Kelly v. Loew's Inc.

This is an action of libel brought by a commander of the United States Navy against the producer of the motion picture, They Were Expendable. The parties have waived a jury trial. The complaint refers first to the publication of the script of the cinema, and second to its exhibition at two Boston theatres, Loew’s Orpheum and Loew’s State, neither of which is owned by defendant. The gist of the three counts is that the portrayal of plaintiff, thinly disguised as the motion picture character, “Rusty Ryan,” held him up to ridicule because it showed him engaging in conduct unbecoming an officer and gentleman. Particularly the script and the cinema are said to have shown him, in relation to naval officers and men, as headstrong, undisciplined, aggressive, resistant to orders and self-seeking, and in relation to a United States Army nurse, as unduly amorous. These portrayals are claimed to have damaged him by affecting his professional reputation and thus causing him embarrassment and mental discomfort.

Defendant’s answer raises among other points that (1) the script was never published to any one, (2) defendant is not responsible for the showing of the motion picture in the Boston theatres; (3) there is no evidence that any one who saw the picture in Bostón did identify Rusty Ryan with plaintiff; (4) neither the script nor the picture holds plaintiff up to ridicule in the eyes of any respectable part of the general public or even of the narrow circle of his own profession; and (5) plaintiff has given defendant a license to portray him as he was shown in the script and in the movie.

Plaintiff was born in New York City, and later lived in suburbs of New York and in Connecticut. He is admitted to be a citizen of one of the states of the United States other than Delaware, in which defendant is incorporated. From Connecticut he was appointed to the United States Naval Academy at Annapolis. He graduated from the Academy in 1935. In December 1941, having attained the rank of lieutenant in the United States Navy, he was stationed at the United States Naval Base at Cavite in the Philippines. At the time he was unmarried. He was the executive officer to Lieutenant Bulkeley commanding Motor Torpedo Boat Squadron Three, popularly referred to as PT boats. The relationship between plaintiff and Bulk-eley was respectful and cordial but not intimate — first names never being used between them. PT boats of the type they commanded had by 1941 been used in active warfare by the British, Italian and other foreign navies, but our Navy had no occasion to use them in actual combat prior to the day of Pearl Harbor. There is, however, no reason for finding that in 1941 the United States Navy was skeptical about the usefulness of PT boats or that the persons, including plaintiff, who were assigned to duty aboard such ships regarded or had any occasion to regard the assignment either as unworthy of an able man or likely to limit his opportunities to serve his country or participate in engagements that tested a man’s mettle, proficiency and courage.

In the weeks immediately preceding the attack on Pearl Harbor the PT boats in the Philippines, having received indirectly from the Commander-In-Chief warnings that war was imminent, were constantly on patrol. The night before the attack, after having performed his duties, plaintiff went to the Army and Navy Club for a hearty steak dinner, topped off with brandy and a cigar. Then he retired to his bachelor quarters to sleep. Between 2:30 and 4:30 a. m. he was awakened by news of the Japanese raid on Hawaii. Immediately he reported to duty *476 and in the next few days was under fire from Japanese planes which attacked the Philippines. In these engagements he was not wounded. However, before hostilities had been declared his finger had swollen from the bite of a tropical insect, and after the war was under way plaintiff snagged his finger on some metal, probably on the ladder of one of the boats. (R. 91). He first showed his finger to his bowling companion who was a doctor. Then his commanding officer learned of the injury. After Pearl Harbor day, plaintiff was ordered by Lt. Bulkeley to the Army hospital at Corregidor (R. 102) where he was kept as a patient for about a month and to which during a second and a third month he was required to report as an out-patient two or three times a week. (R. 107, 108).

At the Army hospital there was an Army nurse, holding the rank of second lieutenant, named Peggy. She was one of about 14 nurses assigned to Corregidor where there were approximately eleven thousand men. She was a girl in her twenties of moderate girth and height who wore glasses and who while perhaps not accurately described as “cute” was undeniably attractive to the men at Corregidor.

When plaintiff entered the hospital he fell under the care of Peggy, whose authority or rank he never challenged. From time to time thereafter she ministered to his medical needs. Plaintiff and Peggy became friendly but there is no evidence that there was any romantic attachment or any amorous intimacy. They never ate together except in the hospital. (R. 108). On occasions after plaintiff’s discharge from the hospital they went for walks together. And after plaintiff left Cavite, Peggy wrote some letters to him and possibly he wrote to her; but the letters were not in evidence or demanded for production.

