Cochran v. Indianapolis Newspapers, Inc.

• Citation: 372 N.E.2d 1211,175 Ind.App. 548
• Decision Date: 27 February 1978
• Docket Number: No. 2-676A210,2-676A210
• Parties: , 3 Media L. Rep. 2131 June COCHRAN and Madeline Daly, Appellants (Plaintiffs below), v. INDIANAPOLIS NEWSPAPERS, INC., Harley R. Bierce, William E. Anderson and Richard E. Cady, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 1211

372 N.E.2d 1211

175 Ind.App. 548, 3 Media L. Rep. 2131

June COCHRAN and Madeline Daly, Appellants (Plaintiffs below), v. INDIANAPOLIS NEWSPAPERS, INC., Harley R. Bierce, William E Anderson and Richard E. Cady, Appellees (Defendants below).

No. 2-676A210.

Court of Appeals of Indiana, Second District.

Feb. 27, 1978.

Raymond F. Fairchild, Indianapolis, for appellants

Thomas M. Scanlon, Raymond W. Gray, Jr., Robert P. Johnstone, Barnes Hickam Pantzer & Boyd, Indianapolis, for appellees.

SULLIVAN, Presiding Judge.

The Indianapolis Star, owned and operated by Indianapolis Newspapers, Inc., published two articles authored by Harley Bierce, William Anderson and Richard Cady. These articles concerned certain alleged activities of and statements by plaintiffs June Cochran and Madeline Daly.

Cochran and Daly filed a libel complaint. Cochran sought damages in the amount of $1,250,000 against Indianapolis Newspapers, Inc. and the three reporters. Daly sought $300,000 against the same defendants. Defendants filed their answer asserting that the articles were not defamatory and, in the alternative, that there was a qualified constitutional privilege. Thereafter the trial court granted defendants' motion for summary judgment, setting forth the following reasons:

"(1) This is a libel action based upon statements which appeared in newspaper articles and photographs prepared by the individual defendants and published by defendant Indianapolis Newpapers, Inc.

(2) June Cochran is a public figure and the statements and photographs in the articles relating to her involved matters of general and public interest. The statements and photographs in the articles relating to Madeline Daly involved matters of general and public interest.

(3) Under the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution, the publications about plaintiffs are actionable only upon a (4) The record shows that there are no facts which would establish or tend to establish actual malice by defendants in preparing or publishing the statements and photographs about plaintiffs."

showing that they were published by defendants with actual malice that is, with knowledge that they were false or with reckless disregard of the probable falsity of them.

The articles in question were the result of an ongoing investigation by the three reporters concerning alleged police and prosecutorial corruption in Indianapolis. The first article, appearing on November 9, 1973, reported on the refusal of the Marion County Prosecutor's Office to issue a warrant requested by the Marion County Sheriff's Department. The warrant was sought for the apprehension of Harold Lee Lloyd, a fugitive, on charges of burglary and violation of a firearms statute.

Background information in the article revealed that Lloyd was the half-brother of co-plaintiff June Cochran and the son of co-plaintiff Madeline Daly. Cochran had been a "Playmate" for Playboy Magazine and was more recently "Miss Hurst Golden Shifter" at the Indianapolis '500' auto race.

The article stated that the prosecutor's office based its refusal to grant the warrant on the fact that Lloyd had been previously acquitted by a jury on similar charges, therefore rendering useless any further attempts to prosecute him. The article observed, however, that Cochran testified on behalf of her brother at the earlier trial wearing "provocative attire." It was also noted that both a deputy sheriff and a bondswoman who provided bail for Lloyd's release stated that Daly told them she had "political connections" and that she knew a "lot of very important people who would assist her in protecting Lloyd."

The second article appeared on November 10, 1973. The headline stated:

"Pearcy Takes Personal Control of Grand Jury in

Brothel Quiz"

An explanatory caption printed in bold letters read:

"(This story is part of a continuing investigation by reporters William E. Anderson, Harley R. Bierce and Richard E. Cady into illegal sex activities.)"

The article included a picture of Cochran and Daly with the caption:

"Ex-Bunny, Mom Meet Pearcy"

The article commenced with an account of the Chief Prosecutor's decision to take personal control of the grand jury which was investigating charges of bribery involving police and members of the prosecutor's staff. Specifically, the bribery charges concerned alleged payoffs by, and protection of, a local brothel.

