Cross v. Guy Gannett Pub. Co.

• Decision Date: 16 February 1956
• Parties: Burton M. CROSS v. GUY GANNETT PUBLISHING CO.
• Court: Maine Supreme Court

Page 355

121 A.2d 355

151 Me. 491

Burton M. CROSS v. GUY GANNETT PUBLISHING CO.

Supreme Judicial Court of Maine.

Feb. 16, 1956.

McLean, Southard & Hunt, Augusta, for plaintiff.

Berman, Berman & Wernick, Portland, Goodspeed & Goodspeed, Augusta, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, WEBBER, BELIVEAU, TAPLEY and CLARKE, JJ.

WEBBER, Justice.

This was an action of libel brought by the plaintiff, a former Governor of Maine, against the defendant company, which publishes several daily newspapers in this state. The defendant filed a general demurrer to the plaintiff's declaration which was overruled below. Defendant's exceptions bring the matter before us.

The defendant asserts as one ground of demurrer that the declaration is fatally defective in that it fails to allege that the statement was published of and concerning the facts and circumstances set forth in the inducement. Where words used in an allegedly libelous statement are not defamatory per se, the plaintiff may yet show the defamatory nature of the statement when viewed against a background of certain other extrinsic matter or circumstances. The averment of these other relevant circumstances (the inducement) must be in traversable form and must be linked to the statement itself by further traversable allegations that the statement was made of and concerning the matters set forth in the inducement. The averment which effectively performs this linking operation is known as the colloquium. The colloquium also performs the function of linking the statement to the plaintiff as the person defamed thereby. Whenever a colloquium is required to relate the statement to the inducement, failure to set forth such colloquium in proper and traversable form will render a declaration in an action of libel demurrable. Niehoff v. Sahagian, 149 Me. 396, 103 A.2d 211; Niehoff v. Congress Square Hotel Co., 149 Me. 412, 103 A.2d 219. However, when the published words are libelous per se, neither inducement nor colloquium are required. See Niehoff v. Sahagian, supra; Niehoff v. Congress Square Hotel Co., supra; Brown v. Rouillard, 117 Me. 55, 102 A. 701; 53 C.J.S., Libel and Slander, § 162 b, p. 247, and cases cited. Such was the case here on the view we take of the words in the published statement.

The second ground of demurrer advanced by the defendant is that the words used in the published statement are not defamatory per se. In several counts the declaration sets forth the publication of an article in three of the defendant's daily newspapers, The Daily Kennebec Journal published in Augusta, The Waterville Morning Sentinel published in Waterville, and The Portland Press Herald published in Portland. For the purpose of determining the sufficiency of the pleading, the falsity of the article is admitted by demurrer. In each paper the article appeared on the front page and carried a headline. There were minor but relatively unimportant differences in the wording of headlines, use of subheadlines, and the use of heavy black type for emphasis, but essentially the same identical article appeared in each paper and for the purposes of examining the law applicable in this case, it will suffice to incorporate in this opinion only the article as it was published in The Portland Press Herald, as follows:

'Cross Reportedly Sought Liquor Favors for Three

'Governor Burton M. Cross recently asked the two Republican members of the Liquor Commission to grant liquor listings to three persons, it was reliably learned today.

'Cross requested the favors at a conference with Liquor Chairman Ralph A. Gallagher of Damariscotta, whom he recently named to the post and Frederick H. Bird of Rockland.

'Although the retiring governor stipulated that he did not want to cause the commissioners any 'embarrassment' in asking the favors, the directness of his approach was not in keeping with the 'hands off' practice he was careful to follow during his administration.

'Cross reportedly asked the commissioners to purchase another brand from liquor salesman Dorian McGraw of Milbridge; to purchase three brands from Foster F. Tabb, retiring Kennebec County sheriff, apparently so that Tabb could represent a New England rum concern; and to purchase more brands from William A. Bancroft of Portland.

'Bancroft a friend of Gardiner wine bottler Herman D. Sahagian a key figure in the 1952 liquor probe, represents a concern selling rum and gin. His gin was delisted March 1, 1950, but relisted a year ago.

