Fox Tree v. Harte-Hanks Communications, Inc.

• Decision Date: 18 December 1986
• Docket Number: HARTE-HANKS
• Citation: 398 Mass. 845,501 N.E.2d 519
• Parties: , 14 Media L. Rep. 1090 Walter FOX TREE v.COMMUNICATIONS, INC. 1 et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 519

501 N.E.2d 519

398 Mass. 845, 14 Media L. Rep. 1090

Walter FOX TREE v. HARTE-HANKS COMMUNICATIONS, INC. ¹ et al.²

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 3, 1986.

Decided Dec. 18, 1986.

Terrence J. McLarney, Boston (John L. Fitch, Cambridge, with him), for plaintiff.

Edward J. Mahan, Framingham, for defendants.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The plaintiff, Walter Fox Tree, appeals from a judgment for the defendants in a nonjury trial in the Superior Court. On appeal, Fox Tree argues that the trial judge's findings of fact were clearly erroneous and that the evidence proved that the defendants committed an invasion of Fox Tree's privacy in violation of G.L. c. 214, § 1B (1984 ed.). We disagree with Fox Tree's contentions and affirm the judgment. Because we hold that the judge's findings were not clearly erroneous, we do not reach the plaintiff's contention that G.L. c. 214, § 1B, establishes the tort of false light invasion of privacy. ³

The dispute arose from the publication of a 1980 Thanksgiving Day article in the Middlesex News. In the article, the defendant Marion Widger wrote that Fox Tree was bitter and passionate when he made several quoted remarks. The facts were heavily disputed, and the judge found the following. On November 14, 1980, Widger met with Fox Tree at his office and interviewed him for approximately one hour and a quarter. Fox Tree gave Widger much information, including two articles Fox Tree had written and sold to the Christian Science Monitor. Widger took notes during the interview. Near the end of the interview, Fox Tree asked Widger not to use the information he had given her and suggested that, instead, he and Widger coauthor an article. Widger said she would have to discuss Fox Tree's proposal with her supervisor. No agreement was ever made regarding coauthoring an article.

Subsequently, Widger wrote an article that was published in the Middlesex News on Thanksgiving Day, November 27, 1980. Widger's article was based on her interview with Fox Tree, interviews with two other people, and the two Christian Science Monitor articles. A third article, written by Fox Tree and submitted to the Middlesex News for publication, was never published and was not used by Widger in preparing her article. Widger's article improperly attributed two quotations to Fox Tree, but Fox Tree suffered no financial damage as a result of the publication. Although the article was less than flattering to one with academic standing and caused Fox Tree considerable emotional upset, it caused him no other damage.

Fox Tree's version of the facts differed substantially from those found by the judge. Fox Tree testified that no interview ever took place. He admitted meeting with Widger, but he testified that the meeting lasted only a half hour and that the only thing discussed was whether Fox Tree would coauthor an article with Widger. Fox Tree testified that the meeting ended when he and Widger could not agree on a fee for his coauthoring an article. Fox Tree now challenges the judge's findings of fact as clearly erroneous, and argues that his version of the facts is sufficient to establish a false light invasion of privacy. We disagree.

A judge's findings of fact will not be overturned unless those findings are clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). First Penn.Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621, 481 N.E.2d 1132 (1985). In deciding whether a judge's findings of fact are clearly erroneous, "it must be emphasized that it is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence." New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675, 363 N.E.2d 526 (1977). Fox Tree argues that a review of the exhibits indicates that Widger relied solely on the two Christian Science Monitor articles in preparing her article. Fox Tree then contends that, if his version of the facts is accepted, Widger did not observe Fox Tree's emotions and her characterization of Fox Tree's attitudes constitutes a false light invasion of privacy. The judge, however, did not believe Fox Tree's account of his meeting with Widger. He found that Widger's story was based on observations which she made during an interview with Fox Tree. Widger's testimony supports the judge's finding. She testified that Fox Tree made the quoted statements to her directly and that she only used the articles for verification. The judge believed Widger's account and not Fox Tree's, and we do not find the...