Hartmann v. Boston Herald-Traveler Corp.
| Decision Date | 09 June 1948 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | GEORGE W. HARTMANN v. BOSTON HERALD-TRAVELER CORPORATION& another. |
February 2, 1948.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & WILLIAMS, JJ.
Practice, Civil New trial, Judicial discretion. Malice. Libel and Slander. Words, "Malice." Restatement by QUA, C.J., of principles of law, long established in this
Commonwealth governing the determination of questions raised by an exception to action by a trial judge on a motion to set aside a verdict as against the weight of the evidence.
Mere severity and vigor of expression, including ridicule, sarcasm and invective, found in writings as to conduct of the plaintiff relied upon by him as the basis of an action for libel should not be confused with such an improper motive as would constitute malice where it appeared that the writings included no defamatory statement concerning the plaintiff of a wholly personal or private nature and did not abuse the defendant's privilege of fair comment.
If the motive actuating writings, published within the writer's privilege of fair comment but of vigorous and severe expression including ridicule, sarcasm, and invective, was solely to discredit the expressed opinions and objects of one participating in carrying on in 1943 and
1944 a "Peace Now" movement believed by the writer not only to be ill timed and utterly futile but, if not opposed, possibly disastrous to the morale of our civilian population and even of our armed forces in relation to carrying on World War II, such motive would not be improper and would not constitute malice rendering the writings libellous.
A judge, presiding at the trial of an action for libel against a newspaper columnist, did not abuse his discretion in setting aside a special finding by the jury that articles had been written and published by the defendant "with malice" and a verdict for the plaintiff, and in ordering a new trial limited to the question of malice, where the articles, although couched in vigorous and severe language, including ridicule, sarcasm and invective, had little tendency to indicate malice in the sense of an improper motive, and the judge believed it to be clear that the jury, who also had found that the defendant had not abused his privilege of fair comment, had misapprehended the case on the issue of malice.
TORT. Writ in the Superior Court dated January 29, 1945. The action was tried before Dowd, J.
Goldstein of New York, for the plaintiff.
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 as 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 Manuf. Co. 182 Mass. 137 , 141; Doane v. Grew, 220 Mass. 171 , 177; Restatement: Torts, Section 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, Section 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, 208 Mass. 476 . Hicks v. H. B. Church Truck Service Co. 259 Mass. 272 , 276. Salem Trust Co. v. Deery, 289 Mass. 431 , 433. Donovan v. Donovan, 294 Mass. 94 , 97. DeAngelis v. Boston Elevated Railway, 304 Mass. 461 , 463. 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, 208 Mass. 513; Bartley v. Phillips, 317 Mass. 35 , 40-41, 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. Perry v. Manufacturers National Bank, 315 Mass. 653 , 656. We can find abuse of discretion by the...
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