Kimball v. Post Pub. Co.

• Decision Date: 15 June 1908
• Parties: KIMBALL v. POST PUB. CO. GALLETLY v. SAME. KIMBALL v. BOSTON TRANSCRIPT CO. GALLETLY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 248

85 N.E. 103

KIMBALL

v.POST PUB. CO.

GALLETLY

v.SAME.

KIMBALL

v.BOSTON TRANSCRIPT CO.

GALLETLY

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 15, 1908.

Exceptions from Superior Court; Suffolk County; Robert R. Bishop, Judge.

Separate actions for libel by C. Henry Kimball and William Galletly against the Post Publishing Company, and by the same plaintiffs against the Boston Transcript Company. From judgments for defendants, plaintiffs bring exceptions. Exceptions sustained.

H. N. Allin and Bert E. Kemp, for plaintiffs.

Elder & Whitman and James T. Pugh, for defendants.

HAMMOND, J.

The articles of which the plaintiffs complain contained reports of certain proceedings in court and also of a meeting of stockholders of a corporation called the Burrows Lighting & Heating Company.

So far as respects the report of the court proceedings the articles were privileged. This case differs materially from Cowley v. Pulsifer, 137 Mass. 392. In that case there had been no action by the court. Here the bill had been presented to the court and the court had acted upon it so far as to make a special order that the defendants therein should appear and show cause why they should not be enjoined. This act of the court was a judicial proceeding and, whatever might formerly have been the rule, it was a subject for a privileged report, although the cause had not yet been finished. It was an act begun in a case, and in the end there must be a final decision. The words of Esher, M. R., in Kimber v. Press Ass'n (1893) L. R. 1 Q. B. 65, 71, seem to us to be a true statement of the law on this subject: ‘I am, therefore, of opinion that where the proceedings are such as will result in a final decision being given, a final and accurate report, made bona fide, of those proceedings is privileged, although it be published before the final decision.’ And in that case the rule was applied to the proceedings upon an ex parte application for the issue of a summons on a charge of perjury. If this were not so then, in the language of Lord Esher, ‘the ridiculous result would follow that, there the trial of a case of the greatest possible interest lasted 50 days, no report could be published until it was ended.’ Kimber v. Press Ass'n (1893) L. R. 1 Q. B. 65, 71, and cases cited; Metcalf v. Times Publishing Co., 20 R. I. 674, 40 Atl. 864, 78 Am. St. Rep. 900, and cases cited; McBee v. Fulton, 47 Md. 403, 28 Am. Rep. 465; Ackerman v. Jones, 37 N. Y. Super. Ct. 43; Stuart v. Press Publishing Co. (N. Y.) 83 App. Div. 467, 82 N. Y. Supp. 401. See, also, the instructive case of Usill v. Hales, 3 C. P. D. 319, for a general discussion of the law upon this matter.

The articles in question contained among others the following statements: ‘At the office of C. Henry Kimball, 97 Haverhill street, officers, stockholders and lawyers interested in the Burrows Lighting & Heating Company met this morning. The affairs of the Burrows Lighting & Heating Company have been before the public for a considerable time and are apparently in a badly tangled condition. An order of notice was recently issued by the superior court against C. Henry Kimball, William Galletly and the Burrows Lighting & Heating Company, ordering them to appear in court on Thursday of this week to show cause why they should not be restrained from holding any meeting. The charges were that the holders of a majority of the capital stock of the company had fraudulently secured control over 416,000 shares of stock.’

By an inspection of the bill in equity and of the order of the court it appears that the statement in the articles was a fair report of the court proceedings. And we are further of opinion that the ruling that the evidence did not warrant a finding of malice was correct. So far, therefore, as the plaintiff attempted to hold the defendants as to so much of the articles as related to the proceedings in court they failed to make out a case.

But there was something more in the articles than the report of the proceedings in court. There was a report of the meeting of the stockholders of a private corporation; and unless this part of the report is also privileged the defense, so far as resting upon that ground, must fail. It is argued by the defendants that ‘the public is interested and concerned in a meeting of stockholders of a corporation such as is described in the’ articles in question, and that reports of such meetings are privileged if fair and made without malice. But the difficulty with this argument is that, unless modified by statutory provision, the law in England and in this commonwealth always has been otherwise. It is to be noted that we are not dealing with what is said at the meeting nor with the person who said it. No doubt a stockholder at such a meeting, speaking to stockholders, may with impunity say things derogatory to an officer or the manager of the company provided that what he says be pertinent to the matter in hand and he speaks in good faith and without malice. His justification rests upon the fact that he is speaking to the stockholders upon a subject in which he and they have an interest.

On the contrary we are dealing with a report in the nature of a repetition of the defamatory remarks, which report is made by a stranger, having no interest in the question, to other strangers, called the public, equally without interest. It is manifest that the grounds for the privilege under which the original speaker, the stockholder, is protected cannot serve the publisher of the report. Davison v. Duncan, 7 El. & Bl. 231; De Crespigny v. Wellesley, 5 Bing. 402. The privilege of the publisher, if any he has, must rest upon other grounds.

It is stated by some authorities that by the common law of England reports of judicial and parliamentary proceedings alone were privileged. While it is said by Shaw, C. J., in Barrows v. Bell, 7 Gray, 301, 66 Am. Dec. 479, that this statement, unqualified, is too broad, still subsequent decisions seem to show clearly that in England the principle of privilege is confined to reports of judicial or quasi judicial bodies. No privilege was attached to the report of other public unofficial meetings. Hence, if in such a case a report containing any defamatory statement of fact was...