Towle v. St. Albans Pub. Co.

Decision Date01 November 1960
Docket NumberNo. 347,347
Citation122 Vt. 134,165 A.2d 363
CourtVermont Supreme Court

Lisman & Lisman, Burlington, for plaintiff.

John Mulvey, St. Albans, for defendant.


SMITH, Justice.

This is an action for libel, brought against the defendant corporation, the owner and publisher of the St. Albans Messenger, a daily newspaper published in St. Albans, Vt. The declaration alleged that on Nov. 25, 1957, the defendant composed and published in the St. Albans Messenger the following article concerning the plaintiff:


'Ronald Towle of Fairfax, an air policeman, formerly of Emosburg, pleaded guilty to driving while intoxicated. He paid a fine of $50 and cost of cated. He paid a fine of $50 12.50'

The printing errors shown above appear in the original newspaper article.

The declaration also alleged that on Nov. 26, 1957, the defendant composed and published in the St. Albans Messenger the following article concerning the plaintiff:


'A man who five months ago was suspended from the Franklin County Sheriff's Patrol was arraigned in municipal court here yesterday: pleading guilty to driving for the past nine years on a suspended license.

'Ronald Towle, of Fairfax, who was dropped from the patrol in June for 'misuse of authority' was brought before Municipal Court Judge Carl S. Gregg, and was fine $50, plus costs.

'A sergeant with the Air Police at the St. Albans Air Force Base, the 36-year-old native of Enosburg had his license suspended by the commission or motor vehicles in 1948, after he failed to file automobile liability insurance while he was overseas in the Army.

'State police said that Towle was convicted of careless and negligent driving, death resulting in St. Albans on May 19, 1941.

'Troopers said a vehicle operated by him was involved in a fatal crash at Bakersfield. A passenger in the car was killed.

'State police said he entered the armed service in 1943, and had his operators license reinstated in 1946.

'Two years later, troopers said Towle allowed his automobile liability insurance to lapse and his license was again suspended. Police said it has not been reinstated since.

'In court yesterday, the former deputy reported having a Virginia license which is good for 4 years, and expires in 1958. Further, he said his car was fully insured.

'Judge Gregg, meanwhile, said today court records show that as a deputy, the 36-year-old airman was the arresting officer in six motor vehicle cases prosecuted here during the months of May, June and July.

'As a deputy, Towle was given a permit by the commissioner of public safety to equip his car with a siren and red warning lights.

'His appointment as a deputy sheriff was made by Franklin County Sheriff John R. Finn, and was approved by the Attorney-General of Vermont.

'Finn said this morning his commission as deputy and his permit from the department of public safety were withdrawn when he was dropped from the patrol for misuse of authority and on order of the Office of Strategic Information, USAF, Ft. Ethan Allen, Vt.'

On Nov. 25, 1957, the plaintiff pleaded guilty to operating a motor vehicle while his right to do so was suspended. The defendant admits that its first news story, quoted above, was in error in stating that the plaintiff pleaded guilty to the charge of 'driving while intoxicated.' The court below properly charged that this first publication was a libel per se and that under that allegation the defendant was guilty of libel, and defendant took no exception to this part of the charge of the court below.

The defense to the second publication, quoted above, was its truth. The plaintiff, on direct examination, admitted the truth of the second publication except as to that part which stated he had been suspended from the sheriff's patrol for 'misuse of authority.' Upon this question evidence was presented by both parties.

Jury trial resulted in a verdict for the plaintiff with both compensatory and punitive damages awarded in the one verdict.

The first exceptions briefed by the defendant are to the exclusion of certain evidence by the trial court. It is the contention of the defendant that the sentence received by the plaintiff under the 1941 conviction of careless and negligent driving, death resulting, should have been received in evidence in the case, as well as a certified copy of the court record of the 1941 case, as evidence of the bad character of the plaintiff in the community in mitigation of damages.

It will be remembered that the plaintiff did not dispute the truth of the publication that he had been convicted in 1941. The conviction, in itself, was not disputed, therefore, was not in issue, having been admitted. No abuse of discretion is shown in the trial court's exclusion of the certified court record of a conviction already admitted.

The defendant may prove in mitigation of damages the general bad character of the plaintiff in respect to the offense imputed, but he may not prove any particular instances of misconduct unless they are so general that they have affected his general character. Bowen v. Hall, 20 Vt. 232, 241; 35 Am.Jur., Libel and Slander, pp. 205-206.

