Poland v. Post Pub. Co.

• Decision Date: 31 December 1953
• Parties: POLAND v. POST PUB. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 860

116 N.E.2d 860

330 Mass. 701

POLAND v. POST PUB. CO.

Supreme Judicial Court of Massachusetts, Nantucket.

Argued Oct. 26, 1953.

Decided Dec. 31, 1953.

James C. Roy, Boston, for plaintiff.

Francis P. Garland, Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

In this action for libel the plaintiff appeals from an order of a judge of the Superior Court sustaining the defendant's demurrer to the plaintiff's declaration. Peck v. Wakefield Item Co., 280 Mass. 451, 453, 183 N.E. 70. Therein it is alleged that the plaintiff is a retired judge of the Probate Court for the county of Nantucket and entitled to receive a pension from the Commonwealth of Massachusetts; that he is now practising law; and that on September 13, 1952, when he was a candidate for nomination as representative to the General Court at a primary to be held on September 16, 1952, the defendant published of and concerning him in the Boston Post the following article:

'Pension or Pay up to Jurist

'Judge Poland Must Make Decision on Problem

'For a time yesterday, retired Judge George M. Poland of Nantucket had quite a knotty pension problem. He was confronted, too, with the possible problem of collecting both a salary and a pension from the State. Then, again, he was faced with the distant prospect of collecting, possibly, two pensions. Judge Poland retired last June as Probate Court judge at Nantucket. His base pay was $4000 a year. But Judge Poland, upon retirement, found that his pension would exceed the salary he received for working. Under a special law passed in October, 1951, by the Legislature, Judge Poland could collect three-fourths of his average court salary for the past 10 years. And during the past 10 years, Judge Poland sat many times as judge of probate in Middlesex and Suffolk counties, where the pay is $12,000 a year. He received the higher pay while sitting outside his own Nantucket courtroom. That brought his salary average far above his base pay as probate judge in Nantucket.

'More Than Base Pay

'Three-fourths of that salary averages about $5600--or $1600 more than his base pay. But Judge Poland decided recently that he'd like to represent Nantucket residents in the legislature. He became a candidate for the Republican nomination against the incumbent, Cyrus Barnes. A State representative receives $4500 a year. Could he collect both his pension and his salary, if elected, and get a combined pay of $10,000 as a 'working pensioner?' He had his answer to that question last might. State officials said the law specifically states that a person can only draw one salary from the State. He would have to waive either his pension, if elected, or waive his legislative salary. Then again, Judge Poland had the problem of possibly collecting two pensions. If the present pension law is not repealed and he is elected this year, then re-elect[ed] for two more terms he would be eligible for a pension as a legislator. Under the present controversial pension plan for solons a legislator receives a pension based on his highest salary in the State service or in one of its subdivisions. His pension from the Legislature, if he is elected and wins two more terms after that, would be based on the highest salary he ever received as a jurist. It could run as high, possibly, as $4000 a year.

'Only One Pension

'Would that amount be applied to his pension from the bench? That knotty problem was quickly unraveled by Chester H. Grant of Gloucester, secretary of the State Retirement Board. No, said Mr. Grant. A person can only collect one pension from the State. So now Judge Poland, if elected, only has some minor problems. He'll have to decide--if he wins the election--whether he'll take his pension or his salary as a legislator. If he is elected and serves six years in the House, and if the present pension system is not repealed at the special session, he'll have to decide which pension he'll eventually take--the one from the bench or the one from the Legislature.' It is further alleged that 'The intent and meaning of the words above * * * taken together, is that the plaintiff having retired as a judge of the Probate Court with a pension greater than his average annual pay for judicial work, was standing as a candidate for nomination for the office of representative in the General Court for the purpose of claiming and collecting monies from the Commonwealth to which he would not be entitled by law, that the plaintiff was troubled in mind and in doubt about such claim and that as a lawyer he did not know or understand the plain words of G.L. (Ter.Ed.) c. 32, § 91.'

To this declaration the defendant demurred alleging among other grounds that the matters contained in the declaration are insufficient in law to enable the plaintiff to maintain his action.

Words may be found to be defamatory if they hold the plaintiff up to contempt, hatred, scorn, or ridicule, or tend to impair his standing in the community. Twombly v. Monroe, 136 Mass. 464; Peck v. Wakefield Item Co., 280 Mass. 451, 183 N.E. 70; Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 261-262, 190 N.E. 542, 92 A.L.R. 1124; Ingalls v. Hastings & Sons Publishing Co., 304 Mass. 31, 33-34, 22 N.E.2d...