Whitcomb v. Hearst Corp.

• Decision Date: 07 July 1952
• Citation: 107 N.E.2d 295,329 Mass. 193
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WHITCOMB v. HEARST CORP. and three other cases.

Page 295

107 N.E.2d 295

329 Mass. 193

WHITCOMB v. HEARST CORP. and three other cases.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1952.

Decided July 7, 1952.

B. Aldrich, Boston, F. P. Garland, Boston, for defendant Boston Herald Traveler Corp., et al.

F. T. Leahy, Boston, for defendant Globe Newspaper Co.

J. J. Burns, Boston, G. May, Boston, for defendant Hearst Corp.

E. O. Proctor, Boston, G. C. Abernathy, Jr., Boston, for plaintiff.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

QUA, Chief Justice.

These are four actions for libel, all brought by the same plaintiff against the publishers of five Boston newspapers commonly known as the Advertiser, the Post, the Globe, the Traveler, and the Herald. The last two papers just named are both published by the same defendant, Boston Herald-Traveler Corporation. For convenience we shall hereinafter generally refer to the several defendants by the names of the newspapers respectively published by them.

The actions were tried together to a jury and resulted in verdicts for the plaintiff against the Advertiser for $20,000, against the Post for $10,000, against the Globe for $20,000, against the Traveler for $10,000 on the first count in the declaration against Boston Herald-Traveler Corporation, and against the Herald for $5,000 on the second count in the declaration against Boston Herald-Traveler Corporation, making the total amount of all the verdicts $65,000. All of the defendants alleged exceptions.

The plaintiff testified to some of the events of his life and to his past activities. The jury could find the following facts bearing upon his reputation and standing in the community: At the time of the trial he was fifty-six years of age. He graduated from college in 1915 and thereafter was physical director for two years in the Y. M. C. A. in Honolulu. While there he enlisted in the national guard in the infantry and rose to the rank of sergeant. In 1917 and 1918 he was second and first lieutenant of infantry, largely in Hawaii. He married in 1917. After the armistice he was recommissioned in the reserve. After the war he was in the steamship business in Panama until 1923 and then, following a number of months in New York, he returned to Kansas, where he had been born, and went to work for the Southwestern Telephone Company. In 1927 he was transferred to the American Telephone and Telegraph Company in New York City, where he worked until 1929. He took the usual tours of duty in the reserve of the army and was promoted to the rank of major. From 1929 until 1933 he lived in Winchester and was general sales manager of the northern area of the New England Telephone and Telegraph Company. In 1931 he organized the Boston unemployment relief campaign, predecessor of the community fund, which reached its goal of $3,000,000. He also took part in the campaign of 1933 and acted as adviser in the campaigns of 1934 and 1935. In 1933 he became division manager of the western division of the New England Telephone and Telegraph Company. This 'was Massachusetts from the Concord line west and Vermont.' In 1938 he was appointed by Mayor Tobin chairman of the municipal survey for the city of Boston, and in connection therewith he gave many talks and lectures. This survey was 'credited' with saving the city $1,000,000. He also talked before civic groups to arouse interest in the national defense act all over Massachusetts and up into the three northern States. In these activities he met a great many people, particularly in the community canvass. He also 'acted for' the National Economic League and the Boston Council of Boy Scouts. In 1938 he was an unsuccessful candidate for the Republican nomination for Governor. In January, 1941, while living in Springfield, he again went on active military duty and was assigned to be chief of operations for water transport. He has had no permanent home since 1942. In June, 1941, he was sent by the general staff on a special mission to Iceland, where he arranged for the landing of troops, and where he remained as commander of the port of Reykjavik until 1943. Someone has 'figured out' that he was 'the first officer of the American Overseas Force to set foot on foreign soil in World War II.' In 1943 he became a colonel. He next went to London as director of operations of 'the 11th Major Port, the British Channel Ports, and was subsequently put in command.' In 1944 he was 'given the mission of operating the right sector of Omaha Beach.' He 'landed on the French Coast on D-day plus 2.' He subsequently operated some additional ports which were still under shell fire and until June, 1945, operated Rouen, 'the largest port in France.' His headquarters were then 'redeployed to the Pacific.' He was sent to Manila 'to try to straighten out the port which was congested with four hundred ships.' In January, 1946, he returned to the United States and finished his active duty. At some of the ports above mentioned he commanded from about 8,000 to 12,000 troops and many thousands of civilian employees and prisoners. For his services he received several American and two French decorations. Upon returning to civil life, he has acted as 'Management Official particularly in connection with the production of a medicine he was interested in.' The 'business was the Chalyon Corporation, a Massachusetts corporation operating principally in New York * * *.' He has been living at a hotel in Brooklyn. His two daughters are married, one living in Vermont and one in Michigan. Since World War II he has been on 'a great many periods' of active military service. He was last called into such service in September, 1950. Since 1948 he has held the rank of brigadier-general in the reserve corps. At the time of the trial he was 'on extended active duty.'

