Duchesnaye v. Munro Enterprises, Inc.

• Decision Date: 26 July 1984
• Docket Number: No. 82-520,82-520
• Citation: 480 A.2d 123,125 N.H. 244
• Parties: Rosaire DUCHESNAYE v. MUNRO ENTERPRISES, INC.
• Court: New Hampshire Supreme Court

Page 123

480 A.2d 123

125 N.H. 244

Rosaire DUCHESNAYE v. MUNRO ENTERPRISES, INC.

No. 82-520.

Supreme Court of New Hampshire.

July 26, 1984.

Edward J. Reichert, Gorham, by brief and orally, for plaintiff.

Orr & Reno P.A., Concord (William L. Chapman, Concord, on the brief and orally), for defendant.

SOUTER, Justice.

In this action the plaintiff alleged that the defendant had libeled him by statements contained in a newspaper report and an editorial. The Superior Court (Pappagianis, J.) entered summary judgment for the defendant with respect to the news story, and the action was tried to the Court (Dunfey, C.J.) on the claim that the editorial was defamatory. The court returned a verdict for the plaintiff, and the defendant now appeals on its exceptions to certain of the trial court's rulings in support of the finding of liability. We affirm.

The record indicates that in April 1975 the Berlin District Court found the plaintiff guilty of making telephone calls with intent to annoy another, in violation of RSA 644:4. Soon thereafter, Robert Ring, the local manager of the telephone company, met with Howard James and Joe Myerson, the general manager and the editor, respectively, of the defendant's newspaper, The Berlin Reporter. Mr. Ring asked them for publicity designed to discourage improper use of the telephone, and he told them about the plaintiff's recent conviction.

On inquiry to the Berlin Police Department, Mr. Myerson learned that the plaintiff had made no statements during his annoying calls, and he told this to Mr. James. Mr. Myerson then wrote a front-page story about the plaintiff's conviction. The story identified the plaintiff as a 56-year-old Berlin man and was accurate on matters relevant to the present action. The same issue of the newspaper contained Mr. James's editorial on the subject of "obscene and harassing phone calls." He wrote that such calls were often from children, but he went on to observe that "others who make these calls are unstable persons who need help. In fact, some are in their thirties, forties and even fifties. A few days ago a 56-year-old Berlin man was arrested and convicted in District Court of making these calls."

In limiting summary judgment for the defendant to the claim based upon the news story, the superior court found that it was reasonably possible to read the editorial together with the news story as defamatory in two respects. It could be understood to describe the plaintiff as needing psychiatric help for instability, and it could be read to imply that the plaintiff had made obscene telephone calls. At trial the plaintiff sought to hold the defendant liable by proving that readers of the editorial had in fact understood it in these defamatory senses. See Thomson v. Cash, 119 N.H. 371, 375, 402 A.2d 651, 653-54 (1979).

The defendant's first assignments of error rest on the rule that expressions of opinion are not actionable as such. " 'However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.' " Pease v. Telegraph Publishing Company, Inc., 121 N.H. 62, 65, 426 A.2d 463, 465 (1981) (quoting from Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974)). The defendant argues in effect that the court could have found only that the editorial had been an expression of opinion, and that the record is therefore devoid of any basis for finding liability.

We agree that the editorial reference to "unstable persons who need help" could be read merely as an expression of the opinion that a person who makes annoying or obscene calls is unstable and in need of psychiatric help. We also note that the plaintiff's only witness to testify about his actual understanding of the editorial agreed on cross-examination that it expressed the "opinion" "that people who made these calls needed help." There is language in the trial court's findings indicating that the court found the quoted language to be opinion and also found the opinion actionable.

Before determining whether this was reversible error, however, we must answer two questions: did the court find the ostensible opinion had been understood to imply defamatory facts, and did the court properly find the editorial contained factual and defamatory material in addition to the opinion?

