Thompson v. Boston Pub. Co.

• Decision Date: 16 February 1934
• Citation: 285 Mass. 344,189 N.E. 210
• Parties: THOMPSON v. BOSTON PUB. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 344

189 N.E. 210

THOMPSON

v.BOSTON PUB. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 16, 1934.

Exceptions from Superior Court, Suffolk County; M. Morton, Judge.

Action of tort by Fred H. Thompson against the Boston Publishing Company. A verdict was directed for defendant, and plaintiff brings exceptions.

Exceptions overruled.

See, also, 279 Mass. 176, 181 N. E. 249.

E. A. Whitman, of Boston, for plaintiff.

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

CROSBY, Justice.

This is an action of libel brought against the defendant for a publication in the Boston Traveler. The answer sets up truth and privilege. At the trial in the superior court the judge at the conclusion of the evidence directed a verdict for the defendant. The case is before this court on exception to that ruling and on exceptions to the admission and exclusion of evidence. The evidence presents a situation substantially as that described in Thompson v. Globe Newspaper Co., 279 Mass. 176, 181 N. E. 249, where cases involving the same facts were before this court.

The alleged libel here relied on was published in the Boston Traveler on May 18, 1927, in the following form: ‘Arrest Post Reporter in Smith Letter Case Watchman at Atlantic Monthly Plant Also Held, Accused of Stealing Copy for Boston Newspaper Man Fred H. Thompson, a Boston Post reporter, of 150 Pleasant Street, Newton Centre, and William E. Callahan, watchman of the Rumford Press, Concord, N. H., were arrested today in connection with the larceny of copies of the Atlantie Monthly containing Gov. Al. Smith's article on Catholicism. Thompson was arrested by Inspector B. J. Goode of the Newton police force on a fugitive from justice warrant. Callahan was arrested at Concord charged with larceny. The warrant for Thompson was issued today in the Newton district court at the request of J. E. Silva, chief of police of Concord, N. H., and Herbert W. Rainie, solicitor of Merrimac county, N.H. The specific charges in the warrant alleged that Thompson ‘procured the commission of larceny by Callahan of eight printed pages, for which he gave Callahan $600.’ Thompson was bailed by David P. Shea in $1,000, for hearing tomorrow.'

The plaintiff contends that the defendant has not made out the defence of privilege to publish the facts relating to the issuance of the warrant on the criminal complaint which had been made, despite the fact that the privilege of such a publication was upheld on similar facts in the cases reported in 279 Mass. 176, 186–187, 181 N. E. 249. He contends that the opinion in those cases proceeded on a misconception of the point sought to be made which in effect as it was there, and as now understood, is that if no judge was present when the warrant was issued the proceeding was not a judicial one within the privilege rule. The plaintiff then as now relied upon what was said in Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318, respecting the unprivileged nature of the publication of the contents of papers merely filed in the office of the clerk of the court upon which no judicial action has been taken. See Conner v. Standard Publishing Co., 183 Mass. 474, 479, 67 N. E. 596;Kimball v. Post Publishing Co., 199 Mass. 248, 249, 85 N. E. 103,19 L. R. A. (N. S.) 862, 127 Am. St. Rep. 492;Lundin v. Post Publishing Co., 217 Mass. 213, 216, 104 N. E. 480,52 L. R. A. (N. S.) 207. But this complaint and the warrant issued thereon were not such papers. The warrant was issued under the seal of the court and bore the teste of the judge of the court. It purported to be a proceeding before the court and the plaintiff was not permitted to show the contrary. The judicial nature of the proceeding being thus established, the publication is held to be privileged. See Lundin v. Post Publishing Co., 217 Mass. 213, 215, 217, 104 N. E. 480,52 L. R. A. (N. S.) 207. If the plaintiff were permitted to show, or the court should take notice that no judge was present when this warrant was issued upon the theory that it would not contradict the record (since clerks of courts apparently may issue warrants under G. L. (Ter. Ed.) c. 276, § 16, the rendition statute, and since such a warrant as thus issued should be the warrant of the court, see Commonwealth v. Posson, 182 Mass. 339, 342, 65 N. E. 381) still this would be a judicial proceeding within the privilege rule. The privilege is not limited to proceedings before a judge. See Odgers, Libel and Slander (6th Ed.) 191. As was said in Lundin v. Post Publishing Co., 217 Mass. 213, at page 216, 104 N. E. 480, 481,52 L. R. A. (N. S.) 207: ‘This principle [privilege] is limited to matters which really have been made the subject of judicial action’ as opposed to the mere filing of papers with a clerk of court as was the case in Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318. Although in the issuance of a warrant in such a case a clerk does not necessarily become a judicial officer, he does exercise judicial powers; and hence, when the clerk issues a warrant, the proceeding is one essentially judicial as that phrase is understood in the law of privilege. See Ormond v. Ball, 120 Ga. 916, 920, 48 S. E. 383. The decisions in Stanley v. Webb, 4 Sandf. (6 N. Y. Super. Ct.) 21, and Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548,78 Am. Dec. 285, cited by the plaintiff, are not the law of this commonwealth. Stuart v. Press Publishing Co., 83 App. Div. 467, 82 N. Y. S. 401, relied on by the plaintiff, apparently is overruled by Campbell v. New York Evening Post, Inc., 245 N. Y. 320, 157 N. E. 153, 52 A. L. R. 1432, which held that the mere filing of a pleading is a public and official act in the course of judicial proceedings and that the publication of a fair report thereof is privileged. There is nothing in this record requiring a conclusion different from what was decided in 279 Mass. 176, 186, 187, 181 N. E. 249. Even assuming it appeared that no judge was present when the warrant in this case was issued, the privilege would still apply. The facts show that the warrant was issued in a judicial proceeding, and the plaintiff admitted that he was arrested in connection with the Smith letter case. It follows that the publication of the proceedings was therefore privileged. These questions are settled by what was decided in Thompson v. Globe Newspaper Co., 279 Mass. 176, 186, 188, 189, 181 N. E. 249.

