Roketenetz v. Woburn Daily Times, Inc.

• Decision Date: 14 March 1973
• Citation: 294 N.E.2d 579,1 Mass.App.Ct. 156
• Parties: Stanley P. ROKETENETZ, Jr., et al. v. WOBURN DAILY TIMES, INC.
• Court: Appeals Court of Massachusetts

Page 579

294 N.E.2d 579

1 Mass.App.Ct. 156

Stanley P. ROKETENETZ, Jr., et al. v. WOBURN DAILY TIMES, INC.

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 21, 1972.

Decided March 14, 1973.

Norman Kerman, Methuen, for plaintiffs, submitted a brief.

Before HALE, C.J., and ROSE, KEVILLE, GOODMAN, GRANT and ARMSTRONG, JJ.

GOODMAN, Justice.

These are appeals from orders sustaining demurrers to four counts in tort for libel. Each count names as plaintiff a different member of the Roketenetz family which operates a waste disposal business in Woburn. Each of the four counts (hereafter referred to collectively as the declaration) ¹ alleges that the defendant in its newspaper 'did publish in said paper a false and malicious libel . . . with express malice toward the said plaintiff.'

The publication attached to the declaration is an account of a meeting of the board of health of the city of Woburn at which two aldermen 'asked for the cooperation of the new Board members to either convince the Woburn Redevelopment Authority to reassign another location to the Rokenctz (sic) businesses or to effectively police the Roketenetz property so that citizens in the area would not be bothered by foul smelling garbage left in trucks overnight.'

The meeting was held 'in anticipation of tonight's public hearing on the application for a permit to store gas, oil and diesel fuel at the new Roketenetz's business location.'

The account reported that members of the board 'stated that they would do everything in their power to see that the Roketenetz business obeyed the law and washed out their garbage hauling trucks each day.' The chairman 'pointed out, however, that in the past it had been very difficult to deal with the Roketenetz family.' These difficulties as described by the chairman are set out in the footnote. ²

The article then quotes verbatim the discussion at the meeting between Alderman O'Rourke and the superintendent of solid wastes as to the feasibility of preventing spillage and odor problems in the collection of garbage. Alderman Hassett asked 'if there was any way to prevent a truck full of garbage being parked there overnight' and was told by the board of health secretary that it was illegal.

The account ends with a request to the board by Alderman O'Rourke 'that he be immediately informed if there were any complaints about the operations at the new site and stated that he personally would inspect each complaint.'

The defendant demurred on the ground, among others, that the declaration did not state a cause of action. We agree; the demurrers were properly sustained.

The plaintiffs rely on the proposition in Ingalls v. Hastings & Sons Publishing Co., 304 Mass. 31, 34, 22 N.E.2d 657, 659, that 'a demurrer to a declaration in libel cannot be sustained . . . unless the words . . . are incapable of a defamatory meaning' and its corollary that given defamatory words, privilege is 'matter of defence not open on demurrer'. Muchnick v. Post Publishing Co., 332 Mass. 304, 125 N.E.2d 137, dealing with the privilege of fair comment. But see the qualification in Poland v. Post Publishing Co., 330 Mass. 701, 704, 116 N.E.2d 860 and Boston Nutrition Society, Inc. v. Stare, 342 Mass. 439, 443, 173 N.E.2d 812, ('ordinarily not open on demurrer'). This order of pleading based on the common law allocation of the burden of proof (see Restatement: Torts, § 613) derives from the view of defamation as an intentional tort like trespass. Harper & James, Torts, § 5.21. 'A person publishes libellous matter at his peril.' Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245, 28 N.E. 1, 5 (Holmes, J.). '(T)he liability (is) the usual liability in tort for the natural consequences of a manifestly injurious act.' Hanson v. Globe Newspaper Co., 159 Mass. 293, 303, 34 N.E. 462, 465, (Holmes, J., dissenting opinion). (See Sweet v. Post Publishing Co., 215 Mass. 450, 102 N.E. 660). The historical development of libel bears out this analysis. Holdsworth, 8 History of English Law, 365--367, 375 et seq. Plucknett, A Concise History of the Common Law (4th ed.) 466 et seq.

However, the analysis is now qualified by the constitutional limitation imposed beaten while attempting to inspect the Roketenetz property on Old New and--particularly applicable in this case--Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 and PRIESTLEY V. HASTINGS & SONS PUBLISHING CO. OF LYNN, MASS., 271 N.E.2D 628.^A See TWOHIG V. BOSTON HERALD-TRAVELER CORP., MASS., 291 N.E.2D 398^B.