After plaintiff was discharged from the hospital he participated in naval engagements of historic importance. The squadron of which Lt. Bulkeley was commander and plaintiff executive officer was assigned tasks of major significance, and never was limited to messenger duty or like routine tasks. In view of the small size of the boats and the limited availability of torpedoes, fuel oil and like- supplies, the PT boats performed incredible feats of warfare.

In March 1942, the PT boats were given a mission that became world famous. Lt. Bulkeley, plaintiff and others carried from Cavite to Mindanao General MacArthur, his wife, their son, Admiral Rockwell and other high military and naval personnel. Plaintiff commanded the PT boat which transported Admiral Rockwell. The skill and bravery with which this mission was performed earned each of the PT officers and men the Silver Star.

After arriving at Mindanao the Motor Torpedo Boats continued their superb work of slowing and diminishing the effectiveness of the Japanese advance. It is possible that one of the exploits of Lt. Kelly’s boat was the sinking of a Japanese cruiser of the Kuma class. Eyewitnesses ashore believed they saw the cruiser sink, but later reports of nava-l engagements involving the particular cruiser thought to have been sunk cast some doubt upon the reports of the eyewitnesses. Whatever may be the truth with respect to this particular incident, there is no room for controversy regarding the over-all naval success of the squadron, the danger which the officers and men faced, the casualties they bore and the heroism with which they responded in the nation’s most critical hour.

Plaintiff could well testify — though unlike Aeneas he would never volunteer the statement — “Quaeque ipse misérrima vidi, Et quorum para magna fui.” (II Aeneid S). Indeed if one were to select for special notice any particular .event in the history of the squadron, the selection made by defendant’s attorney could hardly be bettered. Returning from a battle plaintiff’s boat became fouled with some coral heads. It was attacked by four Japanese seaplanes (R. 21). The planes killed or injured all except plaintiff and three other members of the crew (R. 22). Plaintiff helped ashore his wounded companions, but the Japanese planes continued strafing the survivors. Acting with incredible presence of mind, dispatch and gallantry plaintiff beached his boat and saved some of his wounded companions (R. 22). Those who *477 had been lost in the battle were buried in an Anglo-American cemetery after a funeral service performed by a priest but unattended by plaintiff who had other duties to fulfill.

In the spring of 1942 the United States Navy, desiring that its officers and men in the United States should have training in the use of motor torpedo boats by officers familiar with their value in active combat, ordered Lt. Bulkeley, plaintiff and others to the naval training station at Melville, Rhode Island. (R. 79). The transportation from Mindanao was by airplane, and there was no time at which plaintiff offered or thought of offering to disregard his orders and surrender to another the airplane seat which he had been directed to occupy. On arrival in the United States and before reporting to Rhode Island, plaintiff was given a ten-day leave. He went to the home of his mother, who had moved to New York City from Connecticut. After three or four days, the Office of Public Relations of the United States Department of the Navy discovered that plaintiff was in New York City. Despite his own reluctance and because persons holding superior rank in the Navy made it clear that plaintiff should cooperate, plaintiff participated in a parade and two banquets in New York City intended not only as a testimonial of honor to the heroes of the PT boats but also as part of a promotional campaign to sell United States Savings Bonds. (R. 80, 82). This type of display was so out of character with plaintiff’s natural disposition that he voluntarily terminated his own leave several days ahead of time and reported for duty at the naval training station in Rhode Island. (R. 26).

Hardly had he reached there when plaintiff was requested by an official of the United States Navy to allow himself to be interviewed by William L. White — a reputable and widely known reporter then on the staff of the periodical, Reader’s Digest. (Ex. 1, R. 27, 86). Plaintiff understood that he and his fellow survivors of the PT boats were to tell their stories so that Mr. White could write a factual account for the magazine. For three and one-half days for six or seven hours a day Mr. White asked plaintiff questions. (R. 28). And at the end Mr. White left the station without showing his manuscript or even his notes to plaintiff. (R. 162).

