methods,’ apparently thrown by him, has returned to cast its contents of vermin and rubbish over him.

A libel may be privileged on the ground of self defence. ‘One attacked by a slander or libel has a right to defend himself, but he has no right to turn his defense into a slanderous or libelous attack, unless it clearly appears that such attack was necessary for his justification.’ Borley v. Allison, 181 Mass. 246, 247, 63 N.E. 260. A defence could seldom be effective unless one has a right in good faith to brand the accusations as false and calumnious. Koenig v. Ritchie, 3 Fost. & F. 413. A defence by one whose motives are impugned may require comment upon the motives of the accuser in the same transaction. Laughton v. Bishop of Sodor & Man, L.R. 4 P.C. 495;Shepherd v. Baer, 96 Md. 152, 53 A. 790;Brewer v. Chase, 121 Mich. 526, 80 N.W. 575,46 L.R.A. 397, 80 Am.St.Rep. 527;Chaffin v. Lynch, 83 Va. 106, 1 S.E. 803;Israel v. Portland News Publishing Co., 152 Or. 225, 53 P.2d 529, 103 A.L.R. 470, and note. Other illustrations are found in Odgers, Libel & Slander (6th Ed., 1929) 240-242. In the present case the publication plainly overran the limits of self defence, and was not privileged.

Even where no privilege can be found, a defamatory attack by the plaintiff upon the defendant can sometimes be shown in mitigation of damages. This cannot be rested on the broad ground that one who has defamed the defendant at any time in the past does not suffer the same wound to his feelings as one whose conduct has been without reproach. Wigmore, Evid. (Rev.Ed.1940) § 209. Neither can it rest on the ground that libels may be set off against each other. Child v. Homer, 13 Pick. 503, 511. Public policy requires that in general one who has been wronged in the past resort to the law for redress, instead of retorting in kind and mitigating the damages because of mutuality of wrongdoing. Keiser v. Smith, 71 Ala. 481, 486, 46 Am.Rep. 342. One theory upon which a defamatory attack by the plaintiff upon the defendant may be considered in mitigation of damages, is that one who defames another invites a prompt retort, and ought not to recover full damages for injury that his knowledge of human nature should have led him to expect and that his own act brought upon him. Sheffill v. Van Deusen, 15 Gray 485, 486,77 Am.Dec. 377;Child v. Homer, 13 Pick. 503, 511. Another theory is that defamation by one in hot blood, in retaliation for very recent injury, may be taken at a discount because of his emotional condition, and may be less harmful to the reputation if not to the feelings of the plaintiff than the same words would be if used under other circumstances. Walker v. Flynn, 130 Mass. 151, 152;Child v. Homer, 13 Pick. 503, 507. See Faxon v. Jones, 176 Mass. 206, 208, 57 N.E. 359.

Upon either theory, the provocation, to be considered in mitigation of damages, must be very recent, and the retort its natural consequence. If there was time for passion to subside, the provocation cannot be considered. Child v. Homer, 13 Pick. 503;Sheffill v. Van Deusen, 15 Gray 485, 486,77 Am.Dec. 377;Walker v. Flynn, 130 Mass. 151, 152;Quinby v. Minnesota Tribune Co., 38 Minn. 528, 38 N.W. 623,8 Am.St.Rep. 693. In this respect the law of defamation resembles that of assault and battery, in which also provocation, to be admissible in mitigation of damages, must be very recent as well as causative of the assault and battery. Avery v. Ray, 1 Mass. 12;Sheffill v. Van Deusen, 15 Gray 485, 486,77 Am.Dec. 377;Mowry v. Smith, 9 Allen 67;Tyson v. Booth, 100 Mass. 258;Bonino v. Caledonio, 144 Mass. 299, 302, 11 N.E. 98;Jackson v. Old Colony Street Railway Co., 206 Mass. 477, 487, 92 N.E. 725, 30 L.R.A.,N.S., 1046, 19 Ann.Cas. 615;Benjamin v. McLellan, 237 Mass. 141, 145, 129 N.E. 368;Dupee v. Lentine, 147 Mass. 580, 18 N.E. 465;Keiser v. Smith, 71 Ala. 481, 46 Am.Rep. 342.

On the matter or provocation, the judge instructed the jury in substance that if the attack made by the plaintiff in has speech of January 8, 1936, ‘was made upon the defendant paper, or upon a servant or agent of the defendant paper in his capacity as such servant or agent,’ and if the alleged libels were published so soon after the attack that it can be said that they were provoked by it, and not after ‘there was sufficient time for the anger or passion of the defendant, or its agents * * *, to cool off,’ then the provocation might be considered on the question of damages. The defendant excepted to the part of the charge that declared that the provocation could not be considered if there had been time to cool off. But it is plain from the foregoing discussion that the instruction was correct.

One Delaney, the managing editor of the defendant's newspaper, was permitted to testify that his reason for entitling the cartoon ‘The Boomerang’ was that the filth that the plaintiff threw at the newspaper rebounded and hit the plaintiff. The judge struck out the reference to the newspaper, saying that there was no evidence that the plaintiff's attack was upon the newspaper. To this the defendant excepted. Whether the plaintiff had attacked the newspaper or not was to be determined from his words, and not from Delaney's interpretation of them. It was proper to strike the latter from the testimony. The reason given for the action of the judge was unimportant. Much of the evidence was yet to be introduced and the judge made no final ruling that the plaintiff had made no attack upon the newspaper. Later, in the charge, the judge submitted to the jury the question whether ‘this alleged attack was made upon the defendant paper, or upon a servant or agent of the defendant paper in his capacity as such servant or agent,’ or, in distinction, ‘against the witness Brindley as an individual.’ The earlier expression of opinion by the judge had no effect upon the result of the trial. This exception must be overruled.

The fourth, ninth, fourteenth and eighteenth requests for instructions did not relate directly to any issue in the case, but asked instructions relating at best only to a single consideration bearing upon an issue. Barnes v. Berkshire Street Railway, 281 Mass. 47, 183 N.E. 416. The twentieth instruction requested was substantially a quotation from the opinion in Child v. Homer, 13 Pick. 503, 511. But it furnished no rule for the guidance of the jury, and might easily mislead them. Many statements that are proper in a discussion of law in an opinion of an appellate court are unsuited for reading to a jury. There was no error in refusing these requests.

The last point argued by the defendant relates to the admissibility and effect of three earlier attacks upon the plaintiff, written by Brindley and published in the defendant's newspaper, which were admitted, subject to the defendant's exception, as evidence of malice on its part. Malice could be proved by the plaintiff to take away the defence of truth (G.L. (Ter.Ed.) c. 231, § 92) and also to enhance damages.Faxon v. Jones, 176 Mass. 206, 57 N.E. 359;Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245, 28 N.E. 1,13 L.R.A. 97. The admissibility of verbal attacks by a defendant upon a plaintiff at times other than the time of the libel complained of, has been the subject of conflicting rulings in different jurisdictions. Wigmore, Evid. (Rev.Ed., 1940) §§ 403-406. All agree that expressions of hatred, ill will or anger, not themselves...

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