Kelly v. Loew's Inc., Civ. A. No. 5071.

• Decision Date: 04 March 1948
• Docket Number: Civ. A. No. 5071.
• Citation: 76 F. Supp. 473
• Parties: KELLY v. LOEW'S Inc.
• Court: U.S. District Court — District of Massachusetts

76 F. Supp. 473

KELLY v. LOEW'S Inc.

Civ. A. No. 5071.

District Court, D. Massachusetts.

March 4, 1948.

COPYRIGHT MATERIAL OMITTED

Edward F. Flynn, Samuel Abrams and Garrett H. Byrne, all of Boston, Mass., for plaintiff.

Nutter, McClennen & Fish and Edward F. McClennen, all of Boston, Mass., for defendant.

WYZANSKI, District Judge.

This is an action of libel brought by a commander of the United States Navy against the producer of the motion picture, They Were Expendable. The parties have waived a jury trial. The complaint refers first to the publication of the script of the cinema, and second to its exhibition at two Boston theatres, Loew's Orpheum and Loew's State, neither of which is owned by defendant. The gist of the three counts is that the portrayal of plaintiff, thinly disguised as the motion picture character, "Rusty Ryan," held him up to ridicule because it showed him engaging in conduct unbecoming an officer and gentleman. Particularly the script and the cinema are said to have shown him, in relation to naval officers and men, as headstrong, undisciplined, aggressive, resistant to orders and self-seeking, and in relation to a United States Army nurse, as unduly amorous. These portrayals are claimed to have damaged him by affecting his professional reputation and thus causing him embarrassment and mental discomfort.

Defendant's answer raises among other points that (1) the script was never published to any one, (2) defendant is not responsible for the showing of the motion picture in the Boston theatres; (3) there is no evidence that any one who saw the picture in Boston did identify Rusty Ryan with plaintiff; (4) neither the script nor the picture holds plaintiff up to ridicule in the eyes of any respectable part of the general public or even of the narrow circle of his own profession; and (5) plaintiff has given defendant a license to portray him as he was shown in the script and in the movie.

Plaintiff was born in New York City, and later lived in suburbs of New York and in Connecticut. He is admitted to be a citizen of one of the states of the United States other than Delaware, in which defendant is incorporated. From Connecticut he was appointed to the United States Naval Academy at Annapolis. He graduated from the Academy in 1935. In December 1941, having attained the rank of lieutenant in the United States Navy, he was stationed at the United States Naval Base at Cavite in the Philippines. At the time he was unmarried. He was the executive officer to Lieutenant Bulkeley commanding Motor Torpedo Boat Squadron Three, popularly referred to as PT boats. The relationship between plaintiff and Bulkeley was respectful and cordial but not intimate — first names never being used between them. PT boats of the type they commanded had by 1941 been used in active warfare by the British, Italian and other foreign navies, but our Navy had no occasion to use them in actual combat prior to the day of Pearl Harbor. There is, however, no reason for finding that in 1941 the United States Navy was skeptical about the usefulness of PT boats or that the persons, including plaintiff, who were assigned to duty aboard such ships regarded or had any occasion to regard the assignment either as unworthy of an able man or likely to limit his opportunities to serve his country or participate in engagements that tested a man's mettle, proficiency and courage.

In the weeks immediately preceding the attack on Pearl Harbor the PT boats in the Philippines, having received indirectly from the Commander-In-Chief warnings that war was imminent, were constantly on patrol. The night before the attack, after having performed his duties, plaintiff went to the Army and Navy Club for a hearty steak dinner, topped off with brandy and a cigar. Then he retired to his bachelor quarters to sleep. Between 2:30 and 4:30 a. m. he was awakened by news of the Japanese raid on Hawaii. Immediately he reported to duty and in the next few days was under fire from Japanese planes which attacked the Philippines. In these engagements he was not wounded. However, before hostilities had been declared his finger had swollen from the bite of a tropical insect, and after the war was under way plaintiff snagged his finger on some metal, probably on the ladder of one of the boats. (R. 91). He first showed his finger to his bowling companion who was a doctor. Then his commanding officer learned of the injury. After Pearl Harbor day, plaintiff was ordered by Lt. Bulkeley to the Army hospital at Corregidor (R. 102) where he was kept as a patient for about a month and to which during a second and a third month he was required to report as an out-patient two or three times a week. (R. 107, 108).