In September or October 1942 plaintiff received an advance copy of a book called They Were Expendable written by William L. White and published by Har-court, Brace & Co. (R. 88). The book begins with a foreword stating that the author was told the story “largely in the officers’ quarters of the Motor Torpedo Boat Station at Melville, Rhode Island, by four young officers”; “because the navy was then keeping him [Lt. Bulkeley] so busy fulfilling his obligations as a national hero, Bulkeley had to delegate to Lieutenant Robert Bolling Kelly a major part of the task of rounding out the narrative. I think the reader will agree that the choice was wise, for Lieutenant Kelly, in addition to being a brave and competent naval officer, has a sense of narrative and a keen eye for significant detail, two attributes which may never help him in battle but which were of great value to this book.” And at the end of the book there is a three page table of the real names of the “officers and enlisted personnel attached to motor torpedo boat squadron three”. Thus the book purports to be and in fact is a substantially accurate report of “historical events” — as that phrase is used in the letter of December 2%, 1942 (Ex. 4) to which reference is made later in this opinion. However, there is in the book some mild profanity which I attribute not to plaintiff but to Mr. White’s sense of fitness.

The White book describes with historical fidelity the way news of the Pearl Harbor disaster reached Cavite; the early activities of PT boats; the hospitalization of plaintiff rendering him unable to participate in certain early encounters; plaintiff’s role in a Subic Bay enterprise in which Lt. Bul-keley sank a 10,000 ton tanker; the transportation of General MacArthur’s party; General MacArthur’s promise to get Lt. Bulkeley and other key men out of the Philippines; Lt. Bulkele/s later transportation of President Quezon; the repair of plaintiff’s boat; the episode of the possible sinking of a Japanese cruiser of the Kuma class by torpedoes from plaintiff’s boat; the beaching and destruction of the boat at *478 Kawit Island; plaintiff’s gallantry in saving his men and crew; the report of the burial mass conducted by a priest after plaintiff had departed; plaintiff’s hope that General MacArthur would fulfil his promise to get him out of the Philippines; and the final flight from the - Philippine airport to Australia.

Two aspects of the White account require special attention — the author’s portrayal of plaintiff’s relations to Peggy and of plaintiff’s character as an officer.

Mr. White shows the lieutenant and nurse as friendly in a perfectly proper way, and yet with an affectionate concern for one another. Lt. Kelly’s first impression of Peggy was that she had “a cute way of telling you very firmly what you had to do”, (p. 29). They became companions and they had dates, went together to a party or two and at least once sat at the mouth of Cor-regidor’s tunnel where “every five minutes an army truck would barge tactlessly around the curve”, (p. 61). Before he left with the MacArthur party she called him over the signal-corps phone and though he could-n’t tell her his mission, he said “I guess it’s good-bye, Peggy”, (p. 117). Often after they separated his mind went back to her, her plight at Bataan and memories of her gifts of food and drugs for an emergency. As he «boarded the airplane to go to Australia he “remembered the last thing she said to me — her voice was just as clear as if it had been two seconds ago, instead of many weeks, over that signal-corps telephone in the army hut on Bataan after I had told her this was good-bye. ‘Well,’ she said, ‘it’s been awfully nice, hasn’t it’ ”. (p. 205).

Mr. White shows plaintiff as a man of magnificent courage and deep feeling but at no time out of control of himself. This self-restraint is indeed almost a salient characteristic. Thus when, accompanied by a colonel, plaintiff was sent to report to a general at the American Club the important news of the loss of the PT boat and some of his men, and of the PT’s sinking of a Japanese cruiser, he was kept waiting an unconscionable time. Though the plaintiff got mad, apparently inside, he does not appear to have moved a muscle externally except to go over and have a Coca-Cola with the colonel, (p. 178). Another time when an army colonel assigned him the duty of leading fifty carabao — that is, milk cows — after they were rounded up, plaintiff “didn’t say much”; he waited to see if the order would not be superseded by his right to take the expected plane; and by waiting, the conflict was avoided, (p. 197). In short, Mr. White’s impression, — like the one I myself gathered from plaintiff’s appearance in court — is that he has unusual steadiness of temper.

Since the true names of the plaintiff and the others were set forth in the foreword and in the body of Mr. White’s book, I find that their names and identities became widely known in book-reading communities, such as Boston and its suburbs.

Recognizing the dramatic value of the book, a score of representatives of motion picture producers approached plaintiff, who was still on duty in the continental United States, to secure his permission to portray his character and exploits on the screen. Plaintiff repeatedly refused. I find that his primary reason was his natural reserve and distaste for self-advertisement; his secondary and distinctly minor reason was that the publicity might operate to prejudice his professional career. To meet that second objection, Honorable Frank Knox, a former newspaper publisher, then Secretary of the Navy, on December 15, 1942 wrote a letter directly to plaintiff stating that the proposed motion picture “seems to be for the best interests of the Navy Department. A copy of this letter has been forwarded to the Bureau of Personnel for inclusion in your official record.” [Ex. 3], Reading between the lines of that letter, plaintiff understood and I conclude that a reasonable person would have understood that the letter was the equivalent not of a command but of a peremptory preference carrying overtones of possible consequences if the writer’s pleasure or displeasure were awakened by the recipient’s reaction.

