Lancour v. Herald And Globe Association

• Decision Date: 07 January 1941
• Citation: 17 A.2d 253,111 Vt. 371
• Parties: ARTHUR LANCOUR v. HERALD AND GLOBE ASSOCIATION
• Court: Vermont Supreme Court

17 A.2d 253

111 Vt. 371

ARTHUR LANCOUR v. HERALD AND GLOBE ASSOCIATION

Supreme Court of Vermont

January 7, 1941

Special Term at Rutland, November 1940.

Libel.---1. Instruction that Matter not Libel as Matter of Law Leaving Question to Jury.---2. Meaning Found in Whole Libel.---3. Libel Construed from Standpoint of Those who Read it.---4. Alleged Libel Construed by Jury if Ambiguous, by Court if not.---5. Publication of True Fact of Arrest not Libellous.---6. Implication of Guilt not Justified by Arrest.---7. Arrest without Warrant on Reasonable Cause.---8. Assumption of Reasonable Cause.---9. False Accusation in Confession Libellous.---10. Repeating Hearsay may be Libellous.---11. Dictum in Skinner v. Grant 12 Vt. 456, Distinguished.---12. Dictum in Torrey v. Field, 10 Vt. 353, Rejected.---13. Disclosure of Author of Libel no Justification.---14. Error to Submit to Jury Unambiguous Matter which was Libellous.---15. Charge Construed as a Whole.---16. Leaving Liability for Libel for Jury's Decision after Ruling of No Privilege.---17. Instructions to Jury May be Challenged by Exceptions to Charge and Refusal to Charge.---18. Different Exceptions Raising the Same Question Need not be Considered Singly.---19. Reports of Matter in Judicial Proceedings. Privileged.---20. Police Investigation not Judicial Proceedings.---21. Accusation in Confession not Privileged.---22. Accusations to Police not Privileged.---23. Public Interest Protects a Good Name.---24. When Liability Remanded for Assessment only.

1. An instruction that an article is not, as a matter of law libellous, and leaving to the jury its import, is a ruling that the language is ambiguous, hence for the jury to construe.

2. The meaning of an alleged libel is to be gathered from the whole publication.

3. An alleged libel is not to be construed in mitiori sensu, but the language is to be taken in its plain and natural meaning by courts and juries as others would, and according to the sense in which it appears to have been used and the ideas it is adapted to convey to those who read it.

4. If the language in an alleged libel is ambiguous and admits of more than one meaning, a jury should ascertain its meaning but if not ambiguous and with only one meaning, the court should say what it means.

5. The publication of the fact that a person has been arrested, upon a given charge, is not actionable if true.

6. But words or implication of guilt in connection with the report of an arrest are not justified by the mere fact of arrest.

7. An arrest without warrant is legal if the officers have reasonable cause to suspect a felony has been committed by the one arrested.

8. In the absence of any claim to the contrary it may be assumed that officers arresting one for a felony had reasonable cause to suspect he had committed the felony.

9. An accusation of guilt contained in a confession does not lose its libellous character.

10. Matter does not lose its libellous character because stated to be hearsay.

11. Language in regard to slander in Skinner v. Grant, 12 Vt. 456, that the repetition of a defamatory statement by a third person is justified when at the time of such repetition the name of the original speaker is given, held to be dictum.

12. Dictum in Torrey v. Field, 10 Vt. 353, that libellous matter may be justified when shown to be the statement of a third person whose name is given, not followed and rejected.

13. The publisher of a libel is responsible to the party libelled, notwithstanding that the name of the author thereof is given.

14. It is error to submit to a jury for construction an article which contains language which taken in its plain and natural meaning, and according to the sense in which it appears to have been used, was not ambiguous and was defamatory in that it charged the plaintiff with complicity in the commission of a felony.

15. A charge to a jury is not to be construed piece-meal, but as a whole.

16. A charge that an alleged libellous article was not privileged as a matter of law and leaving to the jury to find whether the defendant is liable leaves the question of privilege to the jury and amounts only to a ruling that the article is not privileged if the jury should find that the article was libellous.

17. The propriety of an instruction regarding the interpretation and meaning of matter alleged to be libellous may be challenged by exceptions taken to the charge given and to the refusal of the court to comply with requests to charge upon the subject.

18. Exceptions, though numerous and detailed, which all raise the same question in one way or another need not be considered singly.

19. Matter which would otherwise be libellous may, however, be published if the account is fair, impartial and substantially accurate and has been made the subject of judicial proceedings, even preliminary, interlocutory or ex parte.

20. A preliminary police investigation is not a judicial proceeding.

21. The publication of a statement made in the course of a preliminary police investigation by the self-confessed perpetrator of a crime concerning an alleged accomplice is not within the protection of a qualified privilege.

