Lynch v. Lyons

• Decision Date: 02 May 1939
• Parties: JOHN D. LYNCH v. JOHN W. LYONS. SAME v. JAMES F. MAHONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 116

20 N.E.2d 953

JOHN D. LYNCH v. JOHN W. LYONS. SAME v. JAMES F. MAHONEY.

Supreme Judicial Court of Massachusetts, Middlesex.

May 2, 1939

December 5, 1938.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & RONAN, JJ.

Libel and Slander. Evidence, Competency, Of criminal proceedings. A statement in a radio address that a candidate for public office charged

"E. R. A workers ten cents a piece for cashing their meagre pay checks," where no special damage to the candidate was alleged or proved, was not actionable.

Oral testimony as to circumstances leading up to a complaint in a district court, as to the evidence at the trial of the complaint, and as to what a police officer had told a third person about that case, offered, at the trial of actions for slander and for libel, as evidence of the truth of alleged statements by the defendants imputing to the plaintiff the crime set forth in the complaint, properly was excluded.

TWO ACTIONS OF TORT. Writs in the Third District Court of Eastern Middlesex dated November 2, 1935.

Upon removal to the Superior Court, verdicts were returned before Dowd, J., in the first action for the plaintiff upon the second count in the sum of $5,000, upon the third count in the sum of $2,500 upon the fourth count in the sum of $1,000, and upon the fifth count in the sum of $1,000; and in the second action for the plaintiff in the sum of $6,500.

F. P. Garland, (R.

C. Evarts with him,) for the defendants.

R. T. Bushnell, for the plaintiff.

DOLAN, J. These are two actions of tort which were tried to a jury and now come before us on the defendants' consolidated bill of exceptions.

The case of Lynch v. Lyons is an action for slander based upon statements made by the defendant in speeches delivered over the radio on October 30, 1935, and November 1, 1935, during the course of a political campaign in which the plaintiff and the defendant were candidates for the office of mayor of the city of Cambridge. The action against Mahoney is one for libel based upon the publication of a circular containing excerpts from Lyons's speech of October 30, 1935. The circular was issued under the authority and signature of Mahoney, who was Lyons's campaign manager. In each case the answer contained a general denial and pleas of truth and privilege. The declaration in the action against Lyons contained five counts, the first of which was waived by the plaintiff. The jury returned a verdict for the plaintiff on each of the four counts relied upon, the total of the verdicts being $9,500. In the action against Mahoney for libel the declaration was in one count and the jury returned a verdict for the plaintiff in the sum of $6,500.

The first exception argued by the defendant Lyons is that the judge erred in denying his motions for directed verdicts on the third and fifth counts of the declaration. The words relied upon by the plaintiff in the third count were uttered by the defendant Lyons during his radio speech of October 30, 1935, and are as follows: "Not only have we the indelible records of the courts of Middlesex County, but we also have such typical acts as this man's practice in charging E. R. A. workers ten cents a piece for cashing their meagre pay checks in his drug store. You can verify this from any number of E. R. A. workers who have contributed their dimes to the overflowing coffers of the John D. Lynch Drug Co. This dime coming out of the pay check of a $12.00 a week E. R. A. worker with a family represents a loaf of bread or a quart of milk taken away from hungry children. My good people of Cambridge, what a human individual to have as mayor of our city!"

The words set forth in the fifth count, which were spoken by the defendant Lyons over the radio on November 1, 1935, are these: "In my last radio address, on October 30th, I mentioned the despicable practice of my opponent in charging the E. R. A. workers ten cents each for cashing their pay checks in his drug store. Since that time he has publicly denied this. My good friends, I wish you were with me this morning when a woman came to my home and told me her story. She voluntarily offered the following affidavit, which I read verbatim: `Commonwealth of Massachusetts Middlesex, ss. Cambridge, Mass., November 1, 1935. Affidavit. Now comes Mrs. Leona J. MacArthur, residing at 23 Bay Street Cambridge, . . . and being duly sworn on oath deposes and says that she was employed as an E. R. A. worker on the real estate survey project for the United States Government. And further says that she received $14.40 a week pay in the form of a government check and that she presented the said check to John D. Lynch personally, who is located at No. 2406 Massachusetts Avenue, North Cambridge, Mass. and that the said John D. Lynch cashed the said check and charged her ten cents for so doing. [Signed] Mrs. Leona J. MacArthur, Commonwealth of Massachusetts Middlesex, ss. Cambridge, Mass., November 1, 1935. Then personally appeared the above named Mrs. Leona J. MacArthur and made oath that the above statement is true, so help her God. J. Henry Smith, Notary Public. Commission expires Sept. 11, 1942. The great seal of the Commonwealth of Massachusetts.' Oh, my friends, if you were only with me this morning when she told me her pitiful story. At the time this check was cashed her husband was in a sanitarium as the result of continued illness resulting from pneumonia and a serious accident. She was forced to earn the bread and butter to keep body and soul together for her family. Yet Mr. Lynch, the banker, took ten cents away from her. Ten cents that would have purchased a loaf of bread or a bottle of milk for her child. There again is evidence, backed by affidavit."

In each of these two counts the innuendo is "meaning and intending thereby to convey that the plaintiff, a substantial business man, for his own financial gain, was depriving unfortunates employed by the Emergency Relief Administration of an unconscionable portion of their weekly wage for the service of cashing their pay checks . . . ." It is settled that words spoken orally are not actionable per se, unless they charge the plaintiff with a crime, or state that he is suffering from certain diseases, or prejudice him in his office, profession or business or may probably tend to do so. Chaddock v. Briggs, 13 Mass. 248, 252. Bloss v. Tobey, 2 Pick. 320, 328. Lovejoy v. Whitcomb, 174 Mass. 586, 588. Craig v. Proctor, 229 Mass. 339 , 341, and cases cited. In actions for libel as distinguished from slander it is settled otherwise. King v. Northeastern Publishing Co. 294 Mass. 369 , 371.

The gist of the charges as set forth in these counts is that the plaintiff charged "E. R. A. workers ten cents a piece for cashing their meagre pay checks." Whether the charges were true or false the acts charged were such as the plaintiff had a legal right to do. Peck v. Wakefield Item Co. 280 Mass. 451, 455. Neither the words complained of nor the innuendos set forth in these counts impute to the plaintiff the commission of a crime. They do not impute to the plaintiff any corruption, dishonesty, misconduct in his office, profession or business, nor the lack of some quality demanded of a person in the lines of endeavor pursued by him. In these respects the case is distinguishable from such cases as Chenery v. Goodrich, 98 Mass. 224 , 232 Fitzgerald v. Robinson, 112 Mass. 371 , 381, Morasse v. Brochu, 151 Mass. 567, 575, Barnett v. Loud, 226 Mass. 447 , 449, Warner v. Fuller, 245 Mass. 520, 523, and Morgan v. Republican Publishing Co. 249 Mass. 388 , 391. The words spoken are not actionable per se. No special damage is alleged by the plaintiff in these counts. When "special or peculiar damages are claimed, it is necessary to aver them specifically." Antokol v. Barber, 248 Mass. 393, 395. The allegations in these counts, that as a result of the words complained of the plaintiff was held up to ridicule and contempt by the citizens of Cambridge, all to his damage, are at best merely descriptive of general, not special, damages. Morrill v. Crawford, 278 Mass....