The Libellous articles all stated in somewhat different forms that 'Lt. Col.' Richard S. Whitcomb ¹ had been found guilty by a military court of removing valuable articles from a private house in Garmisch, Germany, and had been sentenced to two years hard labor and dismissed from the service. The first public cation was in the Traveler on Saturday, March 4, 1950, and the publications in the other papers were in the Sunday editions of March 5. Each article contained, or was accompanied by, biographical material descriptive of the plaintiff which, although not always accurate in every respect, could clearly be found to refer to the plaintiff and to identify the plaintiff as in fact the person intended by the writer. The question which divided the court in Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N.E. 462, 20 L.R.A. 856, does not arise here. Ellis v. Brockton Publishing Co., 198 Mass. 538, 541, 84 N.E. 1018; Hubbard v. Allyn, 200 Mass. 166, 171-172, 86 N.E. 356; Sweet v. Post Publishing Co., 215 Mass. 450, 453, 102 N.E. 660, 47 L.R.A.,N.S., 240. The articles were unquestionably defamatory in character. No contention to the contrary is made. And the articles were not true, since the officer found guilty and sentenced in Germany was not the plaintiff, Richard S. Whitcomb, but was one Richard F. Whitcomb as to whom such parts of the articles as referred to conviction and sentence would have been true. The plaintiff had never been in Germany at any time.

The origin of the mistake appears from a pre-trial agreement which was read to the jury. On the morning of Saturday, March 4, 'The Stars and Stripes,' European Edition, the 'Unofficial Publication of U.S. Occupation Forces in Europe,' carried the story, using the name 'Richard S. Whitcomb.' The reporter for that paper had received his information over the telephone from the 'Army Public Information Officer' in Augsburg, where the court martial had been held. The officer there used the correct middle initial 'F,' but due to a poor connection the reporter understood him to say 'S.' The reporter checked the name in the Municipal military post telephone book 'issued by the U. S. Army Signal Corps,' which also erroneously gave the middle initial as 'S.' One Devlin, Associated Press correspondent at Munich, read the article in 'The Stars and Stripes' and telephoned 'the Army's Public Information Office headquarters' at Heidelberg and asked some questions as to Whitcomb's home town, how he had pleaded, and why he was tried at Augsburg. He was told that Whitcomb was a resident of Worcester, which may have been true of Richard F. Whitcomb, but not of the plaintiff. Devlin thereafter talked with the 'Munich post of the Army Public Information Office' along the same lines. In neither conversation was it brought to Devlin's attention that the proper middle initial was 'F' instead of 'S.' Nor does it appear that in either conversation he was misinformed about the middle initial. Thereafter Devlin sent the story out on the wire service of the Associated Press, with the initial 'S,' and the Boston papers received it. It appears from the record that the biographical matter definitely fixing the plaintiff as the person intended was added by the Boston papers themselves. It was agreed that the plaintiff did not claim actual malice, and no special damage was claimed.

Within a few days after the original publications all the papers conspicuously published full and complete retractions, acknowledging the mistake and wholly exonerating the plaintiff. The plaintiff makes no contention that any of these retractions was unsatisfactory.

The plaintiff further testified that when he read the defamatory articles 'he simply felt that everything he had put his entire life into doing, his 34 years in the military service, and everything he had done had been taken away from him at one moment; that everybody that knew him there at the time would brand him as a man who had been false to his oath and dismissed from the military service of the United States * * *'; that he was broken hearted; and that his damages were 'total and complete' and 'not...