22. Information of accusations made by a person in custody given out by the police is not a statement of facts developed on or resulting from a judicial investigation.

23. The public interest does not require that the right to enjoy a good name that shall not be libelled should be made subservient to the right of free speech.

24. When liability exists as a matter of law a cause, after determination by the Supreme Court, may be remanded for the assessment of damages only.

ACTION OF TORT FOR LIBEL. The plaintiff alleged that an article published by the defendant in its "Rutland Herald" libelled him. Defendant's demurrer to plaintiff's amended complaint was overruled. The defendant then answered admitting publication, denying express malice and pleading that the publication was privileged. Trial by jury by Rutland County Court, September Term, 1939, Cleary, J., presiding. The plaintiff took exceptions to the refusal of the court to charge the jury as requested. Verdict and judgment for the defendant. Execution stayed and cause passed to the Supreme Court. Judgment reversed and cause remanded for trial upon the issue of damages only.

Judgment reversed and cause remanded for trial upon the issue of damages only.

William L. Scoville and George P. Drury for the plaintiff.

By failing to justify, the defendant admitted the falsity of the charges. 37 C. J. Libel and Slander, Sec. 144 (3) P. 65.

No privilege protects newspaper reports of the acts of public officers as to crime until a court has taken jurisdiction, by entertaining a complaint and issuing a warrant. Cavanaugh v. Austin, 42 Vt. 576, 579, Thompson v. Boston etc. Co., 285 Mass. 344, 347, Thompson v. Globe etc. Co., 279 Mass. 176, 189, Kimball v. Post etc. Co., 199 Mass. 248, 251, Cowley v. Pulsifer, 137 Mass. 392, 394, Williams v. Black, 24 S.D. 501, 510.

Privilege is not available as a defense to one who does not justify and who denies the words. This principle must apply where, as here, the party does not justify, and where he admits the words but denies their libellous character. Flint v. Holman, 82 Vt. 297, 299, Kidder v. Bacon, 74 Vt. 263, 272, Clemmons v. Danforth, 67 Vt. 617, 628.

Where in an action for defamation the defense is that words imputing crime were actually used in a sense not defamatory, the defendant has the burden of showing affirmatively that the words were used in the sense averred in the answer, and that readers understood the words in that sense. Flint v. Holman, 82 Vt. 297, 299, Darling v. Clement, 69 Vt. 292, 297, Smith v. Miles, 15 Vt. 245, 249.

The word "theft" and the words "store robbery," used in the catch-lines of the publication sued upon, as well as all forms of the words "thief" or "steal," import larceny as matter of law. Flint v. Holman, 82 Vt. 297, 299 ("stolen from the town,"), Smith v. Moore, 74 Vt. 81, 90, ("thief."), Darling v. Clement, 69 Vt. 292, 296 ("stealing."), Sabin v. Angell, 46 Vt. 740, 745 ("old thief."), Smith v. Miles, 15 Vt. 245, 250 ("stole; stolen.").

Words and expressions in catchlines prefaced to newspaper reports are exceptions to the usual rule requiring study of the whole publication to ascertain its meaning. This court has held that the word "thief" is an entire charge in itself, regardless of the remainder of the publication. Smith v. Moore, 74 Vt. 81, 90 ("damned thief of a Smith."), Dorr v. U. S., 195 U.S. 138, 152 ("traitor, seducter and perjurer."), Hayes v. Press Co., 127 Pa. St. 642, 649 ("hotel proprietors embarrassed.").

Repetitions of charges made by others are new defamations by the repeater, not the less actionable because he professes to quote others, using the words "it is alleged," or their equivalent. Skinner v. Grant, 12 Vt. 456, 461, Torrey v. Field, 10 Vt. 353, 412, Maloof v. Post etc. Co. (Mass.) Adv. Sh. 1940, p. 1023, 1024. Peck v. Wakefield etc. Co., 280 Mass. 451, 456. Thompson v. Globe etc. Co. 279 Mass. 176, 178. Lundin v. Post etc. Co., 217 Mass. 213, 216. Kimball v. Post etc. Co., 199 Mass. 213, 216. Hurley v. Fall River etc. Co., 138 Mass. 334, 336. Cowley v. Pulsifer, 137 Mass. 392, 394.

The defendant conclusively admitted libel in the publication sued upon in this action (a) by failing to justify in its answer and (b) by pleading privilege, such plea being necessarily predicated upon an existing liability for libel, and having no function where no such liability exists. 36 C. J., Libel & Slander, sec. 203, A, p. 1237. 37 Id. sec. 444 (3), p. 65. Odgers, Libel & Slander, 1st Am. Ed., p. 185.

The conduct of the defendant during the trial constituted a...