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March 9, 1962


The opinion of the court was delivered by: DUSEN

This libel action is now before the court on plaintiff's MOTION FOR NEW TRIAL filed after judgment was entered for the defendant on the special verdict of the jury. *fn1" Plaintiff contended that the fourth (Exhibit P-1) in a series of six articles (Exhibits D-1A to D-1E and P-1) by Rocky Marciano (world heavyweight boxing champion from 9/23/52 until his retirement undefeated on 4/27/56), as told to two reporters (Gross and Hirshberg) and published in defendant's magazine (The Saturday Evening Post), contained defamatory material which was libelous, per se. This fourth article, published October 6, 1956, had as its title 'DIRTY WORK AT RING-SIDE' and as its sub-title 'For the first time, Rocky discloses the startling truth about his title fight with Jersey Joe Walcott.' In the article itself, the following wording appears:

'* * * it seemed like everything in the world was done to steal it from me before I even got it.

 '* * * I was almost blinded for three rounds of the fight.

 '* * * here's the truth, as it was told to me by the policeman who found out. I was blinded by capsicum Vaseline. According to the policeman, Walcott's manager, Felix Bocchicchio, rubbed it on Joe's gloves and on the upper part of his body. From the sixth round through the eigth, every time Walcott jabbed me and his glove came in contact with my eyes, or every time I clinched with him and got my face against his body, my eyes would smart.' *fn2"

 I. Alleged Errors in Rulings on Evidence

 A. The identity of Melchiore's informer was privileged (par. 2 of Motion For New Trial).

 On the issue of conditional privilege (N.T. 100), defendant produced evidence during its case that Melchiore, a Philadelphia police officer, had told Marciano in 1953 at Grossinger's that plaintiff has been given capsicum vaseline for the first Walcott-Marciano fight of September 1952 (N.T. 102). Marciano never learned the name of the informer (N.T. 139). Melchiore refused to give Hirshberg the name of the person from whom Melchiore is supposed th have received his information (N.T. 405, 406). Editor Paxton was furnished the tape of the Hirschberg-Melchiore interview and heard it prior to publication (N.T. 276). As part of his rebuttal, plaintiff's counsel called Melchiore (now a county detective, assigned to the District Attorney's office -- see N.T. 368), and stated that the following question was being asked the witness on the issue of truth (N.T. 374-6):

 'Now, at the time of the visit to Mr. Marciano at Grossinger's, what information did you possess, if any, as to what caused the impairment to Mr. Marciano's vision?' (N.T. 371, 374, 376).

 Melchiore answered (N.T. 376 & 377):

 'I had received some information that capsicum Vaseline was used on the gloves of Jersey Joe Walcott.

 '* * * the complete information I had was what was given to Felix Bocchicchio by Blinky Palermo, capsicum Vaseline, and it was put on the gloves of Jersey Joe Walcott.'

 After stating that this information came 'from an information of mine' (N.T. 377), Melchiore was asked by plaintiff's counsel (N.T. 379-380), 'Who told it to you?' The witness stated 'I do not wish to answer' *fn3" and was questioned by counsel and the court outside the presence of the jury in order to determine whether he could be persuaded to answer the question voluntarily or should be required to answer it. The record discloses that Melchiore had consistently refused to answer this question, when asked by Hirshberg and when his deposition (Document No. 20) was taken in this case, since 'in police lines we never name our informers' (N.T. 406). In answers to questioning by the trial judge, the witness stated that he felt he should not answer for these reasons:

 'A Because I have -- I have other informants, also, which is a very important part of my life of a police officer, or any law-enforcement officer. Informants are very important.

 'Q That is right. I understand that.

 'A And you could just about say we are only as good as our information is outside and if I reveal the name of one, there is not one of them out there will ever trust me again in other information. I have informers throughout the City of Philadelphia, and if I reveal the name of one, I know I am lost to everything. My job as a law-enforcement officer would be very hard.

 'Q Well, now, is this particular man this important to you when, if I ordered you to do it, how could he reasonably expect you not to?

 Plaintiff's counsel then questioned the witness as follows (N.T. 391-3):

 'Q Now, I am not going to ask you at this point --

 'I am not going to ask you his name, but to establish who he is, he is a police informer?

 'A Yes, to me, yes.

 'Q That is, he informs to you on the cases of crime and investigations ...

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