Fahy v. Melrose Free Press

• Decision Date: 17 September 1937
• Citation: 298 Mass. 267,10 N.E.2d 187
• Parties: WILLIAM T. FAHY v. THE MELROSE FREE PRESS INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 267

10 N.E.2d 187

WILLIAM T. FAHY v. THE MELROSE FREE PRESS INC.

Supreme Judicial Court of Massachusetts, Middlesex.

September 17, 1937

April 9, 1937.

Present: RUGG, C.

J., FIELD, DONAHUE LUMMUS, & QUA, JJ.

Libel and Slander. Pleading, Civil, Declaration, Demurrer.

A newspaper article charging in effect that a police officer of a city habitually used the city's time and office materials in writing personal letters "to vent his spleen," which involved the loss by the city of "a considerable sum," could not be ruled not libellous as matter of law.

A count in a declaration for libel which stated a cause of action was good on a demurrer to the count as a whole, even if some of the alleged statements were not libellous.

TORT. Writ in the Superior Court dated May 7, 1935. The defendant's demurrer was sustained by Walsh, J., who reported the action.

R. T. Bushnell, for the plaintiff. L. S. Nicholson, for the defendant.

QUA, J. This is an action for libel. The declaration is in two counts. Each count sets forth that the plaintiff was a lieutenant in the police department of Melrose and that the defendant published concerning the plaintiff a false and malicious libel as follows: " `With the tax rate at $36, the highest on record, overburdened taxpayers believe that every city department should adopt methods to insure savings in their expense wherever possible. One way in which apparently a considerable sum could be saved appears to be in the police department where the lieutenant (Fahy),' meaning the plaintiff, `uses the department typewriter, office stationery,' meaning by said phrase stationery purchased and owned by the said city of Melrose for use in the official business of the police department of the said city, `tax paid for time, light, postage stamps, etc.,' meaning thereby that the time, light and postage stamps referred to were paid for out of public funds belonging to the city of Melrose and raised by taxation for public, municipal purposes, `to compose personal letters to vent his,' meaning the plaintiff's, `spleen.'"

The only substantial difference between the two counts is that the first count includes, among other characterizations common to both counts, an assertion that the article charges the plaintiff with fraudulent conversion of property of the city in violation of G.L. (Ter. Ed.) c. 266, Section 51. The real ground of demurrer to each count is that the publication is not libellous, although the demurrer to the first count also states as a ground that the article does not charge violation of the statute.

In this Commonwealth the rule has been stated repeatedly that "it is only when the court can say that the publication is not reasonably capable of any defamatory meaning, and cannot reasonably be understood in any defamatory sense, that the court can rule, as matter of law, that the publication is not libellous." Twombly v. Monroe, 136 Mass 464 , 469. Lyman v. New England...