Hartmann v. Boston Herald-Traveler Corp.

• Citation: 323 Mass. 56,80 N.E.2d 16
• Parties: HARTMANN v. BOSTON HERALD-TRAVELER CORPORATION et al.
• Decision Date: 09 June 1948
• Court: United States State Supreme Judicial Court of Massachusetts

323 Mass. 56

80 N.E.2d 16

HARTMANN

v.BOSTON HERALD-TRAVELER CORPORATION et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 9, 1948.

Reservation and Report from Superior Court, Suffolk County; T. H. Dowd, Judge.

Tort action for libel by George W. Hartmann against Boston Herald-Traveler Corporation and another. On reservation and report from superior court.

Judgment for defendants.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and WILLIAMS, JJ.

A. A. Albert, of Boston, and G. Goldstein, of New York City, for plaintiff.

B. Aldrich, of Boston, for defendants.

QUA, Chief Justice.

This is an action of tort for libel. From July 1, 1942, until June 30, 1944, the plaintiff was professor of educational psychology at Teachers College, Columbia University, but was on leave of absence and was serving at a visiting lecturer and tutor in psychology at Harvard. Beginning in July, 1943, the plaintiff was publicly active in, and ‘chairman’ of, the ‘Peace Now’ movement, an organization whose purpose was to secure an immediate peace with Germany and Japan through negotiation. He continued as ‘chairman’ of the movement until it dissolved in October, 1944. The corporate defendant published a newspaper in Boston known as the Boston Herald. The defendant Cunningham wrote a daily column for the Herald on matters of public interest.

The alleged libels consisted of a series of articles written by Cunningham and published in the Herald between January 30, 1944, and September 29, 1944, inclusive, in which the author in robust and flamboyant language excoriated ‘Peace Now’ and the plaintiff's association with that movement. It is conceded that these articles disparaged the plaintiff and were defamatory in character. At the trial the case turned upon the defence that they were fair comment and criticism relating to a matter of high public concern and were published without actual or express malice on the part of either defendant. The trial judge submitted to the jury two questions: First, ‘Has the defendant Cunningham abused his privilege of comment?’ and second, ‘Were the alleged articles written and published with malice?’ The judge instructed the jury that if they answered both questions in the negative their verdict should be for the defendants, but if they answered either question in the affirmative their verdict should be for the plaintiff. The jury answered the first question in the negative and the second question in the affirmative, thus in substance finding that the privilege of fair comment had not been abused, but that the articles were published with malice. They found a general verdict for the plaintiff.

After the verdict the defendants moved that the answer of the jury on the issue of malice and the general verdict for the plaintiff be set aside as (among other grounds) against the weight of the evidence. The judge states that upon the hearing of this motion a question arose as to whether the two answers were mutually inconsistent, but that he was of opinion that in any event the second answer was against the evidence and the weight of the evidence. He therefore ordered that the second answer and the general verdict be set aside, that a new trial be had, limited to the question of malice, and that the jury's answer to the first question and their finding as to the amount of damages should stand. He has reported these orders to be determined by this court before further proceedings in the case. The parties have stipulated, in part, that if the plaintiff's exceptions to the setting aside of the jury's answer with respect to malice and to the setting aside of the general verdict should be overruled, judgment should be entered for the defendants. In the view we take, other alternatives contained in the stipulation become immaterial. If there was no error of law in the setting aside of the jury's answer that the articles were written and published with malice, on the ground that the finding of malice was against the weight of the evidence, then under the stipulation judgment must be entered for the defendants.

We construe the judge's charge as showing that ‘malice’ in the second question put to the jury meant so called actual or express malice, and meant something more definite than merely exceeding the privilege. The word was employed in a sense approaching its signification in popular usage, and without attempting a more complete definition, we can safely say that at least it required an improper motive.¹ See Squires v. Wason Manufacturing Co. 182 Mass. 137, 141, 65 N.E. 32;Doane v. Grew, 220 Mass. 171, 177, 107 N.E. 620, L.R.A.1915C, 774 Ann.Cas.1917A, 338;Restatement: Torts, § 606. The judge did not intend that the second question should include the first. When the questions are construed as the judge intended them to be construed there is no inconsistency in the answers.