Even after receiving Secretary Knox’s letter, plaintiff desired to limit the license which he would give defendant as the producer of the motion picture, They Were Expendable. He rejected various drafts of a proposed license which were submitted to *479 him. (R. 116). Finally, on December 21, 1942 he signed a letter which he did not write and which was submitted to him by the Office of Public Relations of the United States Navy which in this instance was, I find, acting on behalf of the motion picture producer which was the intended beneficiary of the license. The text of the letter is as follows:

(Undated)

“Loew’s Incorporated 1540 Broadway

New York, N. Y.

Dear Sirs:—

I am one of the Navy officers of whom Mr. White wrote in his book ‘They Were Expendable.’ You are proposing to produce this book, or your version of it, in motion pictures and television and radio performances, but the law in some of the states is that before you impersonate me or use a character that would correspond to me, you need my approval. I now waive, as to you and your assigns and licensees, all personal rights and objections to any use to be made of me or my personality which has the approval of the United States Navy. If the Navy .approves, then so far as I am concerned I can be depicted or a character used that may correspond to me, in pictures, radio and television performances and their publicity, with such action, depiction, dialogue and story (fictional or actual), as passes Navy approval. As to name, any name except my exact name can be used for this character that meets Navy approval, even if it is similar to my real -name.

This release is granted by me subject to your agreement that the romance shall not be elaborated beyond the portrayal of it in the book and, if possible, shall be played down; and that the historical events in the picture shall be portrayed as accurately as possible in such a screen dramatization.

Yours very truly,

s/ Robert B. Kelly”

Some time passed and plaintiff’s mind was on matters far removed from the motion picture world. On May 28, 1944 plaintiff married Miss Hazel Babcock Watts, who was living with her parents in their home in Malden, Massachusetts. He secured a short leave and he and his bride spent part of their honeymoon, perhaps a fortnight, in her parents’ home. He met then, as he had met previously when he was courting his future wife, her family and friends who were living in the Greater Boston area.

Afterwards plaintiff and his wife went to Florida where he was officially stationed. In that Florida neighborhood defendant happened to be taking some of the “shots” for the film, They were Expendable. Plaintiff’s recollection being refreshed by hearing of that enterprise, he determined to call upon defendant’s officers at Culver City, California, when, a few weeks later, he and his wife were in San Diego preparatory to plaintiff’s departing for the Far East to participate in the Okinawa campaign and occupation.

On arriving in California in February 1945, plaintiff conferred with Messrs. Wead and Reed, employees of defendant. Wead was a former commander in the United States Navy who, after having been crippled in service, retired to become an employee of defendant in producing motion pictures concerned with naval subjects. Wead and Reed sent for the script of They Were Expendable. Both of them examined it. (R. 53). One of them, probably Reed, handed the script to the other, probably Wead, who in turn handed it to plaintiff. Wead expressed confidence that plaintiff would be satisfied with the script and suggested that plaintiff should notify him if he had any comments.

On returning to his hotel, plaintiff hastily leaved through the pages of the script. He read perhaps a third or a quarter of it, and up to then found nothing that gave him pain. In the confusion of departure, the script was put in Mrs. Kelly’s bag, not in plaintiff’s. Later Mrs. Kelly sent the script to her husband but he did not read it until June, 1945, after the Okinawa campaign. At once he wrote a letter of protest to defendant. Defendant’s representative replied that the picture had reached the cutting stage and that it was too late to alter it, but that the representative was confident that plaintiff would be satisfied.

In January 1946, the motion picture, They Were Expendable, as produced by defendant, was exhibited in Loew’s State *480 and Loew’s Orpheum in Boston and was seen by large crowds — though there is no evidence as to any particular person or class of persons who attended the performances. Following the showing plaintiff was in the Greater Boston area and at social and like gatherings he often felt embarrassment, uneasiness and self-consciousness in seeing such acquaintances and meeting such new persons as had seen the portrayal of him in the movie. (R. 67).

