Lancour v. Herald & Globe Ass'n

Decision Date07 January 1941
Docket NumberNo. 1065.,1065.
Citation17 A.2d 253
CourtVermont Supreme Court
PartiesLANCOUR v. HERALD & GLOBE ASS'N.

[Copyrighted material omitted.]

Exceptions from Rutland County Court; Walter H. Cleary, Judge.

Libel action by Arthur Lancour against the Herald and Globe Association. The jury's verdict was for the defendant, and the plaintiff brings exceptions.

Judgment reversed, and cause remanded for trial on issue of damages only.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

William L. Scoville, of Rutland, and George P. Drury, of Boston, Mass., for plaintiff.

Fenton, Wing & Morse, of Rutland, for defendant.

MOULTON, Chief Justice.

This is an action of libel, brought against the defendant corporation, the publisher of the Rutland Herald, a daily newspaper. Trial was had by jury, with verdict for the defendant and the cause is before us on the plaintiff's exceptions.

The article upon which this action is based, was published in the Rutland Herald of November 19, 1936, and is as follows:

"Brothers Await Trial for Theft

'Arthur Lancour, 23, Locked with Floyd, 14;

"Store Robbery Alleged.

"Arraignment in Rutland Municipal court of Floyd Lancour, 14, arrested on Tuesday on a charge of robbery while armed, and his brother, Arthur, 23, who was taken into custody yesterday in connection with the theft of nine revolvers at the Wilson Clothing company store on Merchants Row, was postponed yesterday by State's Attorney Asa S. Bloomer, pending further investigation of the case.

"The pair, sons of Mr. and Mrs. John Lancour of Evelyn street, are being held in Rutland city jail until their cases are presented in court.

"Arthur was arrested on information given to police by the younger brother, it is said. According to authorities, Floyd in his alleged confession, stated that Arthur waited outside the window in the rear of the clothing store while Floyd climbed through a broken window the second time to destroy possible clues left behind. The revolvers stolen are valued at $150. The burglary took place late Saturday night."

The defendant filed the general issue and special pleas which denied that the publication charged or purported to charge that the plaintiff was guilty of any criminal offense or that its language warranted or was reasonably susceptible of such a construction; alleged that the publication was a fair, full and correct report of the proceedings in the Rutland Municipal Court in connection with the complaint filed and warrant issued in the case against the plaintiff and of the proceedings incidental and preliminary thereto and of the charges and claims asserted therein, did not purport to express any comment or opinion as to the guilt or innocence of the plaintiff, and was made without malice or evil intent; and averred that, as the publisher of the newspaper, it was lawfully entitled and privileged to publish full, fair and impartial reports of judicial proceedings had in the lawfully constituted courts of this State, including the reports concerning arrests of persons charged with offenses against the law and the claims asserted in connection therewith by the lawfully constituted public authorities charged with the enforcement of the law.

The facts that appeared in the evidence were these: During the night of Saturday, November 14, 1936, the store of the Wilson Clothing Company in the city of Rutland was broken into and a number of revolvers stolen. On the following Tuesday the plaintiff's brother, Floyd Lancour, fourteen years old, was arrested in the town of Wallingford on another charge. Having been brought to Rutland and interrogated by the police he confessed to the burglary of the Wilson store and implicated the plaintiff in its commission saying that the latter waited outside while he made a second entry into the store to remove possible finger prints. The plaintiff was found at his home early in the evening and taken by two policemen to the jail, where he was questioned and denied participation in the crime. The State's Attorney was informed by telephone and he directed the police to arrest the plaintiff, saying that he would later issue the warrant. The plaintiff was thereupon arrested and lodged in jail. A warrant was issued on November 20, and the plaintiff was arraigned in the Rutland Municipal Court on November 25, and, having pleaded not guilty, bail was fixed at $1,000, and being unable to furnish security in this amount, he remained in jail until December 5th, when he was discharged by the court for lack of evidence. Information of what Floyd had said relative to the plaintiff's alleged complicity in the crime was given to a reporter of the defendant by a detective who had taken part in the interrogation of the boy.

The jury were instructed that the article in question was not, as a matter of law, libellous, and it was left to them to find whether such was its import; that it should be construed as a whole, including the headline, and taken in the sense in which the readers to whom it was addressed would ordinarily understand it; and that if, from reading the entire article, they should find that those who read it would ordinarily understand that the defendant was accusing the plaintiff of committing the crime of burglary or larceny, or being an accomplice in the commission of these crimes, the article was libellous.

