EDWARD M. JOYCE vs. GLOBE NEWSPAPER COMPANY.

WHITTEMORE, J. This is an action of tort for libel. The publication on or about November 26, 1963, of the news item set out in the margin [Note 1] was admitted. The first

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count alleged that the publication was false and malicious with intent to injure. The second count alleged that the defendant (Globe) intended "to impute . . . that the plaintiff was committed by judicial process to the Medfield State Hospital; . . . that the plaintiff was judicially removed from his home; that the plaintiff was insane and mentally deranged; that the plaintiff acted improperly at the trial . . .." The third count alleged that the publication was with the intention of injuring the plaintiff in his business. The defendant before answer published a retraction. [Note 2] The answer, inter alia, averred truth and privilege and set up the retraction. The plaintiff excepted to the action of the judge in directing a verdict at the close of the evidence.

The plaintiff's primary contention is that, in accordance with the allegation of the second count, by the use of the word "committed" the defendant in effect stated that there had been a court proceeding in which a judge had made an adjudication and that this was false. We disagree. The evidence showed that the plaintiff had been admitted to the hospital against his will pursuant to a request to its superintendent from Dr. MacPhee under G. L. c. 123, Section 79, and on a form for use under that section which, incorporating the words of the statute, recited that the plaintiff "in my opinion is in need of immediate care and treatment because of mental derangement other than drunkenness." In Joyce v. George W. Prescott Publishing Co. 348 Mass. 790, this court held that the word "commitment" as used in another newspaper article about the same

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involuntary confinement implied no more than "placing in the hospital pursuant to proceedings provided by law." However, as the plaintiff contends that that holding is wrong and contrary to Mezullo v. Maletz, 331 Mass. 233, 234, cited in the Prescott case, we have again carefully considered the meaning of the words "commitment" and "committed" and their implications.

Our conclusion is that the Prescott holding was directly indicated in prior decisions, and in general usage, and was fully consistent with the Mezullo case. In that case the word "committed" as used in a declaration was construed on demurrer. The court noted that Sections 51 and 77 of c. 123 relate to "commitment" and are so entitled in contrast to Sections 78 and 79 which do not use the word. Both Sections 51 and 77 specify an order by a judge. The court said: "With these statutes as a background to the allegations in the declaration we are of opinion that the plaintiff was referring to a commitment of the sort mentioned in Sections 51 or 77, or both, and that a judicial proceeding with an order of commitment preceded the plaintiff's confinement in the State Hospital" (emphasis supplied). It of course does not follow from this determination of the import of the word in a particular formal declaration, construed in the light of statutes known to the pleader and the court, that mankind in general would so understand the word in different context.

The court in the language of the Mezullo case just quoted impliedly recognized that commitment may be of a sort other than commitment by order of a judge under Section 51 or Section 77. This recognition was express in Karjavainen v. Buswell, 289 Mass. 419, 426, 428. At p. 426, in referring to confinement under Section 79, the court said: "Section 79 provides with particularity how such commitment shall be made" (emphasis supplied). This sentence, as a part of a long quotation from the Karjavainen case, was quoted by the court in 1962 in Belger v. Arnot, 344 Mass. 679, 684-685. We see nothing in the holding of that case, cited by the plaintiff, that suggests a contrary construction. The

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action was in tort for assault and negligent diagnosis and treatment. The holding of that case was that the evidence warranted a finding that the plaintiff was in need of immediate care and treatment for mental derangement and that the defendant, in acting under Section 79, acted in good faith and without negligence and that his action was privileged. Other illustrations of the use of the word commitment to describe proceedings under Section 79 are noted in the Prescott opinion, supra ( 348 Mass. 790). One of the dictionary definitions of "commitment" is "confinement to a mental institution or hospital." The use of the word in a newspaper account plainly says that someone had exercised or purported to exercise power given by law to restrain the liberty of another. It does not, without more, say that the exercise of that power was by a judge.

The plaintiff's brief appears, by implication at least, to recognize that the "common everyday use of the word `commitment'" is relevant. This is in the course of his argument that the word is inapplicable to refer to acts by the physician in connection with entirely unjustified police conduct. [Note 3] This contention cannot prevail in the circumstance that the case against the physician was based on his exercise of the power given him by Section 79, thus making possible the involuntary transportation of the plaintiff to the hospital by the police and his subsequent confinement there.

