Ellis v. Brockton Pub. Co.

• Citation: 198 Mass. 538,84 N.E. 1018
• Parties: ELLIS v. BROCKTON PUB. CO.
• Decision Date: 21 May 1908
• Court: United States State Supreme Judicial Court of Massachusetts

198 Mass. 538
84 N.E. 1018

ELLIS
v.
BROCKTON PUB. CO.

Supreme Judicial Court of Massachusetts, Plymouth.

May 21, 1908.

Exceptions from Superior Court, Plymouth County.

Action for libel by Harold L. Ellis, a minor, by his father and next friend, against the Brockton Publishing Company. There was a verdict for plaintiff for substantial damages, and defendant excepts. Overruled.

[198 Mass. 541]

[84 N.E. 1019]

F. E. Sweet, for plaintiff.

Richard W. Nutter and C. Carroll King, for defendant.

RUGG, J.

The question whether the article was published of and concerning the plaintiff was properly left to the jury to be determined as a fact. It is only where there is no ambiguity as to the meaning of the language used, in connection with all the attendant circumstances, that it becomes a question of law. Barrows v. Bell, 7 Gray, 301, 66 Am. Dec. 479. But it has been said frequently that this is usually a question of fact. Hanson v. Globe Newspaper Company, 159 Mass. 293, 34 N. E. 462,20 L. R. A. 856. The published article described the plaintiff by his right name, and it contained at least one paragraph, which concededly referred to events in his life. This identified him as its subject. Although there were other statements which, to those intimately acquainted with his work and residence, might have been known not to be true of him, yet they are so connected and interwoven with the other assertions, that, plainly, it could not have been ruled as matter of law not to refer to the plaintiff. The structure of the article, published by the defendant, was such that it cannot reasonably be thought to refer to two different persons. It conveys no such intimation to the mind of the ordinary reader.

On the day when the defamatory article appeared in the Brockton Times, the plaintiff with his mother called at the office of the defendant, and pointed out to its agents the error, so far as it concerned the plaintiff. The agent of the defendant said everything would be done to set the matter right, and in the next issue of the defendant's newspaper, a retraction was printed in a conspicuous place. No written notice was given by the defendant to the plaintiff or his attorney of an intention to publish the retraction. It was published as soon as possible after the interview between the plaintiff and the agent of the [198 Mass. 542]defendant. These events occurred before action was brought. The defendant contends that Rev. Laws, c. 173, § 92, applies. It is extremely doubtful if this statute touches these facts. No ‘notice in writing’ was given nor was any copy of the proposed retraction shown by the defendant to the plaintiff or his attorney, so that the procedure pointed out by the statute was not followed. There is ground for the...