At some unspecified time, whether before or after the showing of the movie does not appear, plaintiff was awarded the Navy Cross and a number of other unsolicited medals, including the Silver Star medal with Gold Star in lieu of second award, the China Service medal, the American Defense medal, the American Theatre of Operations medal, the Asiatic-Pacific Theatre of Operations medal and the World War II Victory medal (R. 68). Also on his own application he was in 1946 awarded the Purple Heart on account of the snagged finger which led to his hospitalization. Since the summer of 1946 and pursuant to orders issued in May 1946, plaintiff has been serving as an instructor in the Department of Marine Engineering at Annapolis. (R. 69). He has in the meantime attained the permanent rank of Commander in the United States Navy.

The picture, They Were Expendable, opens with the statements that it is based upon the book, They Were .Expendable, by William L. White, and that it was produced under the direction of Commander John Ford, U.S.N., and with the cooporation and assistance of the United States Navy. It concludes with a list of the characters, of which in the order given by defendant, the first is “Lt. Brickley” played by Robert Montgomery and the second is “Lt. ‘Rusty’ Ryan” played by John Wayne. And there is the customary legend that “The events, characters and firms depicted in this photoplay are fictitious. Any similarity to actual persons, living or dead, or to actual firms is purely coincidental.”

Between the start and the end of the film the story is given in the following form. The PT boats were a new venture in 1941. Regular naval officers looked upon them with skepticism. But Brickley had great faith in them and had induced his intimate friend, Ryan, to stake his career on their future. When first reviewed by high officers in the Philippines, the squadron received such- a cold reception that Ryan decided that Brickley was overenthusiastic and that the PT boats would never be recognized for their value. Immediately he went to a bar to write out his request for transfer from PT duty to destroyer duty. He was about to present the request when the announcement came in the bar that Pearl Harbor had been attacked. Ryan at once changed his mind and tore up the request for a change of assignment. They both reported to the admiral in charge of Cavite. He then gave the PT boats only messenger and ferry service. Ryan was put out; kicked a can in disgust; and showed general displeasure. However, he remained with the squadron. And shortly afterwards while dining with his fellows, he and they heard a Japanese air attack coming. All hurried to the PT boats, put them out to sea, and at once were bombed by Japanese planes. In this engagement Ryan got shrapnel in his arm.

At first Ryan ignored the arm wound. One day he and Brickley were summoned by the admiral to discuss an important combat task. Both received assignments. Ryan proposed to ignore his wound. Brickley, however, became aware of its importance and sent him to the Corregidor hospital. An attractive, slim nurse, holding the rank of second lieutenant and named “ ‘Sandy’ Davis!’, ordered him to lie down and put on a blanket. At first Ryan objected and inquired as to her rank. She reminded him of her authority as a nurse. He obeyed, lay down and covered himself with a blanket. She and an orderly pulled off his trousers in a perfectly proper way. There seemed to be no sympathy between the nurse and Ryan. Another patient who was an onlooker said that every man in the hospital was fond of Sandy.

Some days later there was a dance to give the nurses some recreation. Initially Ryan, when asked by Sandy, said he didn’t dance and wouldn’t go to the dance. After strains of music reached him, Ryan strolled over to the dance hall. Sandy asked him if he really didn’t dance. He *481 said he did. They danced and then they went out on a porch and sat down. In the picture she nestled close to him. In the tradition of the third chapter of Genesis, the female took the lead. But so far as defendant’s film shows, Ryan did no more than offer a comforting arm and hand.

The film then showed plaintiff returning to PT duty. His boat as well as others participated in stirring naval engagements, including the battle with the Japanese cruiser and the later bombardment and destruction of Ryan’s PT boat by Japanese planes. In one of these scenes Ryan acts heroically saving his wounded companion from strafing by Japanese seaplanes. After that attack has concluded there is a funeral for those of Ryan’s crew who died. No priest is available. So the survivors assemble in a Catholic church where Ryan as senior officer conducts the service by saying a few words and reciting a moving poem. An enlisted man, after requesting Ryan’s permission, plays “Taps” on his harmonica. Overcome with emotion, Ryan leaves during the final notes of “Taps” and rushes to a neighboring bar. The proprietor is about to close for the day. Ryan seizes a bottle of liquor from the proprietor’s basket, makes him re-open the bar, sits down at a table and pours out two drinks for himself. Others of the crew drink at the main bar.

In one of the intervals between the battles comes the assignment of Brickley and Ryan to carry from the Philinnines dignitaries whose identity is not at first disclosed. As they are about do leave Cavite, Ryan tries to get Sandy on the telephone to say good-bye. They start talking but the connection is interrupted by the wires being torn down by army officers or men. Ryan goes to his boat. One of his juniors has the helm. When Ryan sees who the dignitaries are, he shoves his junior aside and takes the wheel. The boats safely transport the principal personages, General MacArthur and his family and an Admiral called “Blackwell”.

