Home EDWARD M. JOYCE vs. GEORGE W. PRESCOTT PUBLISHING COMPANY.

348 Mass. 790

February 25, 1965

Judgment for the defendant. In this action for libel the defendant's motion for a directed verdict should have been allowed. The newspaper story of the plaintiff's Federal court action was accurate in all material details. In reporting that "Attorney Joyce charges . . . that his constitutional rights were violated when he was committed to the hospital last November" the defendant appropriately used the word "committed" to describe what had happened. It is uncontroverted that the plaintiff was admitted to the Medfield State Hospital on a ten day "temporary care" certificate under G. L. c. 123, Section 79, being "in need of immediate care and treatment because of mental derangement other than drunkenness," a physician having made the request as the statute provides. This court refers to proceedings under Section 79 as "commitment." Karjavainen v. Buswell, 289 Mass. 419 , 426. So does the Court of Appeals for the First Circuit in a case by this plaintiff based on the same occurrence. Joyce v. Ferrazzi, 323 F. 2d 931, 932, 933. So, semble, do those directly concerned. The receiving officer at the hospital indorsed the admitting form, "Accompanied by . . . committing officer." Strictly, and as used in c. 123, "commitment" means a placing in the hospital by judicial order as distinguished from Section 79 proceedings. Mezullo v. Maletz, 331 Mass. 233 , 234. But the words are to be read in their "natural sense with the meaning which they would convey to mankind in general." Lyman v. New England Newspaper Publishing Co. 286 Mass. 258 , 260. This meaning of the word "commitment" was placing in the hospital pursuant to proceedings provided by law. In so stating as to the plaintiff and what the plaintiff charged in the Federal court the defendant reported correctly. The record is bare of any suggestion that the true account was published with actual malice, that is, intent to injure.

Exceptions sustained.

Home SALVATORE PAUTA & another vs. N. PANDELENA & SON, INC.

348 Mass. 790

February 25, 1965

This action of contract or tort was referred to an auditor whose findings of fact were to be final. The declaration contained two counts. In the first count (in contract) it was alleged that the plaintiffs had engaged the defendant to deliver and place fill on their premises and that the defendant unskillfully and carelessly delivered and placed the fill, causing a retaining wall to break; in the second count (in tort) it was alleged that the wall was caused to collapse because of the negligent and careless manner in which the defendant placed the fill. After the auditor's report was filed, a motion for judgment in their favor was presented by the plaintiffs; the defendant likewise

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presented a motion that judgment be entered for it. The plaintiffs' motion was denied as to count 1 and granted as to count 2, and judgment was ordered for the plaintiffs in the sum of $2,500; the defendant's motion was denied. The defendant appealed. There was no error. The findings of the auditor "are final and conclusive unless tainted in some material particular by error of law." Lunn & Sweet Co. v. Wolfman, 268 Mass. 345 , 349. We are of opinion that the subsidiary facts found by the auditor support his ultimate conclusions that the collapse of the wall was caused by the defendant's lack of skill and care in placing the fill, and that there was no contributory negligence on the part of the plaintiffs. The action of the judge in ordering judgment for the plaintiffs on the second count and in ordering judgment for the defendant on the first count was not, as the defendant contends, inconsistent.

Orders for judgment affirmed.