It is axiomatic that "[w]ords alleged to be defamatory must be read in the context of the publication taken as a whole." Morrissette v. Cowette, 122 N.H. 731, 733, 449 A.2d 1221, 1222 (1982). In such context, a statement in the form of an opinion may be read to imply defamatory facts, and it is actionable if it is actually understood that way. Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.1977), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977); Restatement (Second) of Torts § 566 (1977); see Morrissette v. Cowette, supra at 734, 449 A.2d at 1222.

This case went to trial on only two possibilities of libel, that the plaintiff needed psychiatric help and that he made obscene calls. Thus, if the reference to psychiatric help was opinion, it could have had a libelous implication only if it implied, or was a step in the process of implying, that the defendant had made obscene calls.

There was no evidence, however, that anyone so understood the reference to needing help. Hence, the record is insufficient to support a finding of liability based on the defamatory implication of an ostensible statement of opinion.

We next consider whether the trial court based liability on any other ground than opinion. We find that it did. As the court found on the motion for summary judgment, a series of factual statements in the editorial could have been read as indicating that the plaintiff had made obscene calls. The plaintiff had been identified in the front-page news story as a 56-year-old Berlin man; the editorial stated as a fact that a "56-year-old Berlin man" had been convicted of making "these" "obscene and harassing" calls. The same witness who testified that he had understood the reference to sickness as opinion, just as clearly testified that he had understood the editorial to imply that the plaintiff had made obscene calls. This was a sufficient basis for the trial court's finding that the witness "understood the editorial to be using the plaintiff as an example of a sick person who makes obscene phone calls." (Emphasis added.) It is clear that the trial court thus rested liability properly on the finding that the editorial had been understood to identify the plaintiff as an obscene caller, though the court may also erroneously have considered the opinion as an alternative ground of liability.

The defendant next challenges the finding of liability on the ground that the trial court did not find that the defendant had been sufficiently at fault in publishing the defamatory statements. The defendant claims that there was no evidence of its negligence, that the trial court's finding of negligence was erroneous, and that the finding of liability required proof that the defendant intended the statements to be understood in a false and defamatory sense. These claims are without merit.

Liability in defamation actions has traditionally rested upon the defendant's intention to communicate the defamatory statement to someone other than the plaintiff, or at least upon negligent responsibility for such communication. But it was also the general rule at common law that if the defendant acted intentionally or negligently in communicating a statement, he was strictly liable for its defamatory content. The law, in short, distinguished between communicating, on the one hand, and investigating facts and composing statements on the other. It required proof of fault in communication, but not in investigation or composition. W. Prosser, Torts § 113, at 771 (4th ed. 1971) (hereinafter "Prosser"); Restatement (Second) of Torts § 580B, comment b (1977); see Pallet v. Sargent, 36 N.H. 496, 501 (1858).

New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), abrogated this rule of strict liability for the defamatory content of statements about public officials, and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), did the same for defamation of public figures. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), swept away the last vestige of the old rule, by holding that the states may not impose civil liability without fault for defamation of private individuals like the present plaintiff. Gertz left it to the states to set the appropriate standard of fault in cases without claims of imputed or punitive damages, and in McCusker v. Valley News, 121 N.H. 258, 260, 428 A.2d 493, 494 (1981), cert. denied, 454 U.S. 1017, 102 S.Ct. 552, 70 L.Ed.2d 415 (1981), this court adopted a standard of negligence. The present plaintiff therefore had the burden to prove that it was through lack of reasonable care that the defendant prepared statements indicating that the plaintiff had made obscene calls.

There was evidence from which a reasonable trier of fact could find that the defendant had failed to exercise reasonable care for the accuracy of the statements. The parties stipulated that Mr. Myerson had inquired about the evidence against the plaintiff in the district court, and Mr. James testified that he had learned from Mr. Myerson that the plaintiff had said nothing during his harassing calls. Mr. James said that Mr. Myerson had reviewed the editorial before it was published.

This evidence was an ample basis for the trial court's conclusion that "a reasonable person, who knew that the plaintiff was ... convicted of two annoying calls, which were not obscene, would not have published such statements." This finding of fault was sufficient under the standards of McCusker v. Valley News supra.

It is true, as the defendant...