Warner v. Fuller

• Decision Date: 05 June 1923
• Citation: Warner v. Fuller, 245 Mass. 520, 139 N.E. 811 (Mass. 1923)
• Parties: WARNER v. FULLER.
• Court: Supreme Judicial Court of Massachusetts

245 Mass. 520

139 N.E. 811

WARNER

v.FULLER.

Supreme Judicial Court of Massachusetts, Bristol.

June 5, 1923.

Exceptions and Report from Superior Court, Bristol County; Nelson P. Brown, Judge.

Action of tort by Joseph E. Warner against Alvan T. Fuller. Verdict directed for plaintiff for $1, and case reported to the Supreme Judicial Court upon a stipulation that, if it was error to direct a verdict, judgment should be entered for defendant; otherwise judgment for plaintiff on the verdict. Exceptions of defendant sustained and judgment entered for defendant in accordance with the terms of the report.John L. Hall, Day Kimball, and Archibald MacLeish, all of Boston, for plaintiff.

John W. Cummings, of Fall River, Joseph Wiggin, of Boston, and John B. Cummings, of Fall River, for defendant.

BRALEY, J.

The plaintiff a member of the bar and of the House of Representatives of the General Court of which he had been elected speaker, and the defendant, each of the same political party, were candidates for nomination for the office of lieutenant governor. During the campaign the defendant orally, and in writing, and in print publicly charged the plaintiff with being a partner in the practice of law with Harold F. Hathaway, Esq., under the name of Hathaway & Warner, and that while he held the office of speaker his partner with the plaintiff's knowledge and assent appeared before and was heard in behalf of clients, who were opposed to the enactment of certain proposed legislation which it was contended materially affected their business interests, by legislative committees appointed by the speaker, and that the money received for such services belonged to the partnership and was to be divided between its members. The declaration as amended contains one count for slander, and five counts for libel. While there are allegations that the defendant also had generally referred to the plaintiff as unfittedfor the office to which he aspired, the substance of the complaint in each count, when read with the specifications afterwards furnished by order of the court on the plaintiff's request, is the statements just referred to, that the plaintiff has used his office for private gain, which were repeated and published with immaterial variations as the contest grew more intense and embittered. The answer after a general denial averred, that the language was privileged, that it was true, and was published without malice. The case after a protracted trial was submitted to the jury on all the counts, who after prolonged deliberation having failed to agree, the judge gave the following instructions:

‘I now rule as requested by the defendant that the plaintiff has not proved any actionable slander or libel in any of the several counts of his declaration unless in the allegations that the defendant charged him specifically with dividing the fees received by Mr. Hathaway for appearing before legislative committees appointed by the plaintiff as speaker of the House of Representatives. As to that charge I now rule as requested by the plaintiff, that its obvious import was to impair the influence and effectiveness of the plaintiff as speaker and to disgrace him in that position, and to charge him with misconduct therein and therefore slanderous. I further rule, as I did yesterday, that there is no evidence, sufficient evidence to justify you in finding that the defendant had established the truth of this charge. I further rule that it is a libelous and slanderous statement of fact and not within the privilege of fair comment. The only other principle of law involved is the extent of any reasonable suspicion which the defendant may have had from the plaintiff's conduct that the charge was true. This principle of law is material only for the purpose of mitigating damages as the materiality of malice is eliminated by these rulings. I therefore direct you to return a verdict for the plaintiff for one dollar and reserve this case for report to the Supreme Judicial Court upon the stipulation upon the part of the plaintiff that if I have committed legal error in directing this verdict, a judgment shall be entered in that court for the defendant.’

The defendant excepted to the ruling, and the case is here on his exceptions as well as on the report of the judge, which are in accord on all material questions presented by the entire record and argued by counsel. The defendat, a witness at the trial having admitted, that he made the statements as alleged in all the counts, and having taken the position that not only were they privileged but were true, the judge correctly ruled that so much of the declaration as charged the plaintiff with misconduct and want of integrity in his official capacity was actionable defamation. Shattuck v. Allen, 4 Gray, 543, 544, 545;Loker v. Campbell, 163 Mass. 242, 39 N. E. 1038;Sillars v. Collier, 151 Mass. 50, 23 N. E. 723,6 L. R. A. 680;Twombly v. Monroe, 136 Mass. 464;Fay v. Harrington, 176 Mass. 270, 273, 57 N. E. 369;Craig v. Proctor, 229 Mass. 339, 118 N. E. 647;Wofford v. Meeks, 129 Ala. 349, 30 South. 625,55 L. R. A. 214, 87 Am. St. Rep. 66; Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189; Coffin v. Brown, 94 Md. 190, 50 Atl. 567,55 L. R. A. 732, 89 Am. St. Rep. 422;Bourreseau v. Detroit Evening Journal, 63 Mich. 425, 30 N. W. 376,6 Am. St. Rep. 320;Maynard v. Beardsley, 7 Wend. (N. Y.) 560, 22 Am. Dec. 595.