Finally there is an order from Washington directing Brickley, Ryan and two others to return to • the United States to discuss with high naval officials the value of PT boats and their performance. Brickley and Ryan are reluctant to leave their associates who have not been similarly removed from danger. But they nonetheless bid their companions farewell in a moving scene in which the Chief Boatswain’s Mate who is left behind wounded says “The book doesn’t mean much out here so I’m going to say: So long Brick. You’ve been a swell guy.” Brickley replies: “So long, Irish.” The Chief Boatswain’s Mate Mulcahey says “So long, Rusty”. Ryan answers: “So long, you big Mick”.

Arrived at the airport, Brickley and Ryan are given seats 27 and 28 in a plane with space for 30. At first the men who should receive spaces 29 and 30 do not appear. Two substitutes are seated. Then, as the plane is about to take off, the men originally assigned for seats 29 and 30 arrive. One of the substitutes as he leaves gives Ryan a message for home. Ryan impulsively offers the substitute his seat and says he, Ryan, “has business” still to do in the Philippines' — by which the audience might infer either that Ryan wants to continue fighting or, that Ryan has to see Sandy. Brickley intervenes sharply asking Ryan “Who’re you working for — yourself.” The picture comes to an end.

In substance, the script which was given to plaintiff in California in February, 1945, does not diverge sharply from the final motion picture. There are in the script some more romantic scenes — including one in which Ryan puts his and Sandy’s name inside a heart he draws (R. 61, Ex. 5, Sc. 241, p. 92) — and the language and conduct of Ryan toward his fellow officers and his men is a shade more colorful and unrestrained. But for reasons which will become apparent in the course of this opinion I need not dwell on these minor discrepancies.

Looked at in the broadest way, both the film and the script depict Ryan as a gallant officer, zealous to serve the nation, respectful of his superiors, companionable with his equals, considerate of his men, responsive — but not too responsive — -to the charms of women. He has the striking virtues of his race — kindliness, generosity, humor, love of his fellow men, impetuous eagerness for action, exuberance of spirit. He is the sort of man that crowds like because they admire his virtues and condone *482 his faults. They see the brave heart of the hero, the sportsmanship of the open fighter, the quick emotion of the sensitive man. And if they also see hastiness, occasional intemperance, minor infractions of rules, impatience at official blindness, they regard those as being not faults at all or the sort of faults which are the mark of the man of courageous action, the man of large heart, the man who lives by the spirit and not by the letter.

But Ryan appears somewhat differently if he is looked at in the tradition of the professional class of naval officers. He then appears an undisciplined man. Discontented with a PT boat assignment which seems to lead neither to glory nor the grave, he impatiently prepares a request for transfer. He gives vent to his feelings by kicking around cans. He reprimands men in public. He resents and at first resists the authority which an army nurse has over a patient in any army hospital. He shoves a man away from the helm of his boat. He loses his composure when conducting ceremonies for the dead. He seeks consolation for his grief not merely by going to a bar, but by requiring the bar-keep to remain open and by seizing from his possession a bottle of liquor. He fraternizes with his commanding officer and with his men. He is, until reminded of his duty, prepared to ignore the order that he return to the United States merely so that he can attend to his own personal business with a girl. Viewed from the professional aspect Ryan may be a hard fighter of noble character, but he does not measure up to the, shall I say, “regulation” model of a good officer.

On the facts as I have just stated them, these are my conclusions of law.

1. This case is properly removed into the United States District Court on the basis of diversity of citizenship. I find that plaintiff is a citizen of Massachusetts (R. 35), and defendant a Delaware corporation, and there is at stake a controversy involving, exclusive of costs and interest, more than $3,000.

2. In this proceeding I am required to follow the principles of conflict of laws which prevail in the state courts of Massachusetts. Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Hartmann v. Time, Inc., 3 Cir., 166 F.2d 127. The ordinary rule of conflicts invoked by Massachusetts in tort cases is to apply the law of the place of the wrong. Murphy v. Smith, 307 Mass. 64, 29 N.E.2d 726; National Fruit Product Co. v. Dwinell-Wright Co., D.C.Mass., 47 F.Supp. 499, 504.

There is no difficulty in applying that ordinary rule to count 1. That related solely to the script; and at the trial the only evidence offered of a showing of the script was evidence of a showing in California. Thus California law would be applied by Massachusetts to that transaction. Murphy v. Smith, supra.

