Louka v. Park Entertainments, Inc.

• Decision Date: 08 April 1936
• Citation: 294 Mass. 268,1 N.E.2d 41
• Parties: LOUKA v. PARK ENTERTAINMENTS, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 268

1 N.E.2d 41

LOUKA v. PARK ENTERTAINMENTS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

April 8, 1936

Action of tort for libel by Fofo Louka against Park Entertainments Inc. Judgment for plaintiff. From an order dismissing report after verdict for plaintiff for $2,688.75, defendant appeals.

Affirmed.

Appeal from Municipal Court of Boston, Appellate Division; Carr, judge.

C. W. Spencer, of Boston, for appellant.

H. J. Booras and J. A. Edgerly, both of Boston, for appellee.

QUA Justice.

This is an action of tort for libel.

The plaintiff is an actress who, according to her testimony, received her training in Athens, Greece, where she lived and where she played leading parts, including Iphigenia and Electra. After coming to this country she played in tragedy, drama, melodrama and operetta, but she was unacquainted with burlesque. The defendant was the proprietor of a burlesque theatre in Boston.

There was evidence that tragedy is the highest type of dramatization and that the tragedian is the highest type of the actor's profession; but that burlesque is not art and is not acting; that it is ‘ a place to display good looking girls in unappropriate dress, sometimes in nudeness'; that burlesque ‘ means scanty costumes for the chorus, very scanty’ ; that the plaintiff ‘ had in Boston an artistic reputation of the best’ ; and that she was ‘ one of the leading Greek actresses in America.’ It is not for us to pass upon the accuracy of any of this evidence.

The findings of the judge as to the publication of the alleged libel, which were supported by evidence, may be summarized as follows: The defendant maintained at the entrance to its theatre a public display of pictures of performers in its shows for the purpose of calling attention to the performances in its theatre. On the occasion complained of a picture of the plaintiff fully clothed appeared at the top of this display. Grouped below were pictures of numerous other women, scantily dressed. Across the display were the words ‘ Oriental Beauties' and below these the words ‘ Minsky's Midsummer Follies.’ The plaintiff was not employed by the defendant and was not performing in its theatre and was not acting in burlesque.

The judge made the following further special findings: ‘ I find that the inference the observer would draw from this display was that the women whose pictures there appeared, including the plaintiff, were actresses in the defendant's burlesque shows and in the play there advertised. I find that that was the defendant's purpose in maintaining the display.

‘ Regarding the plaintiff merely as a woman and not as an actress of tragedy and the better class of plays, I find that this display, with the inferences to be drawn therefrom, would expose her to ridicule and contempt. Regarding her as an actress of tragedy and the better class of plays, I find that this display would also injure her in her profession, trade or occupation.’

There was a general finding for the plaintiff.

The inferential findings hereinbefore quoted were justified. They in turn support the ultimate finding for the plaintiff. In view of the evidence which was in the case as to the nature of so called burlesque shows the judge could find that many people would regard a woman who performed in them as lacking a sense of delicacy and modesty, and that the display of the plaintiff's picture under the circumstances disclosed tended to bring her into contempt and to injury her reputation. This together with the falsity of the implied representation that the plaintiff was playing in burlesque was enough to maintain the action. Miller v. Butler, 6 Cush. 71,52 Am.Dec. 768; Twombly v. Monroe, 136 Mass. 464; Haynes v. Clinton Printing Co., 169 Mass. 512, 48 N.E. 275; Merrill v. Post Publishing Co., 197 Mass. 185, 83 N.E. 419; Brown v. Harrington, 208 Mass. 600, 95 N.E. 655; Riceman v. Union Indemnity Co., 278 Mass. 149, 179 N.E. 629; Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 190 N.E. 542, 92 A.L.R. 1124; Peck v. Tribune Co., 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960,16 Ann.Cas. 1075. The fact also found by the judge that the plaintiff was injured in her profession as an actress, although not a necessary element in this action for libel as distinguished from slander, Dow v. Long, 190 Mass. 138, 76 N.E. 667; Craig v. Proctor, 229 Mass. 339, 340, 118 N.E. 647, was a factor proper to be considered in the case. Bishop v. Journal Newspaper Co., 168 Mass. 327, 331, 47 N.E. 119; Morgan v. Republican Publishing Co., 249 Mass. 388, 391, 144 N.E. 221.

It is plain that the publication could be found to have been made of and concerning the plaintiff even if the defendant knew nothing about the plaintiff....