It is provided however in R. L. c. 173, § 91, now G. L. c. 231, § 92, that in an action of libel, the truth if established, is a justification unless actual malice is proved. Finnish Temperance Society v. Finnish Socialistic Publishing Co., 238 Mass. 345, 351, 352, 130 N. E. 845. And in an action for slander the truth if proved is also a justification. Clark v. Munsell, 6 Metc. 373;Golderman v. Stearns, 7 Gray, 181; True v. Plumley, 36 Me. 466. The defendant had asked for a directed verdict on each count which was refused, but the judge finally ruled that there was, ‘no evidence, sufficient evidence’ which would warrant the jury in finding that the defense of justification had been maintained. The usual rules governing the admissibility of evidence permitted the introduction of all the facts and circumstances bearing on the charges which tended to establish their truth. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1,13 L. R. A. 97. A review of the material evidence to the admission of which no exceptions appear to have been taken by either party is therefore necessary. Harding v. Brooks, 5 Pick. 244, 248;Stone v. Crocker, 24 Pick. 81;Gunnison v. Langley, 3 Allen, 337;A. J. Tower Co. v. Southern Pacific Co., 184 Mass. 472, 476, 69 N. E. 348. The plaintiff testifiying in his own behalf explicitly denied that he had ever been in partnership with Hathaway. But on the evidence introduced by the defendant, and the evidence of the plaintiff elicited in direct and cross-examination, the jury would have been warranted in finding these facts. The plaintiff after his admission to the bar in 1909 went into the office of Hathaway, and with his knowledge a sign was hung on the outside of the building which read ‘Hathaway & Warner, Attorneys at Law,’ where it remained for many years. In his address to his college class in 1916 the decennial year of their graduation he stated that he had been associated with him in the general practice of law from the time of his admission to the date of the address, and that Hathaway was still his associate. The plaintiff further testified:

‘That in the years 1910 and 1911 he received as compensation five dollars a week and in 1912 ten dollars a week; that since then he had not received any money from Hathaway except two months wages in 1913; that in 1912, 1913 and 1914 he did considerable work; attended the district court where he probably did all the trial work and tried some cases in the superior court, and set in with Mr. Hathaway in the trial of those cases; made investigations and prepared the law for him.’ But in 1915 ‘he did less and from that time on very little, if anything.’

It also appeared from his evidence that he indorsed the name of Hathaway & Warner on writs issued from the office, and on appearances for defendants, and although he had been practicing law during eleven years when the defendant made the charges in 1920, he kept no docket of his own or record of any cases in which he was engaged, nor any cash or check book showing moneys received from clients or collected for, and paid to them, and that during the entire period he had no recollection of even having collected any money for clients. It could be found even if denied by the plaintiff, that in a suit brought by Hathaway he appeared as counsel, and a settlement having been effected directed that the check should be made payable to Hathaway & Warner, and when paid it was indorsed Hathaway & Warner, and the agreement for judgment was signed ‘Joseph E. Warner, Attorney for the Plaintiff.’ The conversation in July, 1920, with a witness, a lawyer, who said to the plaintiff, ‘I know your partner Mr. Hathaway. I had a law case, a will case, with your firm,’ and the plaintiff having asked for the name of the case said that he did not recall it; ‘that he had not kept in close touch with cases in the office as he wished he might have, owing to his duties at the state house,’ as well as the evidence of a witness who went to the office to consult the plaintiff and after some preliminary talk said to him, ‘Mr. Warner, if you are not going to be her attorney and Mr. Hathaway is going to be her attorney, it is not safe to trust my story to you as you being a partner of Hathaway's,’ to which the plaintiff replied, ‘No, that is right,’ were to be considered in connection with the sign, the plaintiff's statements in his address, and his professional use of the name of Hathaway & Warner.

[6] The credibility of the witnesses and the natural inferences to be deduced from their testimony were matters of fact,...