Twohig v. Boston Herald-Traveler Corp.

195 N.E.2d 320, 346 Mass. 654, 1964 Mass. LEXIS 853

• Court: Massachusetts Supreme Judicial Court
• Decided: January 10, 1964
• Status: Published

Opinions

Kirk, J.

The plaintiff appeals from orders sustaining the demurrers of the defendants to the plaintiff’s declaration in tort for libel. The demurrers are identical and rest on the ground that no cause of action is stated. We treat them as one.

The declaration alleges that the defendant corporation on September 13, 1962, published in The Boston Herald an article written by one of the individual defendants. In the article was the following statement: “The Senate president has reversed the anti-union charge Twohig is spreading about him by resurrecting some of Twohig’s votes against Labor when he served on Beacon Hill.”

The defendants argue only that the words are not libel-lous and that the innuendos are not warranted.²

The well settled law was concisely restated recently in Anthony v. Barss, ante, 401, 402, citing cases. “A demurrer cannot be sustained unless the words are incapable of any defamatory meaning. . . . The test is whether, in the circumstances, the writing discredits the plaintiff in the minds of any considerable and respectable class of the community.”

The words quoted in the declaration cannot be said to be incapable of being understood as an assertion of fact that the plaintiff, when he was a member of the General Court, had cast votes against labor; and, moreover, had cast more votes against labor than his political opponent (the Senate president) had yet revealed. This permissible interpretation would, in our judgment, tend to discredit the plaintiff in the minds of workers in general and of members of labor unions in particular who constitute a considerable and respectable class in the community.

The bare circumstance, as appears from the declaration, that the publication took place during a political campaign does not, as argued, avail these individual defendants who were not candidates, but, rather, tends to aggravate the injury to the plaintiff who was a candidate. In Adams v. Clapp, ante, 245, 248-249, where the individual defendants were holders of or candidates for elective office, the declaration disclosed numerous additional circumstances which were discussed in the opinion at pages 248-249 and distinguish it from the case before us. Nor can the statement in issue be regarded as a customary type of hortatory appeal comm only made to voters at election time by avowedly partisan advertising or advocacy. See Aldrich v. Boyle, 328 Mass. 30, 31, 32. Whether the assertion in the statement was true, or was fair comment upon a matter of public interest and therefore privileged, is a matter of defence not open on demurrer. G. L. c. 231, § 92. Muchnick v. Post Publishing Co. 332 Mass. 304, 308, and cases cited.

Orders sustaining demurrers reversed.

2 The declaration has certain formal defects which are readily amendable. These are not mentioned or argued by the defendants as grounds of demurrer and we do not consider them.