Macurda v. Lewiston Journal Co.

• Citation: 109 Me. 53,82 A. 438
• Parties: MACURDA v. LEWISTON JOURNAL CO.
• Decision Date: 14 March 1912
• Court: Supreme Judicial Court of Maine (US)

82 A. 438

109 Me. 53

MACURDA

v. LEWISTON JOURNAL CO.

Supreme Judicial Court of Maine.

March 14, 1912.

Report from Supreme Judicial Court, Lincoln County, at Law.

Action by Charles L. Macurda against the Lewiston Journal Company. On report. Judgment for defendant.

Action of libel against the Lewiston Journal Company, the owner and publisher of a public newspaper called the "Lewiston Evening Journal," charging that the defendant company published in its said newspaper "a certain scandalous and malicious libel of and concerning the plaintiff, and of and concerning him in his profession as an attorney at law, and of and concerning his conduct" in a certain matter called the "Barris matter." Writ dated September 22, 1908. The declaration in the writ fills 18 printed pages of the record. Plea, the general issue, with a brief statement, which also fills 18 printed pages of the record. The action was tried at the April term, 1909, of the supreme judicial court in Lincoln county, and resulted in a disagreement of the jury. The action was then continued until the October term, 1910, of said court, when the case was reported to the law court under the following agreement: "By agreement of counsel, this case is reported to the law court upon so much of the evidence taken at the trial at the April term, 1909, as is legally admissible, the law court to determine all questions of law and fact involved, and to render such judgment therein as the law and the admissible evidence require, including the assessment of damages, if the plaintiff is legally entitled to damages."

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

Arthur S. Littlefield and George C. Wing, for plaintiff.

Symonds, Snow, Cook & Hutchinson and McGillicuddy & Morey, for defendant.

SPEAR, J. This is an action of libel against the Lewiston Evening Journal, charging that paper with publishing a certain scandalous and malicious libel concerning the plaintiff, and of and concerning him in his profession as an attorney at law, and of and concerning his conduct in the Barris matter. The Barris matter, briefly stated, was this: Wm. J. Barris and Irving H. Barris, the former the husband, the latter the son, of Alice O. Barris, were instantly killed, and Alice G. was seriously injured, in the Bakers Bridge accident, so called, on the Boston & Maine Railroad, which occurred on the 4th day of December, 1905. Robert P. Barris was appointed administrator of the estate of Wm. J. and Irving H. The plaintiff, being a friend of the family, was employed by the administrator to adjust the claims against the railroad. This he was able to do without suit, receiving the sum of $10,000 for the death of the husband and son, for the benefit of Alice G. Barris. The plaintiff then obtained a written instrument, signed by Alice G. Barris, purporting to be a discharge or release of any obligation to her, her heirs, executors, or administrators, upon any bond of the United States Fidelity & Guaranty Company filed in any probate court by Robert F. Barris or others as administrator of the estate of Irving H. Barris or of Wm. J. Barris. The plaintiff received, of the $10,000, $3,333.33 from the administrator for his services, as shown by the following receipt: "Boston, January 4, 1906. Received from Robert F. Barris. administrator of the estate of William J. Barris and Irving H. Barris, three thousand three hundred and thirty-three ($3,333.33) dollars and thirty-three cents in full for legal services rendered said administrator in procuring a settlement and adjustment with the Boston & Maine Railroad of the claims which the said administrator had arising out of the deaths of William J. Barris and Irving H. Barris. [Signed] C. L. M." The account of the administrator, presented to the probate court upon the estate of William J. Barris, contained the following item for counsel fees, "Paid Chas. L. Macurda, Atty., of Wiscasset, Maine, for services in the matter of injuries to deceased, $1,666.66," upon which but $150 was allowed by the court. Precisely the same item appeared in the administrator's account upon the estate of Irving H. Barris, and the same amount was allowed; that is, upon both accounts, for which the plaintiff had received $3,333.33 as counsel fees, the court allowed $300, thus leaving the sum of over $3,000 to be accounted for by the administrator to the estate. On the 4th day of June, 1906, the United States Fidelity & Guaranty Company, surety upon the bond of Robert F. Barris, paid to Alice G. Barris, as administratrix d. b. n., Robert F. having resigned, the sum of $3,283.34 by reason of its acting as surety on the bonds given by Robert F. Barris, as administrator of the estate of Wm. J. and Irving H. Barris. This was to supply the amount which the plaintiff had received as counsel fees in excess of that allowed by the court. Having paid the above sum of money, the surety company claimed that the written instrument above alluded to, and of the following tenor, to wit: "I, Alice G. Barris of Maynard, Mass., in consideration of one ($1.00) dollar and other good and valuable considerations paid to me by the United States Fidelity & Guaranty Company, hereby release and discharge said guaranty company from all liability to me or my heirs, executors or administrators under any bond or bonds filed in any probate court by Robert F. Barris or others as administrator of the estate of Irving H. Barris and of the estate of William J. Barris, both deceased, late of Maynard. Witness my hand and seal this 16th day of December, 1905. Alice G. Barris. [Seal.] Witness: Charles L. Macurda"—was procured by the fraud of the plaintiff, and that, relying upon this fraudulent instrument, it was induced to become surety upon the administrator's bonds of Robert F. Barris, upon which it was obliged to pay the above sum of $3,283.34.

When the alleged libel complained of was published, the plaintiff, upon the above state of facts, had been indicted in Massachusetts; the commonwealth in its indictment alleging that this release, purporting to be executed by Alice G. Barris, although signed by her, was obtained by plaintiff through misrepresentation and fraud, upon the false pretense that the instrument was to be used for the purpose of authorizing the plaintiff to deposit the money collected of the railroad in savings banks; that Falvey and Berry, authorized attorneys to execute the bond of the Fidelity & Guaranty Company, were induced to place their signatures upon the bond, in execution thereof, in reliance upon the release thus procured and presented by the plaintiff; and that "the said Macurda then and there did obtain the signature of said Falvey and said Berry, such attorneys as aforesaid, to a written instrument, the false making of which would be punishable as forgery, to wit, a certain bond." The specific offense, then, for which the plaintiff was indicted was for procuring genuine signatures to be affixed to an Instrument, the false making of which would be equivalent to forgery.

The alleged libelous articles complained of in the plaintiff's writ were published in the Lewiston Evening Journal of October 21, 1907, one appearing as a news item, the other as an editorial. The news item was copied verbatim from the Boston Sunday Globe of October 20, 1907; but, as the question of liability only will be involved in the decision of this case, the defendant will be required to assume full responsibility for both the news and the editorial Items. The plaintiff's declaration contains four counts; but only those charging that the defendant was indicted for larceny will be considered as all other general statements contained in either the news items or the editorial are capable of defense under the plea of truth. Nor need we consider but one count, as the libelous matter set out in the first count is of precisely the same nature as that set out in the other counts, and as broadly stated; and the same defense which can be set up in answer to the charge in the first count can be pleaded with equal force to the charges in the other counts.

The first count alleges that the defendant, on the 21st day of October, 1907, published "a certain scandalous and malicious libel of and concerning the plaintiff, and of and concerning him in his profession as an attorney at law, and of and concerning his conduct in said Barris matter, containing therein, among other things, the false, scandalous, malicious, libelous, and defamatory matter following, viz.: 'There is a deadlock over the extradition of Charles L. Macurda [meaning ...