Lundin v. Post Pub. Co.

• Citation: 217 Mass. 213,104 N.E. 480
• Parties: LUNDIN v. POST PUB. CO.
• Decision Date: 28 February 1914
• Court: United States State Supreme Judicial Court of Massachusetts

217 Mass. 213

104 N.E. 480

LUNDIN v. POST PUB. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1914

COUNSEL

Sewall C. Brackett, of Boston, for plaintiff.

Elder Whitman & Barnum and James Thomas Pugh, all of Boston, for defendant.

SHELDON J.

The defendant published in its newspaper a statement that 'it was alleged' that the plaintiff had committed an assault upon a woman named, which had resulted in stated personal injuries to her. For this publication the plaintiff had a right of action, unless it was privileged, or unless it was true, or unless for some other reason it was not libelous. The mere fact that the charge against the plaintiff was not made by direct averment but only by saying that such an allegation had been made was not material; for the statement of unfounded charges is none the less actionable that it is made only by way of repeating them as having been made by others. Kimball v. Post Publishing Co., 199 Mass 248, 251, 85 N.E. 103, 19 L. R. A. (N. S.) 862, et seq.; Metcalf v. Times Publishing Co., 20 R.I. 674, 678 40 A. 864, 78 Am. St. Rep. 900; Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544; Popham v. Pickburn, 7 H. & N. 891; Davison v. Duncan, 7 El. & Bl. 229; Purcell v. Sowles, 1 C. P. D. 781, 2 C. P. D. 251. Nor have the publishers of newspapers any greater right to give in this way currency to false charges than other persons. They have no peculiar rights or privileges. Sheckell v. Johnson, 10 Cush. 25, 26; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 243, 28 N.E. 1, 13 L. R. A. 97.

The defendant claims that this was a fair report of the fact that a suit for damages had been brought against the plaintiff by the woman named, and that in her declaration she had made charges against him which were fairly and correctly stated in the article complained of; that her writ and declaration had been made the subject of judicial proceedings in open court; and therefore that the article was privileged as a fair and correct report of judicial proceedings published in good faith and without malice. This is the main, though not the only contention now relied on by the defendant.

It is not open to dispute that a fair report in a newspaper of pending judicial proceedings is proper, and that this privilege extends to all matters which have been made the subject of judicial proceedings, though such proceedings may be merely preliminary or interlocutory, or even ex parte. For example, it will render privileged a fair report of the charges made in a bill in equity which has been presented to the court and upon which the court has acted by making an order that the defendants shall appear and show cause why an injunction shall not be issued against them. Kimball v. Post Publishing Co., 199 Mass. 248, 85 N.E. 103, 19 L. R. A. (N. S.) 862; Kimber v. Press Association [1893] 1 Q. B. 65, 71. So it will extend to fair and accurate reports of hearings had upon applications for the issuance of warrants or other criminal process, or upon hearings had after such process has been issued, though they be not final trials upon the merits. Conner v. Standard Publishing Co., 183 Mass. 474, 67 N.E. 596; Perkins v. Mitchell, 31 Barb. (N. Y.) 461, 471, 472; Lewis v. Levy, El., Bl. & El. 537; Usill v. Hales, 3 C. P. D. 319. See, also, to the same general effect Parker v. Republican Co., 181 Mass. 392, 63 N.E. 931; Ackerman v. Jones, 37 N.Y. Super. Ct. 42; Meriwether v. Knapp, 211 Mo. 199, 215, 109 S.W. 750; A. H. Belo & Co. v. Lacy (Tex. Civ. App.) 111 S.W. 215, 218; Curry v. Walter, 1 B. & P. 525, cited and followed in King v. Wright, 8 T. R. 293, 298; Ryalls v. Leader, L. R. 1 Exch. 296; Hope v. Leng, 23 L. T. R. 243. But this principle is limited to matters which really have been made the subject of judicial action. It does not give the right to publish statements made in declarations or other papers filed in court on the ground merely that they have been placed on the files of the court, or until they have been brought to the attention of the court and some judicial action has been taken upon them. Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318. As was said by Mr. Justice Holmes in that case, the reasons for allowing fair reports of the proceedings of courts of justice 'have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity.' In that case, to be sure, the paper had been neither presented to the court nor entered upon the docket. But the fundamental ground of the decision was that it had not been made the foundation of any judicial action. The rule again was well stated in Barber v. St. Louis Dispatch, 3 Mo. App. 377, in language which, though used by a court of inferior jurisdiction, often has been quoted with approval by courts of last resort. So too the Supreme Court of Rhode Island has said, in Metcalf v. Times Publishing Co., 20 R.I. 674, 678, 40 A. 864, 865 (78 Am. St. Rep. 900), that the rule of privilege 'gives no license to publish libelous matter simply because it is found in the files of a court. As publishers of news and items of public importance the press should have the freest scope, but as a scandal-monger it should be held to the most rigid limitation. If a man has not the right to go around to tell of charges made by one against another, much less should a newspaper have the right to spread it broadcast and in an enduring form. It is necessary to the ends of justice that a party should be allowed to make his charges against another, for adjudication, even though they may be of a libelous character, and as such they are privileged. * * * But the right of a party to make charges gives no right to others to spread them.' See, also, Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544, and American Pub. Co. v. Gamble, 115 Tenn. 663, 90 S.W. 1005. The general doctrine of privilege has been limited similarly in analogous cases. Monaghan v. Globe Newspaper Co., 190 Mass. 394, 77 N.E. 476; Sweet v. Post Publishing Co., 215 Mass. 450, 102 N.E. 660; Smith v. Streatfield [1913] 3 K. B. 764.

The averments of the declaration mentioned in the defendant's article had not been made the subject of any judicial action within the rule which we have stated. The...