The matter of the conviction of the plaintiff in 1941 did not come into this case on mitigation of damages, for under the law just quoted it could not. It was in the case only on the issue of the defense of truth in the claimed libel. Just as the specific instance of misconduct was not admissible to mitigate damages in the case, there being no evidence that such instance had affected the general character of the plaintiff, so also, the evidence of any penalty received for such misconduct was equally inadmissible. No error is found in the exclusion of this evidence by the trial court.

In order to properly consider the next exceptions taken by the defendant it is necessary to consider some of the evidence in the case relating to the claimed damages suffered by the plaintiff. The plaintiff testified that he had conducted a television and radio repair business from his former home in Fairfax. He further testified that because of the publication in the St. Albans Messenger that he had been convicted of driving while intoxicated that he had lost customers of his business, and that because of the ridicule he suffered in Fairfax as a result of the above-mentioned publication he had been obliged to sell his home at a loss and move elsewhere.

Upon cross-examination the defendant questioned the plaintiff as to the effect upon his business of the 1941 conviction, as well as the effect of his conviction on the charge of driving a car while his license was suspended. It was the testimony of the plaintiff that the conviction of 1941, because of its remoteness in time, had no effect upon his business. He also stated that because of letters he had received from former customers, as well as telephone calls, he became informed that the loss of business was due to the publication of the drinking charge. He also testified, without objection, that in talking with these former customers they informed him that they believed the article in the newspaper, and that they had withdrawn their business from his because of his drinking.

The plaintiff offered in evidence a letter purporting to be from a Mr. Decker, one of his customers, which, in substance, stated that the customer was taking away his business from the plaintiff because of his conviction on the driving while drinking charge. Mr. Decker was not present as a witness in the case, nor was the letter authenticated in any way. It was received in evidence by the trial court over the objection by the defendant that it was hearsay, and that objection is briefed here.

The plaintiff contends that even if the letter was hearsay that it was admissible under an exception to the hearsay rule, in that it was admissible, not for the truth of the matters stated therein, but for the purpose of showing the reason for the action of the plaintiff. Yet his actions are not at issue here.

The plaintiff was seeking damages here because of the action of his customers in withdrawing their business. The question presented was the reason for this action of the former customers, and not for any action of the plaintiff himself. On this question the letter was hearsay and should have been excluded.

The plaintiff also, on cross-examination, admitted it was necessary to explain to his friends his conviction on the charge of driving while under suspension. On re-direct examination he testified that upon showing them a letter which he stated he had received from the Commissioner of Motor Vehicles ...

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  • Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc.
    • United States
    • Vermont Supreme Court
    • April 15, 1983
    ...ruling below, bearing in mind that the trial court was in the better position to determine the question." Towle v. St. Albans Publishing Co., 122 Vt. 134, 142, 165 A.2d 363, 368 (1960) (citing Lancour v. Herald & Globe Association, supra, 112 Vt. at 483, 28 A.2d at 403). In short, defendant......
  • Spreadbury v. Bitterroot Pub. Library
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    • U.S. District Court — District of Montana
    • March 6, 2012
    ...that a person was convicted of one crime, but the person was convicted of a different crime. See e.g. Towle v. St. Albans Publg. Corp., Inc., 122 Vt. 134, 165 A.2d 363, 368 (1960). Here, Lee Enterprises incorrectly reported that Spreadbury was convicted of disturbing the peace. The standard......
  • State v. Morse
    • United States
    • Vermont Supreme Court
    • July 25, 2014
    ...not testify at trial, and it was introduced to prove the truth of the car owner's claim for damages.2 See Towle v. St. Albans Publ'g Co., 122 Vt. 134, 139, 165 A.2d 363, 366 (1960) (holding that it was error to admit letter where author did not testify and contents were used to support dama......
  • Michlin v. Roberts
    • United States
    • Vermont Supreme Court
    • January 22, 1974
    ...the publication by the media of libels associated with public interest matters, 'libels per se' in the sense of Towle v. St. Albans Pub. Co., 122 Vt. 134, 165 A.2d 363 (1960). Furthermore, so-called general damages cannot, in such cases, be recovered in the absence of a showing of the malic......
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