This was, of course, a ruling that the language of the publication was ambiguous, admitting of more than one meaning, hence for the jury to construe. The plaintiff seasonably presented a number of requests for instructions, all of which went to the point that the publication was unambiguous, and should be ruled upon by the court as a matter of law and excepted to the failure to comply with them, and also took an exception to the charge as given.

The meaning of an alleged libel is to be gathered from the whole publication. Norton v. Livingston, 64 Vt. 473, 478, 24 A. 247. It is not to be construed in mitiori sensu, but the language is to be taken in its plain and natural meaning, and to be understood by courts and juries as other people would understand it, 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. State v. Sutton, 74 Vt. 12, 15, 52 A. 116; Darling v. Clement, 69 Vt. 292, 297, 37 A. 779. If such language is ambiguous and admits of more than one meaning, it is, when necessary to ascertain the meaning, for the jury to say what it means; but if the language is not ambiguous, and docs not admit of more than one meaning, it is for the court to say what it means. Norton v. Livingston, supra; Gregory v. Atkins, 42 Vt. 237, 249, 250.

The publication of the fact that a person has been arrested, and upon what charge, is not actionable if true, "but if to this fact there is added, by way of comment, words which amount to an accusation that the charge is true, or comment which assumes the guilt of the person arrested, by headlines or otherwise, the mere fact that the person was arrested upon the charge stated is no justification for words imputing guilt." Commercial Publishing Co. v. Smith, 6 Cir., 149 F. 704, 706; Thompson v. Globe Newspaper Co., 279 Mass. 176, 181 N.E. 249, 253; Tresca v. Maddox, 11 La. Ann. 206, 66 Am.Dec. 198, 200. The arrest of the plaintiff, although made without warrant, was legal, if the officers had reasonable cause to suspect that he had committed a felony, as, in the absence of any claim to the contrary, we assume that they had. Usher v. Severance, 86 Vt. 523, 528, 86 A. 741; State v. Shaw, 73 Vt. 149, 169, 50 A. 863; State v. Taylor and O'Donald, 70 Vt. 1, 4, 39 A. 447, 42 L.R.A. 673, 67 Am.St.Rep. 648.

Here, in addition to the fact of the arrest and the charge upon which it was based, the defendant published the statement of Floyd Lancour, which unequivocally accused the plaintiff of complicity in a felony, the falsity of which is not disputed. The fact that it was set forth as being a part of Floyd's alleged confession does not detract from its libellous character, for "the fact that the charge was qualified by the words 'it is alleged' or their equivalent, does not absolve the defendants from responsibility for publishing it. An accusation purporting to rest on hearsay is none the less defamatory." Maloof v. Post Pub. Co., Mass., 28 N.E.2d 458, 459; Peck v. Wakefield Item Co., 280 Mass. 451, 183 N.E. 70, 72; Lundin v. Post Pub. Co., 217 Mass. 213, 104 N.E. 480, 52 L.R.A.,N.S., 207, 209; Kimball v. Post Pub. Co., 199 Mass. 248, 85 N.E. 103, 19 L.R.A.,N.S., 862, 864, 127 Am.St. Rep. 492; Hurley v. Fall River Daily Herald Pub. Co., 138 Mass. 334, 336; Amick v. Montross, 206 Iowa 51, 220 N.W. 51, 58 A.L.R. 1147, 1150. The principle is of long standing. It was applied in Meggs v. Griffith, 1595, Cro.Eliz. 400.

It is said in Skinner v. Grant, 12 Vt. 456, 461, 462, and in Torrey v. Field, 10 Vt. 353, 412, that the repetition of a defamatory statement by a third person is justified where at the time of such repetition the name of the original speaker is given. The former case was an action for slander, but in the latter the rule was said to be also applicable to libel, although with misgiving, for, to quote Redfield, J., the writer of the opinion (10 Vt. at page 413) "It may be doubted, whether, on principle, a libel ought ever to be justified, by giving up, at the time of the publication, the name of the author, if the author did not put the charge in writing. By reducing oral slander to writing, its character is very materially changed, and its importance very much enhanced. Hence the excuse would seem to fall short of a full justification. But the cases treat the justification as sufficient, even in cases of libel." A careful examination of the two opinions shows that what was said in each of them upon this subject was by way of dictum; and indeed the doubt expressed by Judge Redfield appears to have been well founded. Even...

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