Proto v. Bridgeport Herald Corp.

Decision Date11 April 1950
Citation136 Conn. 557,72 A.2d 820
CourtConnecticut Supreme Court
PartiesPROTO v. BRIDGEPORT HERALD CORPORATION. Supreme Court of Errors of Connecticut

Lawrence S. Finkelstone, Bridgeport, with whom, on the brief, were George N. Finkelstone and Lawrence E. Levy, Bridgeport, for the appellant (defendant).

Vincent Villano and Alfonse C. Fasano, New Haven, for the appellee (plaintiff).

Before BROWN, JENNINGS and BALDWIN, JJ., and INGLIS and O'SULLIVAN, Superior Court Judges.

INGLIS, Superior Court Judge.

Upon the trial of this action for libel the jury returned a verdict for the plaintiff in the amount of $7000. The defendant has appealed from the judgment and from the denial of its motion to set aside the verdict, assigning errors in the charge, in rulings on evidence and in the denial of its several motions for a mistrial and its motion to set aside the verdict, particularly upon the ground that it was excessive. It has also assigned error in twenty-five paragraphs of the court's finding. These latter assignments are entirely without merit and call for no discussion.

So far as they relate to the appeal from the judgment, the essential facts which the plaintiff offered evidence to prove and claimed to have proved are as follows: The plaintiff had been a resident of West Haven for nineteen years. After finishing the first year of high school he spent two years assisting his father in the conduct of a meat and grocery business in West Haven. He then entered the United States navy and served therein for twenty-nine months. After his discharge he purchased the business of a neighborhood grocery store in New Haven known as Tad's Corner Store and operated it from December, 1945, to August, 1946. The defendant published a weekly newspaper, known as the Sunday Herald, which had a wide circulation in West Haven and New Haven and indeed throughout the state. In the edition of that newspaper dated May 26, 1946, there was published the article set forth in the footnote. 1 It had been written by Elmer J. McCollum, a reporter employed by the defendant, and had been approved by F. William Davidson, who was in charge of the defendant's New Haven office. The article was based solely upon such information as McCollum had obtained from attending the proceedings against Potoniec in the City Court of New Haven referred to in the article and from reading the police record concerning that prosecution. The gist of the information so obtained was that on April 18 Potoniec had been in Proto's place of business and, after hearing him tell a customer that he had no butter to sell, had persuaded Proto to hand him $20 upon his representation that, through his brother-in-law, he could acquire a case of butter for Proto for $15; that two days later Potoniec had reported to Proto that because his brother-in-law had been injured there would be a delay in getting the butter but that he now knew that he could get two cases of butter if Proto would advance him another $10; that Proto had then paid Potoniec $10 and that Potoniec had never delivered any butter. It was a matter of common knowledge that butter was in short supply. Neither McCollum nor Davidson had any information that the plaintiff had ever engaged in any 'black-market' dealings or intended to or that he had made any 'tie-in' sales or intended to. Prior to the publication of the article neither McCollum nor Davidson had made any effort to check the facts except as they had obtained them from the police report and at the hearing in the City Court. They had not interviewed the plaintiff nor had they talked with the city attorney or any official of the Office of Price Administration.

The plaintiff claimed that the publication was made with malice in the following particulars: The plaintiff was given no opportunity to see the article before it was published; it was not fair comment on news of public interest; it was not published in the performance of a duty owed the public; the defamatory charge was recklessly made in disregard of the plaintiff's rights and without regard to the consequences that might result to him and his reputation; the defamatory charge was made from improper and unjustifiable motives, including an intention to heap ridicule upon the plaintiff and to entertain the public to the embarrassment and humiliation of the plaintiff; there was no sufficient occasion or excuse for such publication; it was made from a desire to publish a sensational story for the purpose of swelling the circulation of the defendant's paper; it manifested an entire indifference as to whether the charge was true or false and whether the plaintiff was injured or not; and the defendant used the publication to increase its profit and to minister to the public appetite for scandal.

At the time of the publication, the plaintiff claimed, there was no law or governmental regulation limiting the quantity of butter which might be sold or delivered to any retailer by a wholesaler, nor was there a minimum price which a wholesaler could charge for butter. The defendant, however, meant by the article that the plaintiff in his business was engaged in dishonest, unfair and illegal trade practices; that he exacted illegal, excessive and exorbitant prices for his goods; and that he was engaged in black-market activities in violation of federal price laws and regulations. The publication was false and defamatory. The article was read by many of the plaintiff's customers, friends and acquaintances; they were thereby led to stop patronizing the plaintiff's business, and a loss of profits resulted. The publication of the article caused the plaintiff great annoyance, embarrassment and shame.

The defendant offered evidence to prove and claimed that it had proved that the facts set forth in the article were true, that the article had been prepared by a reporter of long experience upon the basis of information obtained from official sources. It was published as current news in good faith, with an honest belief that the statements therein were true and a proper subject to be reported, and without malice. No retraction had been demanded. The defendant also claimed that the publication had no effect on the plaintiff's business and that the plaintiff had failed to prove any special damages of any sort.

The defendant claims that, in the charge to the jury, there were errors both of commission and of omission. No consideration should be given to the former except as they are connected with the latter, since the defendant failed to object to any of the portions of the charge as given which it now criticizes. Practice Book, § 156. Instead, defendant's counsel addressed the court as appears in the footnote. 2 This statement by counsel could be regarded as a withdrawal or waiver of any exception to the charge. Jacek v. Bacote, 135 Conn. 702, 705, 68 A.2d 144. We have decided, however, to consider the claimed errors of omission relating to the court's failure to comply with four of the defendant's requests to charge. Three of these requests were, in substance, that the plaintiff could not recover unless he proved both that the publication was false and that it was published with malice, or, lacking the latter, he could recover only if he proved special damage, and that as a matter of law the plaintiff had failed to prove either malice or special damage. It is apparent from the finding that there was evidence that as a result of the publication there had been a diminution of the plaintiff's business with consequent loss of profits. It is also apparent that there was evidence from which the jury could infer malice. It follows that the defendant was not entitled to a charge that as a matter of law these elements had not been proved.

In the charge the court distinctly told the jury that it was essential to a recovery by the plaintiff that the publication be found by them to be false. It read to them § 7983 of the General Statutes as follows: 'In any action for a libel the defendant may give proof of intention; and unless the plaintiff shall prove either malice in fact or that the defendant, after having been requested by him in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, he shall recover nothing but such actual damage as he may have specially alleged and proved.' It then emphasized the fact that 'the plaintiff must by a fair preponderance of the evidence prove malice in fact or he cannot recover, or he can recover nothing except such actual damages as he may have specifically alleged and proved.' In another part of the charge the distinction between general damages and special damages was accurately explained. The court also fully and accurately defined malice in fact as not necessarily meaning hatred, spite or ill will against the plaintiff but as meaning that there must have been some improper or unjustifiable motive in publishing the article. Sandora v. Times Co., 113 Conn. 574, 579, 582, note, and cases cited at page 580, 155 A. 819. It is, therefore, clear that the court covered fully in the charge everything requested by the three requests in question in so far as they contained correct statements of the law applicable to the case.

The fourth request was that the court charge that the article complained of was not libelous per se and therefore that the plaintiff could not recover damages against this defendant in the absence of proof of special damage. The trial court refused to charge in compliance with this request and, on the contrary, charged as follows: 'The words in the article complained of, among other things, fairly import to charge the plaintiff with carrying on 'black market' operations as to butter in violation of the law and regulations. The words in the article tend to disparage the plaintiff in his business by intimating that he was dealing in 'black market' butter in violation of law and regulations. They tend to...

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