Mabardi v. Boston Herald-Traveler Corp., HERALD-TRAVELER
| Decision Date | 01 May 1964 |
| Docket Number | HERALD-TRAVELER |
| Citation | 198 N.E.2d 304,347 Mass. 411 |
| Parties | Mitchell MABARDI v. BOSTONCORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James N. Gabriel, Boston, (Max Binder, Boston, with him), for plaintiff.
Robert T. Capeless, Boston, for defendant.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.
In this action of tort for libel against the publisher of a newspaper, a demurrer was sustained to the plaintiff's second amended declaration. Assigned as the ground of the demurrer was that no cause of action was stated in the declaration. The plaintiff has appealed.
The following facts are alleged. For some time prior to March 9, 1962, the defendant's newspaper, the Boston Traveler, in company with other Greater Boston newspapers, had been publishing as 'headline and front page material' daily accounts of hearings held before a Congressional committee known as the Blatnik Committee. This committee was investigating fraudulent and criminal manipulations of payments made by the Federal government and this Commonwealth for land taken for the Federal highway program. In addition, the Traveler and other newspapers in the Greater Boston area had been publishing in similar fashion accounts involving 'several attorneys and laymen' who had been convicted following their appearances before the committee. The plaintiff, a Boston attorney, upon request of the committee, appeared before it on March 9, 1962, to testify 'as to how he had refused to take part in * * * alleged frauds and criminal activity' and he 'received the thanks of the committee chairman for his help and assistance.' On the same day, in the 'Late Final' edition the Traveler's lead story was an account of that day's testimony before the Blatnik Committee in Washington. The headline, which covered the top of the front page, read in two lines: 'Settlement Upped $2,000--$400 Kickback Told.' Immediately below the headline and toward the center of the page were three separate and properly labeled photographs representing, from left to right, one Joseph I. Mirkin, one Arthur P. Wilcox, and the plaintiff. The photographs were connected to the headline and to the article at their right. The article, a lengthy one mentioning over a dozen people by name, occupied half a column on page one and, in three columns, about a quarter of the space on page three. The story identified Mirkin as a State negotiator who had been recently convicted of raising a land taking settlement by $2,000 in return for the $400 'kickback.' Wilcox, about whom the article said nothing harmful, was identified as current president of the National Association of Real Estate Boards and a former long time member of the review board of the Massachusetts Department of Public Works, who was due to testify before the committee. No reference to the plaintiff was made during the course of the article, although there were two paragraphs of reference therein to an unidentified lawyer who had solicited cases of persons whose property had been taken.
The plaintiff further alleges that the 'publication of * * * [his] photograph combined with * * * [the] headline, combined with the photograph of a well publicized * * * convicted individual, combined with the failure of the defendant to explain the plaintiff's picture in * * * [these] surroundings, combined with the aroused and inflamed attitude of the newspaper buyers, and combined with the defendant's knowledge of * * * [that attitude] was a false and malicious libel of the plaintiff insinuating that * * * [he] had taken part in the criminal and fraudulent acts being investigated * * *.'
We have the problem of applying well settled law to the facts alleged. See Anthony v. Barss, Mass., 193 N.E.2d 329. 1 'It is settled that a demurrer to a declaration in libel cannot be sustained unless the words are not reasonably capable of any defamatory meaning.' Tobin v. Boston Herald-Traveler Corp., 324 Mass. 478, 487, 87 N.E.2d 116, 121. ...
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