McBurney v. Times Pub. Co.

• Decision Date: 22 November 1961
• Docket Number: No. 10204,10204
• Citation: 175 A.2d 170,93 R.I. 331
• Parties: John F. McBURNEY v. TIMES PUBLISHING COMPANY. Ex.
• Court: Rhode Island Supreme Court

Page 170

175 A.2d 170

93 R.I. 331

John F. McBURNEY v. TIMES PUBLISHING COMPANY.

Ex. No. 10204.

Supreme Court of Rhode Island.

Nov. 22, 1961.

Aram A. Arabian, Providence, Edward F. Casey, Attleboro, Mass., John F. McBurney, pro se, Pawtucket, for plaintiff.

Hinckley, Allen, Salisbury & Parsons, Edward Winslow Lincoln, Stephen B. Ives, Jr., Guy J. Wells, Providence, for defendant.

PAOLINO, Justice.

This is an action of libel. The defendant pleaded the general issue and a special plea of privilege. After a trial in the superior court a jury returned a verdict for the plaintiff in the sum of $50,000. The trial justice granted the defendant's motion for a new trial, unless the plaintiff filed a remittitur of all of the verdict in excess of $25,000. The plaintiff filed such remittitur. The case is before us on the defendant's exceptions to the denial of its motion for an unconditional new trial, to certain evidentiary rulings, to certain instructions, and to certain rulings on requests for instructions.

The defendant published The Pawtucket Times, a newspaper of general circulation in the city of Pawtucket and neighboring cities and towns. It published three editions daily and on April 10, 1957 its paid circulation was about 40,500. Frank C. Pritchard was employed by it as a reporter. His duties included covering and reporting hearings in the probate court of Pawtucket.

The plaintiff, a married man, lives in the city of Pawtucket where he maintains offices as a practicing attorney. He has been a member in good standing of the bar of this state since his admission and has held public office, both appointive and elective. On April 10, 1957 he represented Elizabeth McKenna at a hearing in the Pawtucket probate court. The hearing involved a petition brought by C. Margaret Donelly, administratrix of the estate of Arthur J. O'Neil, for examination of Miss McKenna under the statute authorizing the examination under oath of persons suspected of having concealed assets of the personal estate of a deceased person.

The examination centered around the disposition of the proceeds of a certain check for $3,960 which Mr. O'Neil had received in November 1956 for the sale of a house. Mr. O'Neil died on the evening of December 30, 1956. Miss McKenna testified that on the morning of that day Mr. O'Neil, in the presence of Robert Warner and John F. Healey, endorsed the check and gave it to her for money which he owed her. On the following day she opened an account in her name in a bank in Pawtucket and deposited the check. On the same day she filed a petition in the probate court praying that she be appointed administratrix of the decedent's estate. Her petition was denied on February 13, 1957 and on the same day she withdrew all of the money out of the bank account she had opened on December 31, 1956. C. Margaret Donelly, the decedent's daughter, was appointed administratrix.

Miss McKenna maintained that the proceeds of the $3,960 check belonged to her and that they were not assets of the estate. In reply to questions by the court and by counsel for the administratrix she explained what she had done with the money and itemized the payments which she said she had made. She testified that she had made a payment of $2,700 in cash to John F. Healey for money which she owned him. The probate judge was not satisfied with her explanation of such payment and indicated that he did not believe her story. The plaintiff then informed the judge that Miss McKenna had given him the money and that he paid it to Mr. Healey in her presence. He stated that he had not obtained a receipt from Mr. Healey, but that he would supply the court with one. The probate judge remarked that he did not believe plaintiff had properly followed his duties as an officer of the court. He also expressed the opinion that there were assets of the estate which were being concealed and that $2,700 'must be accounted for.' The hearing was concluded sometime between 10:30 and 10:45 a. m. and was continued to the following Monday for further examination of Miss McKenna and also for the purpose of questioning Mr. Healey.

The instant action is based on the articles published by defendant in its report of the April 10 hearing. Mr. Pritchard was pressent during a part of the hearing. After checking with his superiors he wrote a report which appeared in the third edition of the paper on April 10 and in the first two editions on April 11, 1957. The articles were substantially the same in all three editions, but the headlines were changed. On April 10 the headline read, 'Probate Judge Raps Lawyer Over Sum Possibly In Estate,' while on April 11 it read, 'Lawyer Sharply Questioned Over Sum Possibly in Estate.' The story refers only to questions and comments made by the probate judge to plaintiff. It makes no reference to any of the questions or remarks which the judge directed to Miss McKenna.