The plaintiff further complains that the report of these judicial proceedings was not fair and accurate nor true. See Sweet v. Post Publishing Co., 215 Mass. 450, 452, 453, 102 N. E. 660, 47 L. R. A. (N. S.) 240, Ann. Cas. 1914D, 533. His principal contention in this respect is that the article alleged that the plaintiff and one Callahan were arrested in connection with ‘the larceny of copies of the Atlantic Monthly’; and that the warrant charged that the plaintiff ‘procured the commission of larceny by Callahan of eight printed pages, for which he gave Callahan $600.’ Although no such express charge was contained in the warrant, a fuller specification of the charges appears in the complaint, which was a part of the same proceeding. The fact therefore that these charges were not expressly contained in the warrant would not be material. No question for the jury was presented by reason of the fact that the charges as set forth in the alleged libel differed somewhat from those in the complaint. The article as a whole recited that the plaintiff was charged with procuring the crime of larceny. That this was the fact appears from the complaint. The statements in the article as to the method by which this was accomplished did not change the nature of the crime charged, nor constitute an independent defamatory imputation. Bresslin v. Sun Printing & Publishing Association, 177 App. Div. 92, 163 N. Y. S. 915.The other differences which existed are immaterial. The article in these particulars was substantially true and accurate and entirely fair. This is all that was required. See Conner v. Standard Publishing Co., 183 Mass. 474, 67 N. E. 596;American Publishing Co. v. Gamble, 115 Tenn. 663, 90 S. W. 1005;Stone v. Hutchinson Daily News, 125 Kan. 715, 266 P. 78, 58 A. L. R. 718. There is nothing in Sweet v. Post Publishing Co., 215 Mass. 450, 102 N. E. 660, 47 L. R. A. (N. S.) 240, Ann. Cas. 1914D, 533, to the contrary.

The plaintiff further contends that the fact of his arrest presented a question for the jury, and that a verdict in favor of the defendant could not properly have been directed on that issue. The cases of Mowry v. Chase, 100 Mass. 79, and Commonwealth v. Merrick, 255 Mass. 510, 152 N. E. 377, are cited by the plaintiff in this connection. Although these cases hold that the fact of an arrest presents a question for the jury, it was recognized therein that in an appropriate case this question might be ruled as matter of law. It was considered in 279 Mass. 176, 188, 189, 181 N. E. 249. The charge there was not excepted to, and hence the correctness of the ruling was not open to the plaintiff. To constitute an arrest there must be either a physical seizure of the person by the arresting officer, or a submission to his authority and control. Relying upon the second part of this proposition the plaintiff seeks to avoid a finding of an arrest upon the ground that he did not know that he was arrested, and hence cannot be found to have submitted to the authority of the officer. The return of the officer on the warrant was evidence of the fact of an arrest, see Fisher v. Hamilton, 49 Ind. 341, but it would not be conclusive of the fact in this proceeding. See 3 Wigmore, Evidence, § 1664. Compare Simmons v. Richards, 171 Mass. 281, 50 N. E. 617. Although the plaintiff testified that he was arrested, he contends that he did not learn of that fact at the time of such arrest but was informed of it afterwards. He was entitled to be informed of his arrest at the time it occurred, and if the evidence upon that question...