Greater complexity arises in connection with counts 2 and 3. Complaint was made in those counts and evidence was received on those counts with respect to showings of the film itself solely in two Massachusetts theatres during specified weeks.

If complaint had been made of showings not only in Massachusetts, but elsewhere, the Massachusetts court would have been clearly faced with the need of determining whether to regard the conduct complained of as a single tort [see, for example, the Pennsylvania rule referred to in Hartmann v. Time, supra] or as multiple torts [see, for example, Hartmann v. American News Co., D.C.Wis., 69 F.Supp. 736, 738, 739]. If it took the single tort view the Massachusetts court would presumably regard as “the publication” riot the circulation of the script (which admittedly differed from the movie), nor the circulation of the “continuity” of the film, nor the first showing of the picture to the producer’s employees, but rather the first showing of the picture to the public. Then the Massachusetts court would have to determine whether the law to be applied to that “publication” was the law of the place of production, or the law of the place of the first showing of the film to the general public, or the law of plaintiff’s domicil, or the law of the place where plaintiff enjoyed his principal reputation, or some other law. Note, 60 Harv.L.Rev. 941. See also 59 Harv.L.Rev. 136. So far as I am aware, the law books give no indication how the Massachusetts *483 state courts would decide any of the issues referred to in this paragraph in a case where complaint was made of multiple showings in many states. Indeed, Massachusetts has never indicated whether multiple showings in a single state constitute one or several torts. Holmes, J., specifically reserved the question in Bigelow v. Sprague, 140 Mass. 425, 428, lines 8, 9, 5 N.E. 144, 146: “whether the publication of the edition is to be regarded technically as, so to speak, one composite act, we need not consider.”

To be sure, the complaint at bar is limited to showings in Massachusetts alone. The mere fact that the complaint is so limited does not as a matter of logic avoid the problem stated in the preceding paragraph. In other words, logically the Massachusetts court must decide whether such local showings are or are not a part of a composite multi-state tort. The only time the Massachusetts court faced up to that logic it ruled that such local showings were not a part of a single multi-state tort. Commonwealth v. Blanding, 1825, 3 Pick. 304, 311, 15 Am.Dec. 214. In that case defendant printed a defamatory newspaper in Rhode Island, and circulated it there and in Massachusetts. A criminal proceeding was brought in Massachusetts on account of the circulation in Massachusetts. It was held by the Supreme Judicial Court that a separate publication occurred in Massachusetts and was criminally punishable under the law of Massachusetts. This case can of course be distinguished. First, it is a criminal case where local policies may have peculiar force. Second, it is a case which was decided in an age unfamiliar with mass media of circulation such as our modern periodicals, motion pictures and radio broadcasts. Despite these distinctions the case has been followed recently and is sometimes cited for the proposition that a circulation of alleged defamatory material within Massachusetts subjects the circulator to the rules of Massachusetts law.

Indeed, the cases in the United States District Court for Massachusetts based upon its diversity jurisdiction go far to sustain the proposition just stated. Thus in O’Reilly v. Curtis Pub. Co., D.C.Mass., 31 F.Supp. 364, 365, Judge Brewster treated the circulations in Massachusetts (1) as separate from those in Rhode Island and (2) apparently as constituting a composite. “The publication in each of the thirty-eight states gives rise to separate causes of action. The defendant’s liability for the libel published in each state is governed by the laws of that particular state. For example, the publication in Rhode Island would support a separate action * * In Wright v. R. K. O. Radio Pictures, D.C.Mass., 55 F.Supp. 639, a libel suit in which plaintiff complained only of publications in Massachusetts, though the publication involved a motion picture which had been nationally distributed, Judge Sweeney applied Massachusetts law. In McGlue v. Weekly Publications Inc., D. C.Mass., 63 F.Supp. 744, where complaint was made of circulations in many states Judge Sweeney applied the Massachusetts Statute of Limitations apparently on the theory that all circulation inside and outside Massachusetts was a composite wrong which occurred on the day of the first circulation in Massachusetts. In Curley v. Curtis Pub. Co., D.C.Mass., 48 F.Supp. 29, 30, note 3, where there was a jury trial of a Massachusetts citizen’s complaint alleging the circulation in 48 states of an alleged defamatory statement I applied the law of Massachusetts.

