Sanford v. Boston Herald-Traveler Corp.

• Citation: 61 N.E.2d 5,318 Mass. 156
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 02 May 1945
• Parties: SANFORD v. BOSTON HERALD-TRAVELER CORPORATION.

318 Mass. 156

61 N.E.2d 5

SANFORD

v.BOSTON HERALD-TRAVELER CORPORATION.

Supreme Judicial Court of Massachusetts, Essex.

May 2, 1945.

Exceptions from Superior Court, Essex County; Spalding, Judge.

Action for libel by Wallace Sanford against Boston Herald-Traveler Corporation. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.Before FIELD, C. J., and LUMMUS, QUA, and DOLAN, JJ.,

F. P. Garland, of Boston, for plaintiff.

S. C. Rand and B. Aldrich, both of Boston, for defendant.

LUMMUS, Justice.

The defendant on April 11, 1941, published as an item of news in its newspaper the unquestionable fact that one Emerson had sued the plaintiff for the alleged ‘alienation’ of Emerson's wife, charging in his declaration that the plaintiff had had ‘clandestine meetings and appointments' with her and had ‘induced her to leave home.’ It appeared that later, in February, 1942, when the case of Emerson against the present plaintiff was reached for trial, Emerson offered no evidence and a verdict in faovr of the present plaintiff was returned by order of the court. On February 21, 1942, the defendant published an account of that action under the heading “No evidence'; Suit for alienation fails.' The plaintiff in the present action for libel obtained a verdict against the defendant for $2,000, and the case is here on the defendant's exceptions.

The first question argued concerns the defence of privilege. The defendant contends that the writ and declaration in the ‘alienation’ case were public records, and that it had the right to publish their contents as soon as they were filed, without waiting for any judicial action.

Doubtless the writ and declaration fell within the definition of ‘public records' in G.L.(Ter.Ed.) c. 4, § 7, Twenty-sixth. But that definition exists merely for the purpose of construing the words ‘public records' when used in a statute. Allen v. Kidd, 197 Mass. 256, 259, 84 N.E. 122. A public record or public document is not admissible in evidence merely because it is such. Allen v. Kidd, supra; Commonwealth v. Slavski, 245 Mass. 405, 415-417, 140 N.E. 465, 29 A.L.R. 281. And the statute, G.L. (Ter.Ed.) c. 66, § 10, making public records open to public inspection (Direct-Mail Service, Inc., v. Registrar of Motor Vehicles, 296 Mass. 353, 5 N.E.2d 545, 108 A.L.R. 1391;Hurley v. Board of Public Welfare of Lynn, 310 Mass. 285, 37 N.E.2d 993;Hobart v. Commissioner of Corporations and Taxation, 311 Mass. 341, 41 N.E.2d 38; compare Hardman v. Collector of Taxes of North Adams, 317 Mass. 439, 58 N.E.2d 845) has no application to the files of courts. Cowley v. Pulsifer, 137 Mass. 392, 396,50 Am.Rep. 318. It is within the discretion of a court to impound its files in a case and to deny public inspection of them, and that is often done when justice so requires. Parker v. Republican Co., 181 Mass. 392, 396, 63 N.E. 931;Schmedding v. May, 85 Mich. 1, 48 N.W. 201,24 Am.St.Rep. 74.

Moreover, we are not prepared to concede that the general right of inspection of public records enables one in every instance to publish such records broadcast without regard to the truth of defamatory matter contained in them. Cowley v. Pulsifer, 137 Mass. 392, 396,50 Am.Rep. 318;Parker v. Republican Co., 181 Mass. 392, 396, 63 N.E. 931. Compare Conner v. Standard Publishing Co., 183 Mass. 474, 479, 67 N.E. 596.

The doctrine long established in this Commonwealth is that the right to report proceedings in the courts does not extend to reporting accusations contained in papers filed by a party and not yet brought before a judge or magistrate for official action. Cowley v. Pulsifer, 137 Mass. 392, 394,50 Am.Rep. 318;Kimball v. Post Publishing Co., 199 Mass. 248, 85 N.E. 103, 19 L.R.A.,N.S., 862, 127 Am.St.Rep. 492;Lundin v. Post Publishing Co., 217 Mass. 213, 104 N.E. 480, 52 L.R.A,N.S., 207; Peck v. Wakefield Item Co., 280 Mass. 451, 455, 183 N.E. 70;Thompson v. Boston Publishing Co., 285 Mass. 344, 346-348, 189 N.E. 210. As was said in Metcalf v. Times Publishing Co., 20 R.I. 674, 678, 40 A. 864, 866,78 Am.St.Rep. 900, ‘The right of a party to make charges gives no right to others to spread them.’ It is elementary law that a defendant cannot free himself from responsibility for spreading defamation by stating that the charges were made by another, and not by the defendant. Maloof v. Post Publishing Co., 360 Mass. 279, 280, 28 N.E.2d 458.

The defendant urges us to abandon the doctrine of the Cowley and Lundin cases, and to adopt instead the innovation made by a distinguished court in Campbell v. New York Evening Post, Inc., 245 N.Y. 320, 157 N.E. 153, 52 A.L.R. 1432 and note, followed in Lybrand v. State Co., 179 S.C. 208, 184 S.E. 580, 104 A.L.R. 1118, and Paducah Newspapers, Inc., v. Bratcher, 274 Ky. 220, 118 S.W.2d 178. The defendant contends in substance that the doctrine of our cases does not prevent grievous harm to an individual falsely accused at some preliminary hearing and later exonerated, and that the adoption of the doctrine of the Campbell case would result in the removal of uncertainty and danger from the business of newspapers with only a small additional risk of harm to maligned individuals. We confess that we are little moved by that argument. Public policy requires a glare of publicity upon the doings of courts, even though individual litigants suffer unmerited harm. But the publication of accusations made by one party against another in a pleading is neither a legal nor a moral duty of newspapers. Enterprise in that matter ought to be at the risk of paying damages if the accusations prove false. To be safe, a newspaper has only to send its reporters to listen to hearings rather than to search the files of cases not yet brought before the court. The older doctrine of the Cowley and Lundin cases still seems to us well founded in principle and without injustice in its practical...