At the hearing of the case at bar in the superior court plaintiff contended that the articles and headlines were defamatory of his reputation, especially in his profession as a lawyer; that they constituted a libel against him; that they were published with malice; and that he suffered damage as a result of their publication. To support his contentions he introduced in evidence a transcript of the probate court hearing and copies of the newspaper articles. In addition, on the issue of malice he presented evidence of incidents which he contended showed malice towards him by defendant over a period of time. We shall discuss these incidents in more detail when we consider defendant's exceptions to rulings admitting such incidents in evidence.

On the issue of malice the defendant presented the testimony of its general manager and treasurer, its managing editor, and its city editor. These men in effect ran the paper. They testified that they had no malice towards plaintiff. In support of its special plea of privilege, defendant presented evidence to prove its claim that the articles were a fair, impartial and accurate report of a judicial hearing and, therefore, privileged. The case was given to the jury on these issues. As we have already stated they returned a verdict for plaintiff.

The defendant has briefed and argued its exceptions under seven main points. We shall treat them in like manner, referring only to those portions of the record as we find necessary for a proper discussion and determination of the issue raised under defendant's exceptions.

We shall now consider the exceptions in point 1 under which defendant contends the trial justice committed prejudicial error in ruling on certain matters relating to developments after April 10, 1957 in the Donelly-McKenna dispute. Under exceptions 5a, 6 and 7, it contends that he erred in admitting certain exhibits because they were not mentioned in the newspaper articles. These exceptions relate to plaintiff's exhibits 8, 9 and 10 which are, respectively, the check which Miss McKenna testified was given to her by Mr. O'Neil, an envelope containing the check which she made out when she withdrew the money from the bank, and her bankbook. There is no merit in these exceptions. The articles expressly refer to the $3,960 check, to the bank deposit and to the payment of $2,700. Moreover, the transcript of the probate court hearing, which is in evidence, refers to these items. They were relevant and material on the issue of privilege in determining whether the report of the hearing was fair, impartial and accurate.

Exception 10 relates to the refusal of the trial justice to strike plaintiff's answers to certain questions pertaining to testimony at the probate court hearing. The defendant contends that the testimony given by plaintiff refers to matters which do not appear in the transcript of the probate court hearing and that it was therefore hearsay and inadmissible. Unlike Havens v. Rhode Island Suburban Ry. Co., 26 R.I. 48, 58, 58 A. 247, the testimony in question, even if hearsay, could not have had a controlling influence on any material aspect of the instant case and, therefore, the refusal to strike did not constitute prejudicial error.

Under exceptions 15, 16 and 17 defendant contends that the trial justice committed error in overruling its objections to certain questions put to Mr. Pritchard asking whether he had followed the proceedings of the Donelly-McKenna case in the superior court and whether the $2,700 or the $3,960 check were ever accounted for as a part of the assets of the O'Neil estate. He replied that he had not followed the proceedings in the superior court and did not know whether the funds in question were ever accounted for as part of the O'Neil estate. In the circumstances we find no prejudicial error.

The remaining exceptions in point 1 relate to the admission in evidence of the final decree which had been entered on November 6, 1957 in the superior court in the case of C. Margaret Donelly v. Elizabeth McKenna et al., Equity No. 25982. In admitting it the trial justice instructed the jury that the final outcome of the Donelly-McKenna dispute was not relevant to the merits of the instant case, except on the issue of malice, and that therefore he was admitting it only on that issue. In our opinion the ruling in question was not in error. We have examined the cases cited by defendant and are not persuaded that they are controlling in the circumstances.

The defendant published a news story about the outcome of the Donelly-McKenna matter. A copy of the report is in evidence, over defendant's objection, as plaintiff's exhibit No. 11. That report was properly admitted to show the state of mind of the defendant towards plaintiff. Subsequent statements by one accused of libel may be admitted to show malice. The fact that the trial justice excised the part of the report showing the final outcome of that case has no material bearing on his subsequent ruling admitting the final decree. Exhibit No. 11 refers to...