O'REILLY v. Curtis Pub. Co.

• Decision Date: 02 March 1938
• Docket Number: No. 7022.,7022.
• Parties: O'REILLY v. CURTIS PUB. CO.
• Court: U.S. District Court — District of Massachusetts

22 F. Supp. 359

O'REILLY v. CURTIS PUB. CO.

No. 7022.

District Court, D. Massachusetts.

March 2, 1938.

Dangel & Sherry and Edward M. Dangel, all of Boston, Mass., for plaintiff.

Maxwell E. Foster, of Boston, Mass., Choate, Hall & Stewart, John L. Hall, John M. Hall, and Bailey Aldrich, all of Boston, Mass., for defendant.

McLELLAN, District Judge.

The plaintiff moves that pages numbered 2 and 3 of the defendant's answer to the plaintiff's amended declaration be stricken out. These pages read:

"And further answering, the defendant says that if it ever published or disseminated the written matter annexed to plaintiff's amended declaration as `B,' which includes excerpts annexed as `A,' said written matter in fact constituted an instalment of a work of fiction and that no reference to the plaintiff was made or was intended to be made by the author or by anyone else and that the character O'Reilly was a purely fictitious character and did not refer to any actual person alive or dead and could not under the circumstances of its publication reasonably be taken to refer to any actual person alive or dead.

"And further answering, the defendant says that if it ever published or disseminated the written matter annexed to plaintiff's amended declaration as `B,' which includes excerpts annexed as `A,' said written matter formed the third of four instalments of a novel or work of fiction entitled `George Apley' by J. P. Marquand then appearing in the magazine known as `The Saturday Evening Post'; that the `Table of Contents' of each issue of The Saturday Evening Post in which such an instalment appeared contained the following statement:

"`The names of all characters that are used in short stories, serials and semi-fiction articles that deal with types are fictitious. If the name of any living person is used, it is a coincidence'; that the character O'Reilly was a purely fictitious character, dealt with a type, and did not refer, and was not intended to refer, and could not under the circumstances of its publication reasonably be taken to refer, to any actual person alive or dead; that in the issue in which the first instalment appeared there was published in addition to said statement the following statement from the author, J. P. Marquand:

"`This biographical form has often intrigued me because it has seemed to me an excellent vehicle for fiction if one were writing a novel showing the life and manners of a certain period. By using a wholly imaginary person whose letters are to be collected and whose life is to be written by an imaginary individual, it seemed to me that a narrative could be written from several points of view, that of the biographer, that of the biographer's subject, and those of the subject's relatives and friends. I have attempted this by writing the life and letters of the late George Apley, of Boston, which were compiled by his old literary friend, Horatio Willing, at the request of the late Mr. Apley's family. It is needless to say that both Mr. Apley and Mr. Willing are pure figments of the imagination, yet they both represent types of persons well known in New England, though, perhaps, not so familiar in other parts of the country'; that the said written matter alleged by the plaintiff to have been a libel on him is, under the circumstances of its publication, incapable of any defamatory meaning or of any meaning defamatory of any actual person alive or dead and is not actionable.

"And further answering, the defendant says that if it ever disseminated or published the written matter annexed to plaintiff's amended declaration as `B,' which includes excerpts annexed as `A,' the said written matter alleged by the plaintiff to have been a libel on him is, under the circumstances of its publication, incapable of any defamatory meaning or of any meaning defamatory of any actual person alive or dead; is not libellous per se, and is not actionable without proof of special damages, and none is alleged."

The plaintiff says that the foregoing allegations of the answer amount only to the general issue at common law and that under the Massachusetts Practice Act the matter alleged can be shown under a general denial....