J. J. Gordon, Inc. v. Worcester Telegram Pub. Co.

• Decision Date: 06 November 1961
• Citation: 343 Mass. 142,177 N.E.2d 586
• Parties: J. J. GORDON, INC., and another v. WORCESTER TELEGRAM PUBLISHING CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 586

177 N.E.2d 586

343 Mass. 142

J. J. GORDON, INC., and another v. WORCESTER TELEGRAM PUBLISHING CO., Inc.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 26, 1961.

Decided Nov. 6, 1961.

Edward A. Brodeur, Worcester, for J. J. Gordon, Inc.

Jacob J. Gordon, pro se.

Duane T. Sargisson, Groton, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and KIRK, JJ.

SPALDING, Justice.

This action of tort is brought by two plaintiffs, a corporation and an individual. The declaration, which is in one count, alleges the following: The corporate plaintiff is engaged in the business of buying and selling real estate in and around Worcester. The defendant is the owner and publisher of three newspapers in Worcester, the Worcester Daily Telegram, the Worcester Evening Gazette, and the Worcester Sunday Telegram, which are the only newspapers with a general circulation in the Worcester area. 'Said newspapers * * * are a publicity utility therein, and have an absolute monopoly of the business conducted thereby.' For over a year prior to March 15, 1961, the 'plaintiffs have freely advertised their business in said newspapers' and such advertising is an 'absolute necessity to the carrying on of the said business of the plaintiffs.' On or about March 15, 1961, the defendant 'cancelled an advertisement after one publication thereof and * * * [has] since without just cause, maliciously refused and continues to refuse to accept for publication in [its] * * * newspapers further advertising by the plaintiff corporation.'

The defendant demurred and its demurrer was sustained. The plaintiffs appealed. Of the ground set forth in the demurrer we need consider only the first: 'That the facts alleged in the declaration are insufficient in law to constitute an action in tort.'

We are of the opinion that the demurrer was rightly sustained. We lay to one side epithets such as 'without just cause,' and 'maliciously.' General conclusions of this nature without allegations of fact sufficient to support them are not admitted by the demurrer. Dealtry v. Selectmen of Town of Watertown, 279 Mass. 22, 26-27, 180 N.E. 621; Caverno v. Fellows, 286 Mass. 440, 442-443, 190 N.E. 739; McCarthy v. Hawes, 299 Mass. 340, 344, 12 N.E.2d 722; Jacobs v. Mann, 300 Mass. 258, 15 N.E.2d 482; Foster v. Shubert Holding Co., 316 Mass. 470, 474, 55 N.E.2d 772. The allegation that the defendant is a 'public utility' is a conclusion of law and is not admitted by the demurrer. Fleming v. Dane, 298 Mass. 216, 218, 10 N.E.2d 85. Moreover, we judicially know that under our law a newspaper is not a public utility. Thus the question narrows to whether the publisher of a newspaper who enjoys a virtual monopoly in a given area by reason of the fact that there are no other papers of general circulation in that area may refuse to accept an advertisement if he sees fit to do so.

It has generally been held that the publication and sale of newspapers is a private enterprise as distinguished from a business affected with a public interest and that those engaged in such a business are free to deal with whomever they choose. Journal of Commerce Pub. Co. v. Tribune Co., 7 Cir., 286 F. 111; In re Louis Wohl, Inc., D.C.E.D.Mich.S.D., 50 F.2d 254; Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813; Friedenberg v. Times Pub. Co., 170 La. 3, 127 So. 345; Lepler v. Palmer, 150 Misc. 546, 550, 270 N.Y.S. 440; Poughkeepsie Buying Serv. Inc. v. Poughkeepsie Newspapers, Inc., 205 Misc. 982, 131 N.Y.S.2d 515; Philadelphia Record Co. v. Curtis-Martin Newspapers, Inc., 305 Pa. 372, 374, 157 A. 796; Mack v. Costello, 32 S.D. 511, 515-516, 143 N.W. 950; See Commonwealth v. Boston Transcript Co., 249 Mass. 477, 484-485, 144 N.E. 400, 35 A.L.R. 1; Lorain Journal Co. v. United States, 342 U.S. 143, 155, 72 S.Ct. 181, 96 L.Ed. 162; Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 624-625, 73 S.Ct. 872, 97 L.Ed. 1277.

Although the precise question here involved has not often been before the courts, the prevailing view in the few cases that have considered the question--and in our opinion the correct one--is that the publisher of a newspaper is under no obligation to accept advertising from all who may apply for it. Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813; Friedenberg v. Times Pub. Co., 170 La. 3, 127 So. 345; Poughkeepsie Buying Serv. Inc. v. Poughkeepsie Newspapers, Inc., 205 Misc. 982, 131 N.Y.S.2d 515. Our decision in Commonwealth v. Boston Transcript Co., 249 Mass. 477, 144 N.E. 400, 35 A.L.R. 1, points in this direction. There it was held that a penal statute requiring a newspaper to publish at its regular rates the findings of a minimum wage commission was unconstitutional on the ground, among others, that it curtailed the publisher's...