The foregoing authorities seem to me to justify my concluding that the Massachusetts rule is that where a person who is domiciled in Massachusetts and whose chief reputation is not shown to have" any particular locus complains in Massachusetts of only the circulation within Massachusetts of an alleged defamatory statement, the court applies- Massachusetts law. This rule has the merit of simplicity, of readiness in ascertaining the governing precedents and statutes, and of applying the standard of the community where plaintiff’s reputation is presumably most affected. This rule does not necessarily imply that every circulation in Massachusetts is part of one composite act, nor that every circulation outside of Massachusetts is part of the same composite act as the circulations in Massachusetts. Such implications might be logically sound and consistent with the rational of the rule *484 as I have stated it. But decision on those implications should await an appropriate case. Before that case arises the problem may be dealt with by local or federal statute. Surely no problem more imperatively requires the attention of those interested in the combined* field' of torts and conflict of laws.

3. With respect to the script the first serious issue is whether there was any publication at all. On the view of the evidence most favorable to plaintiff the script was shown by defendant to Wead, to Reed, and to clerical, production, theatrical and other internal employees of Loew’s. (Of course, the showing to Mrs. Kelly was only by plaintiff, not by defendant.) Publication by one employee of a corporation to another employee has been squarely held by the Massachusetts court to be a publication sufficient for the purposes of a libel suit. Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 348, 349, 47 N.E.2d 595. But the precise issue is whether the same ruling would be made by the courts of the state of California. There appears to be no direct California authority. However, since I am sitting in a diversity jurisdiction case removed from the Massachusetts state courts, since the Massachusetts rule treats an intracorporate communication of a defamatory statement as a publication, since Massachusetts presumes in the absence of evidence to the contrary that California’s common law is like its own [Cormo v. Boston Bridge Works, 205 Mass. 366, 368, 91 N. E. 313] and since Restatement, Torts, § 577, comment (e) and a number of recent cases collated in 166 A.L.R. 114, lend themselves to support of the Massachusetts rule, I shall conclude for the purpose of this case that California also treats an intra-corporate communication of a defamatory statement as a publication.

4. However, the script was published only to persons in the motion picture industry. Even Wead was an employee only of defendant, not of the Navy. And a central question is, if we assume that they identified plaintiff with the character Ryan, was their opinion of him or his reputation lowered or likely to be lowered in any way by reading the script? We are in this aspect of the case con-' cerned with what would be the opinion not of the general public nor of naval officers, nor of plaintiff himself, but of persons in the motion picture industry. ' There is no reason to believe that persons in that industry are peculiarly sensitive to standards of naval discipline, official propriety and etiquette. Nor is there ground for supposing that they hold cool detachment in higher esteem than warmth of heart, vigor of expression and display of intensity of feeling. Hence to that audience the publication of the script — including love scenes somewhat , more torrid than those that finally appeared on the screen— was not the publication of anything that held plaintiff up to contempt, hatred or ridicule in their eyes or that lowered their estimate of plaintiff’s reputation. To that audience it was not a defamatory statement. Cf. Restatement, Torts, § 559, comment (e), p. 142, lines 3-9; § 569, comment (d); § 614(2).

5. Nor on this record can it be successfully contended that regardless of the views of persons in the motion picture industry, the script was defamatory per se because it depicted plaintiff as , engaged in unlawful conduct. It is conceivable that Rusty Ryan by action, gesture or word, may have violated a regulation adopted by the Navy pursuant to statute, and may thus have committed an offense punishable by court-martial. But the pleadings and the testimony at bar point to no such violation. It is not the task of the Court to search out every naval regulation, to consider whether any part of Ryan’s conduct offends that regulation and then to decide whether the insinuation of such offence is for purposes of a libel suit to be regarded as the charge of a crime of the type which if oral makes a statement defamatory per se. Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 341, 47 N.E.2d 595. Cf. Restatement, Torts, § 571, comment on clause (a), p. 173.

6. Now I turn from the script to the motion picture itself. Defendant first contends that it is not accountable for the showing of the picture at the two- *485 Boston theatres referred to in the complaint. If I understand counsel’s argument, it is that one who produces an allegedly defamatory motion picture for exhibition and who distributes it to an exhibitor, is not liable for the injury inflicted by that particular exhibitor’s showing. This argument is so preposterous as hardly to require answer and certainly not citation of extensive rebutting authority. The producer intended the very exhibition that occurred. It was not a performance independent of its will but the ultimate end toward which the whole production was directed. That the final exhibitor was technically an independent contractor not an agent of the producer is irrelevant. Merchants’ Ins. Co. of Newark, N. J. v. Buckner, 6 Cir.,