'McGraw is related to ex-Senator Owen Brewster by marriage.

'Brewster's name was brought into liquor commission affairs today in another relationship--Executive Councilor Lester S. Crane of Machias said Brewster had asked him through a third party to vote for confirmation of Leo J. Cormier to the Liquor Commission.

'Cormier was confirmed last week but Crane voted against him.'

At the outset, we recognize that the article must be read as a whole, taking into account its wording, the nature and use of headlines, and any other methods employed to give special emphasis in order to determine its natural and probable impact upon the minds of newspaper readers. As was said in Brown v. Guy Gannett Publishing Co., 147 Me. 3, 5, 82 A.2d 797, 798: 'It is not necessary in order for printed words to be libelous that they naturally tend to expose the plaintiff to public hatred and contempt and ridicule, and deprive him of the benefit of public confidence and social intercourse. It is sufficient if they naturally tend to bring about any one of the foregoing consequences. The governing principle of law is stated in the alternative or disjunctive, not in the conjunctive.' We must bear in mind that 'the daily newspaper is read in the haste of daily living.' Sinclair v. Gannett, 148 Me. 229, 236, 91 A.2d 551, 554. An article is no less defamatory because it accomplishes its damaging mission by the use of insinuation. 'Insinuations may be as defamatory as direct assertion, and sometimes even more mischievous.' State v. Norton, 89 Me. 290, 294, 36 A. 394, 395. In Palmerlee v. Nottage, 119 Minn. 351, 353, 138 N.W. 312, 42 L.R.A., N.S., 870, no direct charge was made against plaintiff in a newspaper article, but by insinuation all of the County Commissioners, of whom plaintiff was one, were accused of "'favoritism, nepotism and malfeasance in office."' The Court said: 'A charge need not be made directly--indeed, the venom and sting of an accusation is usually more effective when made by insinuations. The floating calumny which each reader may affix to any and every official act which his aroused suspicion may lay hold of is capable of inflicting graver injury and injustice than a direct, specific charge, which may be squarely met and refuted, if untrue.' As was said in Muchnick v. Post Publishing Co., 332 Mass. 304, 125 N.E.2d 137, 138. 'The difficulty in this case lies not in the law, which is well settled, but in its application to the facts. * * * The test is whether, in the circumstances, the writing discredits the plaintiff in the minds of any considerable and respectable class of the community.'

We think that a reading of the article in question naturally tends to expose the plaintiff to public contempt and ridicule and to deprive him of the benefit of public confidence. At the time this statement was published the plaintiff was the Governor of Maine and, as such, the head of the Executive Department charged with responsibility for and authority over the State Liquor Commission. The Legislature in establishing the Commission has indicated that in all matters having to do with the purchase, sale and control of alcoholic liquors within this state, the best interests of the state shall be served and that decisions shall not be based upon favoritism or discrimination. We think the only exception to be found is in that provision which discriminates in favor of the people of Maine by providing that 'the commission shall in their purchases of liquors give priority, wherever feasible, to those made from the agricultural products of this state.' R.S.1954, Chap. 61, Sec. 8, Subsec. IV. Pursuant to its policy of complete non-discrimination, however, the Legislature provided in Subsec. V of the same section, 'The commission at all times and with respect to all policies shall neither discriminate against nor in favor of any person, firm or corporation because of his residence or nonresidence in the state * * *.' We think, moreover, that regardless of what we deem to be the announced policy of the Legislature in this respect, it would be highly improper for either the Governor or the Liquor Commission to permit either personal or political favoritism to govern the purchase of particular brands of liquors with public funds. Obviously, the best interests of the people of this state require that the choice of liquors to be purchased should rest only upon such factors as quality, competitive price and public acceptance and demand. The reader of the article in question would naturally conclude that the plaintiff in his then capacity as Governor of Maine had attempted to use the great influence of his high office and his appointive power to obtain from members of the Liquor Commission a deviation from those proper standards. The article, both directly and by artful insinuation, conveys to the reader that until the reported incident occurred the Governor had maintained a 'hands off' policy and had left the Commission free to make decisions on the basis...