Sinclair v. Gannett

• Decision Date: 18 October 1952
• Citation: 91 A.2d 551,148 Me. 229
• Parties: SINCLAIR v. GANNETT et al.
• Court: Maine Supreme Court

Page 551

91 A.2d 551

148 Me. 229

SINCLAIR v. GANNETT et al.

Supreme Judicial Court of Maine.

Oct. 18, 1952.

Lausier & Donahue, Biddeford, for plaintiff.

Berman, Berman & Wernick, Portland, for defendant.

Before THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

WILLIAMSON, Justice.

This is an action for libel against the Guy Gannett Publishing Company, publisher of the 'Portland Press Herald', a daily newspaper, and two of its employees, Charles E. Dawson, a staff writer, and John C. Olson, a photographer. The defendants severally bring forward exceptions to the overruling of pleas in abatement and special demurrers.

In substance the charge is that the Imperial Cafe, owned and operated by the plaintiff, was identified as the Calumet Club, described as a gambling place, in a photograph published in the newspaper in connection with an illustrated article about gambling in the City of Biddeford. The statement in the declaration reads:

'and immediately beneath said pictures appeared the following: 'By Staff Photographer Olson (meaning the defendant Olson) Gambling Sites--Gambling places in Biddeford, which have brought the ire of a special state prosecutor (meaning William H. Niehoff of Waterville appointed by Governor Payne's Attorney General, who led the investigation) who described them as 'Nauseating', are shown in the above photos, and also located on the specially-drawn map by Staff Artist Sid Maxell. In photo Number 4 (meaning the photo of the Imperial Cafe) is where the Calumet Club, largest gambling place in the mill city, was located at 17 Alfred Street, next door to the Salvation Army; Number 7, wooden stairs lead to the Coffee House over a fruit store at 35 Main Street, opened by the operator of the Calumet Club when business got too heavy in the Calumet; Number 1, poker games and blackjack were run in this pool parlor at 73 Elm Street, outside the Saco-Lowell Shops; Number 8, the shoe repair shop at 12 Water Street, where the owner ran a gambling spot; Number 2, picture of the padlocked door to the West End Club at 240 Main Street; Number 3, shoe shine parlor at 39 1/2 Franklin Street, where gin rummy was a specialty of the house, and other card games flourished. Not shown in photos, but located by their numbers on the map are also the Greek Coffee House, (number 5) on the second floor at 87 Main Street; and the Billiard Parlor at 53 Main Street, (Number 6), where a Sanford man operated a gambling spot', said foregoing statements clearly differentiating those 'sites' located on the first floor and on the second floor of the building referred to, and associating the plaintiff with Lucien Therrien by said picture or photo of said Imperial Cafe and the aforesaid explanatory statement that 'In photo number 4 (meaning the photo of the Imperial Cafe) is where the Calumet Club, largest gambling place in the mill city, was located at 17 Alfred Street, next door to the Salvation Army', thus stating the plaintiff's Imperial Cafe was the location of the Calumet Club operated by said Lucien Therrien as referred to in said articles, said picture being unauthorized and printed and published without the knowledge or consent of the said plaintiff, and said articles published and circulated as stated aforesaid, the essential parts being as follows:'

Exceptions to the overruling of a plea in abatement for misnomer were waived by the publisher and so are not before us. In a proper effort to narrow the issues the publisher conceded in argument that if the article as written could be applied to the plaintiff then it would be a defamation. The defamatory character of the published material is therefore not questioned for purpose of testing the demurrers.

The other pleas in abatement by the defendants are on the ground of misjoinder of defendants. The same point is made in the special demurrers. No useful purpose can be served by keeping alive a dilatory plea where the same question is presented and argued on demurrer. We do not consider precisely under what circumstances a plea in abatement is or is not waived by a subsequent plea. It is sufficient for present purposes to say that the plea of each defendant in abatement for misjoinder was waived upon filing of the demurrer. See 1 C.J.S., Abatement and Revival, § 211, p. 271; 1 Am.Jur. 65, Sec. 71. The exceptions in each instance are overruled.

The special demurrers now require attention. The first stated ground in each instance is misjoinder of defendants. The contention is that the plaintiff has improperly joined the employer, liable solely under the principle of repondeat superior, with its employees as joint tort-feasors.

In the case of the staff writer--and the case of the photographer is identical--a further objection is that he is not charged with publication of the libel. The plaintiff has alleged publication by the newspaper publisher 'with the knowledge and consent of the other defendants', meaning the staff writer and the photographer. Such a statement is not an allegation that the staff writer or the photographer published the defamatory matter. The plaintiff failed to allege an essential element in the action of libel. No cause of action was stated against the staff writer or the photographer. For this reason alone, without consideration of the first ground, the exceptions by the staff writer and the photographer are sustained. Their demurrers should have been upheld. Macurda v. Lewiston Journal Co., 104 Me. 554, 72 A. 490; Milner v. Hare, 126 Me. 14, 135 A. 522; Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360; 53 C.J.S., Libel and Slander, § 169, p. 264 et seq.

The rulings in favor of the staff writer and the photographer although not in terms directed to the publisher have a decisive bearing upon the disposition of the publisher's first stated ground of demurrer. The declaration is sufficient and adequate in so far as the publisher alone is concerned. The publisher may not object, nor does it, to the failure to set forth a cause of action against its codefendants. The rule is stated in 6 Ency. of Pleading and Practice, page 310, as follows:

'For Misjoinder of Defendants--Where there is a misjoinder of defendants, only the party defendant so misjoined should demur. And when a complaint against several defendants fails to state a cause of action against one of them, he alone may demur, and not his codefendants.'

See also Wood v. Decoster, 66 Me. 542; 71 C.J.S., Pleading, § 217, p. 424; 41 Am.Jur. 454, Sec. 230.

The objection by the publisher is that the three defendants are jointly charged with libel under circumstances which make such a charge impossible.

Since no case is stated against the staff writer and the photographer, and thus no charge of joint liability, the objection is unfounded. It is sufficient, unless and until the declaration is amended, only to mention two principles of law. First, two or more defendants may be joined in an action for publishing a libel. 1 Chitty on Pleadings, (16th American Ed.) 127; Gould on Pleading, 3rd. Ed. 210; 53 C.J.S., Libel and Slander, § 159, p. 243; 33 Am.Jur. 186, Sec. 198, and cases cited; Miller v. Butler, 6 Cush. 71, 60 Mass....