At the Army hospital there was an Army nurse, holding the rank of second lieutenant, named Peggy. She was one of about 14 nurses assigned to Corregidor where there were approximately eleven thousand men. She was a girl in her twenties of moderate girth and height who wore glasses and who while perhaps not accurately described as "cute" was undeniably attractive to the men at Corregidor.

When plaintiff entered the hospital he fell under the care of Peggy, whose authority or rank he never challenged. From time to time thereafter she ministered to his medical needs. Plaintiff and Peggy became friendly but there is no evidence that there was any romantic attachment or any amorous intimacy. They never ate together except in the hospital. (R. 108). On occasions after plaintiff's discharge from the hospital they went for walks together. And after plaintiff left Cavite, Peggy wrote some letters to him and possibly he wrote to her; but the letters were not in evidence or demanded for production.

After plaintiff was discharged from the hospital he participated in naval engagements of historic importance. The squadron of which Lt. Bulkeley was commander and plaintiff executive officer was assigned tasks of major significance, and never was limited to messenger duty or like routine tasks. In view of the small size of the boats and the limited availability of torpedoes, fuel oil and like supplies, the PT boats performed incredible feats of warfare.

In March 1942, the PT boats were given a mission that became world famous. Lt. Bulkeley, plaintiff and others carried from Cavite to Mindanao General MacArthur, his wife, their son, Admiral Rockwell and other high military and naval personnel. Plaintiff commanded the PT boat which transported Admiral Rockwell. The skill and bravery with which this mission was performed earned each of the PT officers and men the Silver Star.

After arriving at Mindanao the Motor Torpedo Boats continued their superb work of slowing and diminishing the effectiveness of the Japanese advance. It is possible that one of the exploits of Lt. Kelly's boat was the sinking of a Japanese cruiser of the Kuma class. Eyewitnesses ashore believed they saw the cruiser sink, but later reports of naval engagements involving the particular cruiser thought to have been sunk cast some doubt upon the reports of the eyewitnesses. Whatever may be the truth with respect to this particular incident, there is no room for controversy regarding the over-all naval success of the squadron, the danger which the officers and men faced, the casualties they bore and the heroism with which they responded in the nation's most critical hour.

Plaintiff could well testify — though unlike Aeneas he would never volunteer the statement — "Quaeque ipse miserrima vidi, Et quorum para magna fui." (II Aeneid 5). Indeed if one were to select for special notice any particular event in the history of the squadron, the selection made by defendant's attorney could hardly be bettered. Returning from a battle plaintiff's boat became fouled with some coral heads. It was attacked by four Japanese seaplanes (R. 21). The planes killed or injured all except plaintiff and three other members of the crew (R. 22). Plaintiff helped ashore his wounded companions, but the Japanese planes continued strafing the survivors. Acting with incredible presence of mind, dispatch and gallantry plaintiff beached his boat and saved some of his wounded companions (R. 22). Those who had been lost in the battle were buried in an Anglo-American cemetery after a funeral service performed by a priest but unattended by plaintiff who had other duties to fulfill.

In the spring of 1942 the United States Navy, desiring that its officers and men in the United States should have training in the use of motor torpedo boats by officers familiar with their value in active combat, ordered Lt. Bulkeley, plaintiff and others to the naval training station at Melville, Rhode Island. (R. 79). The transportation from Mindanao was by airplane, and there was no time at which plaintiff offered or thought of offering to disregard his orders and surrender to another the airplane seat which he had been directed to occupy. On arrival in the United States and before reporting to Rhode Island, plaintiff was given a ten-day leave. He went to the home of his mother, who had moved to New York City from Connecticut. After three or four days, the Office of Public Relations of the United States Department of the Navy discovered that plaintiff was in New York City. Despite his own reluctance and because persons holding superior rank in the Navy made it clear that plaintiff should cooperate, plaintiff participated in a parade and two banquets in New York City intended not only as a testimonial of honor to the heroes of the PT boats but also as part of a promotional campaign to sell United States Savings Bonds. (R. 80, 82). This type of display was so out of character with plaintiff's natural disposition that he voluntarily terminated his own leave several days ahead of time and reported for duty at the naval training station in Rhode Island. (R. 26).

Hardly had he reached there when plaintiff was requested by an official of the United States Navy to allow...