There is nothing in the Globe account to suggest that a judge had acted to bring about the involuntary confinement of the plaintiff. On the contrary it accurately reflected the evidence that it was the physician and not a judge who had acted. The purport of the article was that the physician had been found liable and the plaintiff vindicated because the former had acted wrongly. It reported that the physician had acted after "adjudging . . . [the plaintiff] `mentally

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deranged.'" It stated that it was the physician who "had had him [the plaintiff] committed" and had "confined him involuntarily."

The bill of exceptions shows that the truth of the material statements of the article had been established without contrary evidence. The bill states that the plaintiff testified in the present action that the physician [at the 1963 trial of the action against the physician] "did not state that [the] plaintiff was belligerent." This must be read with excerpts from the transcript of the testimony at the 1963 trial which were in evidence. They show that the plaintiff in cross-examination of the physician had brought out that on March 5, 1962, the physician, in stating what he had observed at the police station on November 11, 1961, had written: "He [the plaintiff] was agitated and belligerent." Also the physician had testified that what he observed was an "agitated . . . violently disturbed mental state." We assume the plaintiff in the first statement above referred to was making a distinction between what the physician at the trial stated he had written on March 5, 1962, and the words he used at the trial to characterize what he saw. However that may be, the jury could not have found that the article was materially inaccurate in reporting that the physician had stated that "he observed Joyce who was belligerent." [Note 4]

Proffered testimony as to the plaintiff's recollection of other testimony at the 1963 trial was excluded subject to his exception. The offer of proof shows that most of the offer was immaterial and as to all of it there was no prejudice and the ruling was within sound discretion. That the plaintiff had testified in detail as to how he had been wrongly seized and confined by the police in the station and in the hospital was confirmatory of the essence of the news item. What the plaintiff recalled that the physician had said at the trial

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would have neither shown nor suggested material falsity in the Globe's report. [Note 5]

The plaintiff suggests that the retraction in effect admitted the misleading use of "commitment." We disagree. The retraction accurately stated that "[i]nvoluntary admission upon the request of a doctor is a statutory procedure which differs from formal judicial commitment." The retraction was "to the extent that . . . readers inferred . . . that Mr. Joyce had been judicially committed." It stated that "The Globe did not intend to state that Mr. Joyce had been judicially committed."

That a demurrer had been overruled did not bar the action of the trial judge in directing a verdict at the close of the evidence. The article was accurate and, in giving notice that the plaintiff had prevailed in his contention that what was done was wrong, it was a fair report. It was privileged, therefore, as a report of judicial proceedings in the absence of a showing of actual malice. Kimball v. Post Publishing Co. 199 Mass. 248, 249-250. Thompson v. Globe Newspaper Co. 279 Mass. 176, 189-192. Perry v. E. Anthony & Sons, Inc. 353 Mass. 112, 114. Compare Whitcomb v. Hearst Corp. 329 Mass. 193, 199-200. Whether the occasion was privileged was matter of law to be determined by the judge. Sheehan v. Tobin, 326 Mass. 185, 194 (there were other issues taking case to the jury). See, as to other privileged occasions, Time Inc. v. Hill, 385 U.S. 374, 387-391 (action for invasion of privacy under New York civil rights law); Curtis Publishing Co. v. Butts, 388 U.S. 130, 154-155 (applying the rule of New York Times Co. v. Sullivan [376 U.S. 254, 279-280] to "public figures").

The publication of this news item did not tend to show actual malice or intent to injure. No evidence whatever permitted such a conclusion.

As the cases show, malice, accuracy, and fair reporting

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are questions of fact for the jury if there is a basis for divergent views. The plaintiff suggests that unfairness could be found in the circumstance that the article gave further publicity to the events mentioned. That overlooks that this was a report of judicial proceedings. No basis was shown for concluding a deviation from usual policy in reporting such proceedings. [Note 6] The privilege of accurate and fair reporting of such public events as a jury verdict in a case duly tried is not to be weakened or in effect destroyed by submitting a resulting libel action to the jury on other insubstantial issues. See the Kimball case, supra (199 Mass. at 251). See also the Perry case, supra, and the Prescott case, supra (not a report of court proceedings but of a complaint instituting court proceedings filed by the plaintiff himself and ruled to be accurate). Compare Lundin v. Post Publishing Co. 217 Mass. 213, 216-217.

Here was a fair and accurate report that told persons who may have heard of what had happened in 1961 that Mr. Joyce had established his vindication. There was no substantial jury issue.

Exceptions overruled.