The publication in this case is strikingly similar to the newspaper reports in Priestley v. Hastings & Sons Publishing Co. of Lynn of meetings of the selectmen in Saugus at which the town manager made defamatory charges, which a jury could have found to be false, against an architect commissioned to build a new junior high school. The Supreme Judicial Court in the Priestley case, supra, 271 N.E.2d 628, following Rosenbloom v. Metromedia, Inc. and Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6, held that the publication 'related to the plaintiff's involvement in an event of public or general concern' and applied the Times standard. Under that standard it is a matter of proof by the plaintiff (376 U.S. at 284, 84 S.Ct. 710) that the publication was made 'with knowledge that it was false or with reckless disregard of whether it was false or not' (376 U.S. at 279--280, 84 S.Ct. at 726), 'that the lie was a knowing one, or uttered in reckless disregard of the truth.' Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597.

The Times case, as extended by Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, thus established a qualified constitutional privilege to publish false and defamatory material about matters of public concern. It adopted the view of the Kansas Court in Coleman v. MacLennan, 78 Kan. 711, 723, 98 P. 281, 285, that 'the occasion gives rise to a privilege qualified to this extent. Any one claiming to be defamed by the communication must show actual malice, or go remediless. This privilege extends to a great variety of subjects and includes matters of public concern, public men, and candidates for office.' See Kalven, The New York Times Case: A Note on 'the Central Meaning of the First Amendment,' 1964 Sup.Ct.Rev. 191, 203. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 587.

The publication in this case clearly comes within the constitutional privilege. It reports a meeting of the board of health concerning garbage disposal and the grant of a permit to store gasoline, etc., at a new location about which a public hearing was scheduled. These were obviously matters of public concern. See Arizona Biochemical Co. v. Hearst Corp., 302 F.Supp. 412 (S.D.N.Y.). The publication cannot, therefore, be the basis for a cause of action unless the declaration contains an allegation adequate to comply with the Times standard. The introduction at trial of this article and the fact of its publication, without more, would result in a directed verdict for the defendant at the close of the plaintiffs' case unless the plaintiffs had also introduced sufficient evidence to permit the trier to find the facts that it was false and that the defendant either knew it was false or published the article recklessly, 'in fact entertain(ing) serious doubts as to the truth of his publication.' St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, quoted in TWOHIG V. BOSTON HERALD-TRAVELER CORP., MASS., 291 N.E.2D 398.^C See Priestley v. Hastings & Sons Publishing Co. of Lynn, supra; 'TRIPOLI V. BOSTON HERALD-TRAVELER CORP., MASS., 268 N.E.2D 350.^D Since such 'substantive facts (are) necessary to constitute the cause of action' when the Times privilege applies, they must be pleaded. G.L. c. 231, § 7, Second. ³ Gabriel v. Borowy, 324 Mass. 231, 234--235, 85 N.E.2d 435; Cluff v. Picardi, 331 Mass. 320, 322, 118 N.E.2d 753. Mottla, Civil Practice (3rd ed.) § 275.

This is consistent with the indications in Haynes v. Clinton Printing Co., 169 Mass. 512, 515, 48 N.E. 275, 276 ('(T)he defendant can escape liability (on) the ground of privilege, if any such appears on the face of the declaration') and Dow v. Long, 190 Mass. 138, 141, 76 N.E. 667, 669 ('(U) nless the averments of the declaration show a sufficient occasion and justification for what the defendant is alleged to have done, this (publication) is enough to constitute a cause of action'). ⁴ See Adams v. Clapp, 346 Mass. 245, 248--249, 190 N.E.2d 886; Cf. Peck v. Wakefield Item Co., 280 Mass. 451, 456, 183 N.E. 70.

Indeed, the Supreme Judicial Court has held that where an absolute privilege appears on the face of the declaration, it is subject to demurrer though, as with a qualified privilege, '(i)f the defendant relies upon the defence of absolute privilege, he has the burden of proving it.' Restatement: Torts, § 613, comment f. Mezullo v. Maletz, 331 Mass. 233, 118 N.E.2d 356 (physician's certificate in commitment proceedings). Perry v. E. Anthony & Sons, Inc., 353 Mass. 112, 228 N.E.2d 700 (report of litigation in a Federal court); Aborn v. Lipson, 357 Mass. 71, 256 N.E.2d 442 (testimony of witness); See Cluff v. Picardi, 331 Mass. 320, 323, 118 N.E.2d 753, 754, holding a bill of complaint demurrable where a memorandum of an oral contract incorporated by reference in the bill of complaint was inadequate to satisfy the statute of frauds. The court said--particularly applicable here--'If the plaintiff at a hearing on the merits should prove all the allegations of fact properly set forth in his bill, without more, he would lose his case for lack of a sufficient memorandum'. See also Weiner v. Lowenstein, 314 Mass. 642, 51 N.E.2d 241 (declaration disclosing defence of statute of frauds held demurrable); Reavey v. Guild of St. Agnes, 284 Mass. 300, 187 N.E. 557 ...