Sweet v. Post Pub. Co.
| Decision Date | 11 September 1913 |
| Citation | 215 Mass. 450,102 N.E. 660 |
| Parties | SWEET v. POST PUB. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles R. Elder, of Boston, for plaintiff.
Elder Whitman & Barnum and James T. Pugh, all of Boston, for defendant.
This is an action of tort to recover damages for the publication of an alleged libel upon the plaintiff, an attorney at law, in the 'Boston Post' of August 13, 1907, a newspaper published by the defendant. The article complained of purported to give the names of six persons who had been indicted by the Suffolk county grand jury for conspiracy to defraud persons unknown and circumstances connected with their arrest. Amongst the names given as those of the persons indicted and arrested was that of the plaintiff. There was also a paragraph in the same article giving particulars as to the age, residence and profession of 'Mr. Sweet,' which was descriptive of the plaintiff in the particulars mentioned. The article was printed in what may be fairly described as a highly sensational manner. The declaration was in three counts. The first count was in the statutory form. The second and third counts averred that the plaintiff was an attorney at law and that the alleged libel had greatly injured him in his reputation and had caused him great loss and damage in his profession. The answer admitted publication but denied any malice, and set up in substance that the article was published with reasonable care, on a privileged occasion, about another person whose name was similar to that of the plaintiff, but that in spite of such care a mistake occurred and that on discovering the mistake the defendant promptly published a retraction.
There was a verdict for the plaintiff and the case is here on exceptions by the defendant to a matter of evidence and to the refusal of the presiding judge to give certain rulings asked for and to certain instructions that were given.
It was stated at the trial by the plaintiff's attorney that no claim of express malice was made.
The principal contention of the defendant is that the occasion was one of privilege or qualified privilege, and that it is not liable for the consequences of a mistake honestly made in a bona fide attempt, in the exercise of reasonable care and diligence, to get at the facts for publication.
The investigation and report by the grand jury constituted a judicial proceeding, and, in the absence of express malice, a fair and correct report of it by the defendant in the newspaper published by it was privileged. Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318. Kimball v. Post Publishing Co., 199 Mass. 248, 85 N.E. 103, 19 L. R. A. (N. S.) 862. The privilege attaching to such reports rests, however, upon a somewhat different ground from that on which privileged communications between private persons rest. In them the person making the communication has an interest to protect or a duty to perform, or his relation to the party to whom the communication is made is of a confidential nature, and the law holds that in such cases, if what is said or written is communicated in good faith, in the belief that it is true, and with no malevolent motive and for the purpose of protecting or promoting his interest, or in the performance of a duty incumbent upon him, social or legal or moral, and is justified or required by the nature of the relations existing between him and the person to whom the communication is made, and does not go beyond what is fairly warranted by the occasion, the communication is privileged. But no duty rests upon the publishers of a newspaper to report judicial proceedings, and their interest in such matters is only that which all the rest of the community has. It is for the interest of every one that crime should be detected and punished, and every one has the highest interest in whatever pertains to the proper administration of justice. It is upon these grounds that reports of judicial proceedings fairly and correctly made are privileged. Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318. Kimball v. Post Publishing Co., 199 Mass. 248, 85 N.E. 103, 19 L. R. A. (N. S.) 862; Kimber v. The Press Association, Ltd., [1893] 1 Q. B. 65. In order to be privileged such reports must be not only fair and impartial, but they also must be accurate. The same principle which requires that they should be fair and impartial requires that they should be accurate, at least in regard to all material matters. Kimber v. The Press Association, Ltd., supra. A distorted report cannot in the nature of things form the basis for a correct judgment. In a sense it may make no difference to the public so far as the course of judicial proceedings is concerned, whether it is John Smith or John Jones who is arrested. But the administration of justice would be a farce or worse than a farce if the guilty escaped and the innocent were punished, or if the rights of parties were determined in a manner in which according to plain principles of justice they should not be. It is of the highest consequence therefore, in order to enable the public to judge rightly, that a report of judicial proceedings should be not only fair and impartial but should be accurate also. The importance of a full and correct statement in regard to legal matters is well illustrated in actions for malicious prosecution where the defense relied on is that in procuring the arrest the defendant acted upon the advice of counsel. See Black v. Buckingham, 174 Mass. 102, 54 N.E. 494. If the report had to be accurate, then the defendant is not protected by the alleged privilege. For, admittedly, the plaintiff was not the person indicted. Nor can the defendant avail itself of the doctrine laid down in Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N.E. 462, 20 L. R. A. 856, that in order to render a defendant liable the libel must have been published of and concerning the plaintiff, and it is not to be deemed to have been so published if through mistake another person than the one intended is named. It was in effect conceded at the trial that the plaintiff was the person meant although the naming of him was due to a mistake, and the presiding judge so stated in his charge without any objection being made thereto.
The defendant contends, however, that it is not liable and is entitled to avail itself of the privilege extended to fair impartial and accurate reports of judicial proceedings if it exercised reasonable care and diligence in endeavoring to ascertain what the facts were before it published the report and the mistake occurred in spite of such care and diligence and was an honest mistake. It would seem that that defense was disposed of, so far at least as this commonwealth is concerned, by the case of Burt v. Advertiser Co., 154 Mass. 238, 28 N.E. 1, ...
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