It is provided by G.L.(Ter.Ed.) c. 231, § 127, that ‘The court may, at any time before judgment, set aside the verdict in a civil action and order a new trial for any cause for which a new trial may by law be granted * * *.’ One of the most common and well recognized grounds in law for the setting aside of a verdict is that it is against the weight of the evidence. When a trial judge is called upon to determine whether a verdict is against the weight of the evidence, the question before him, under the practice in this Commonwealth, is by no means the same as that presented to him at the trial when a motion is made for a directed verdict. The judge can direct a verdict for one of the parties only when there is no evidence, more than a mere scintilla, upon which a verdict for the other party could rest. When some evidence worthy of consideration is present the judge must submit the case to the jury, even though it may appear to him that the preponderance of the evidence on one side is so great that he would set aside a verdict rendered against such preponderance. Niland v. Boston Elevated Railway Co., 208 Mass. 476, 94 N.E. 703;Hicks v. H. B. Church Truck Service Co. 259 Mass. 272, 276, 156 N.E. 254;Salem Trust Co. v. Deery, 289 Mass. 431, 433, 194 N.E. 307;Donovan v. Donovan, 294 Mass. 94, 97, 200 N.E. 884;DeAngelis v. Boston Elevated Railway Co., 304 Mass. 461, 463, 23 N.E.2d 859. But when asked to set aside a verdict as against the weight of the evidence the judge must necessarily consider the probative force of the evidence and not merely the presence or absence of any evidence upon the disputed point. In a limited sense he decides a question of fact. He is limited because he ought not to decide solely on his own opinion of the weight of the evidence as if he had heard the case without a jury. He may set aside the verdict only if he is satisfied that the jury have failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law. Scannell v. Boston Elevated Railway Co., 208 Mass. 513, 94 N.E. 696;Bartley v. Phillips, 317 Mass. 35, 40, 41, 57 N.E.2d 26, and cases cited. However, the process of applying this standard is deemed to be an exercise of discretion by the trial judge, and when the case reaches this court we can disturb his action only if we in turn are satisfied that he has abused his discretion. ‘It is doubtful whether any rule of practice has been more frequently stated than the general rule that the granting or refusal of a new trial on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge. To attempt to collect the cases would be a waste of effort. In some of them occurs the unqualified statement that the action of the judge cannot be reviewed on exceptions. * * * This statement is sufficiently accurate where no peculiar circumstances appear. Other cases recognize the possibility that abuse of discretion * * * might support an exception.’ Perry v. Manufacturers National Bank, 315 Mass. 653, 656, 54 N.E.2d 173, 175. We can find abuse of discretion by the trial judge only by deciding ‘that no conscientious judge, acting intelligently, could honestly have taken the view taken by him.’ Davis v. Boston Elevated Railway Co., 235 Mass. 482, 502, 126 N.E. 841, 846;Long v. George, 296 Mass. 574, 578, 579, 7 N.E.2d 149;Palma v. Racz, 302 Mass. 249, 251, 19 N.E.2d 8; Kinnear v. General Mills, Inc., 308 Mass. 344, 349, 32 N.E.2d 263;Bartley v. Phillips, 317 Mass. 35, 43, 57 N.E.2d 26. Abuse of discretion in granting or refusing a new trial can so seldom be found that actual instances in which this court has set aside the action of the trial judge on that ground are almost nonexistent, and it has repeatedly been stated that occasions when this court can do so are exceedingly rare. Berggren v. Mutual Life Ins. Co. 231 Mass. 173, 176, 120 N.E. 402;Hallett v. Jordan Marsh Co. 240 Mass. 110, 112, 133 N.E. 191;Thorndike, Petitioner, 254 Mass. 256, 259, 150 N.E. 296;Menici v. Orton Crane & Shovel Co. 285 Mass. 499, 502, 189 N.E. 839;Bresnahan v. Proman, 312 Mass. 97, 101, 102, 43 N.E.2d 336;Logan v. Goward, 313 Mass. 48, 51, 52, 46 N.E.2d 522;Bartley v. Phillips, 317 Mass. 35, 44, 57 N.E.2d 26;Commonwealth v. Gricus, 317 Mass. 403, 405, 58 N.E.2d 241;Cohen v. Peterson, 320 Mass. 315, 316, 69 N.E.2d 462. See Sharpe, Petitioner, 322 Mass. 441, 444, 77 N.E.2d 769. Such is the burden which the plaintiff must carry in this case.

We have been inveigled into the foregoing restatement of principles long established in this Commonwealth partly because much of the plaintiff's argument tends to show that he has not understood them and partly because it is necessary to keep them constantly in mind for the purpose of defining the precise issue before us in this somewhat unusual case. It is also necessary to keep constantly in mind that the jury have in substance found that, apart from an improper motive, the defendant Cunningham did not abuse his...