Hutchinson v. New England Tel. & Tel. Co.

• Decision Date: 04 February 1966
• Citation: 350 Mass. 188,214 N.E.2d 57
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John L. HUTCHINSON v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY et al.

Page 57

214 N.E.2d 57

350 Mass. 188

John L. HUTCHINSON v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1966.

Decided Feb. 4, 1966.

Francis E. Dooley, Jr., Boston, for plaintiff.

Leon F. Sargent, Boston, for defendants.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

WILKINS, Chief Justice.

This action of tort for slander is in two counts, count 1 against New England Telephone and Telegraph Company and count 2 against Eleanor J. Doyle, a telephone operator of the company. The case arose out of an erroneous identification by Mrs Doyle, under police questioning, of the plaintiff's voice as being the one which telephoned in a false bomb warning. The jury returned verdicts of $34,000, but the judge, under leave reserved, ordered the entry of verdicts for the defendants. To this the plaintiff excepted.

Conceding the difficulty in this case of selecting the evidence most favorable to the plaintiff, we endeavor to state facts which the jury could have found. On Sunday evening, June 14, 1959, Mrs. Doyle was on duty as a switchboard operator at the company's headquarters in Roxbury. This was three days after the bombing of the North Station Metropolitan Transit Authority station which caused serious personal injuries and property damage, was widely reported in Boston newspapers, and led to many false bomb calls. About 6:03 P.M. she received a call over a two-party line in which a male voice said, 'I want to report that the Dudley Street Station is going to be blown up tonight.' The caller then hung up. The two subscribers on the line were H. E. Anderson, 6 Rosemary Street, Jamaica Plain, and Catherine M. Hutchinson, the plaintiff's mother, 26 Rosemary Street, Jamaica Plain. Mrs. Doyle immediately rang back both parties without receiving an answer. It was impossible for her to tell from which side of the line the call had come. She sought instructions from her supervisor who told her to request a trace of the call. This was the duty of the floor switchman, and the supervisor informed the Boston police that the trace was being made. Mrs. Doyle continued to receive calls. On Sunday evenings she averaged fifty calls an hour. She left the cord in the line, which procedure held it up so that it could not be used. Thereafter if anyone wanted to call out from that line, he would have to call through the operator, and anyone attempting to call in would get a busy signal. On the line while thus locked, she received calls inquiring if the line was out of order. One such call later turned out to have been by the plaintiff's brother, Arthur. Another happened to have been by Mrs. Anderson, who lived with her two daughters.

Boston police officers Barry and Mulkern arrived at the telephone office about 6:25 or 6:30 P.M. They asked Mrs. Doyle whether if she heard the voice again she could recognize it. She said that she had heard a voice again which she thought was the same as the one which made the bomb call. This voice had inquired as to what was the matter with the line. At about 6:30 to 6:40 P.M. when she believed the police were present a man, whose voice Mrs. Doyle thought sounded similar to the voice of the one who had made the bomb call, called out from the two-party line and requested a number.

About fifteen minutes after the police left she received a call on the line from Officer Barry, who was at the Hutchinson house. He asked her to listen to a voice. After she did, he asked if she could identify it. She said that she was as positive as she could be that it was the original voice. After 8 P.M. she left her position, with the supervisor's permission, to talk with officers Barry and Mulkern, who told her that the plaintiff had been taken into custody. They asked her to go to the police station to give a statement and to make an identification. She declined to go after there were 'some words with her supervisor.'

When Mrs. Anderson called she told Mrs. Doyle that there was a boy in her house who might have made the call. Mrs. Doyle replied, 'No,' they had the party they were looking for.

Mrs. Doyle had never met or seen the plaintiff before June 14, 1959. She had never heard of him or his family and knew nothing about him. She had no hatred, ill will, or hostility toward him, and the identification was made solely at the request of the police.

The plaintiff was twenty-one years of age in June, 1959, and lived with his parents. At the time he was engaged to a girl whom he married in 1961.

The plaintiff was arrested and charged with violation of G.L. c. 269, § 14, as amended through St.1958, c. 322, which made it a felony to make a false report relative to the location of explosives. He was exonerated on June 18, 1959, after a hearing in the Municipal Court for the Roxbury District.

The false telephone call, which occasioned the trouble, was actually made by the boy referred to by Mrs. Anderson. He was the sixteen year old nephew of the tenant who lived upstairs in her house.

The pertinent principles are well established, but difficulty lies in their application to somewhat novel facts. We assume that Mrs. Doyle's statements to the police...