Approximately a third of the way into the article, the subject shifted to the Chief Prosecutor's comment that he would recommend the grand jury hear testimony from Cochran and Daly. It was noted that Cochran and Daly charged that they were harassed by the Sheriff's office, and that they stated they would make complaints about this harassment to the grand jury. The article repeated the allegations previously printed in the November 9 article that Daly stated she had political connections and knew a lot of people. The article then renewed its discussion of the grand jury's probe into the charges of illegal sex activities and payoffs to police and public officials.

Cochran and Daly contend that the articles were the result of a systematic attempt by the three reporters in concert with a deputy sheriff, to create an appearance of underhanded dealings and involvement in illegal sex activities in retaliation for their refusal to give information concerning Harold Lee Lloyd's whereabouts.

They specifically cite three alleged defamations:

(1) In the November 9 article, the implication that Daly had used "political connections" to prevent the issuance of the warrant (2) In the November 9 article, the statement that Cochran appeared at Lloyd's trial in "provocative attire," and;

(3) In the November 10 article, the implication that both Cochran and Daly were involved in "illegal sex activities."

I. ALLEGATION THAT STATEMENTS AND IMPLICATIONS WERE DEFAMATORY

A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Hotel and Restaurant Employees and Bartenders Intern. Union v. Zurzolo (1968) 142 Ind.App. 242, 233 N.E.2d 784. A false imputation of criminal activity gives rise to a cause of action for defamation, but the imputation must bear some reasonably close relation to the legislative definition of a crime. Gibson v. Kincaid (1966) 140 Ind.App. 186, 221 N.E.2d 834.

A statement that one has "political connections" and knows a lot of "prominent local officials who can keep her son out of prison," when placed in the context suggesting that such advantages have in fact led to illegal activities, is defamatory. In the case before us, the possible implication of the statement was that Daly had used these "connections" in the prosecutor's office to effect the criminal act of impeding the issuance of a warrant. See I.C. 35-1-97-1 (Burns Code Ed. 1975).

The statement that Cochran appeared at Lloyd's trial in "provocative attire", however, does not appear to be of such a nature that it would cause shame, ridicule and contempt, or that it would suggest incompatibility with her profession. On the contrary, such statement would seem to enhance the profession Cochran has chosen and the reputation she has voluntarily promoted in her various appearances in magazines and celebrity events.

Finally, Cochran and Daly contend that the article of November 10 created an implication that they were involved in the "illegal sex activities" which were being investigated by the grand jury. It is argued that the inclusion of the story concerning their appearance before the grand jury to complain of police harassment with the description of the brothel investigation was a calculated attempt to create a false impression in the mind of the average reader.

We note that whether an article or statement could possess a defamatory meaning or implication is initially a question of law for the trial court. Henderson v. Evansville Press, Inc. (1957) 127 Ind.App. 592, 142 N.E.2d 920. In Hartmann v. American News Co. (7th Cir. 1948) 171 F.2d 581, 584, it was conversely stated:

"From the foregoing it is clear that the articles in question are susceptible to both a libelous and non-libelous meaning. In this regard a jury question is then raised. . . . (I)f upon consideration of the articles as a whole there is ambiguity as to the alleged interpretation of the articles the issue is for the jury."

And in reviewing a grant of summary judgment for defendant, the court in De Husson v. Hearst Corp. (7th Cir. 1953) 204 F.2d 234, 238, said: "(W)e can only sustain the judgment of the trial court providing we can say as a matter of law that the newspaper article in question is incapable of conveying the meaning . . . ."

The compatibility of this view with Indiana law is evidenced by the following comment in Justice DeBruler's opinion in Indianapolis Newspapers, Inc. v. Fields (1970) 254 Ind. 219, 259 N.E.2d 651, 659: ¹ "It was for the jury to determine if a As was stated in Rose v. Indianapolis Newspapers, Inc. (7th Cir. 1954) 213 F.2d 227, 228 (interpreting Indiana law): "Our question, then, is whether the article, when considered as a whole, went beyond this actual fact and necessarily implied additionally, upon the part of plaintiff, wrongful conduct . . . ." Although the alleged implication was not found to exist, the court in Rose indicated that where an ambiguity was inherent in the headlines and the article, it was for the jury to determine whether in fact such an implication was understood. The court concluded that it was "perfectly obvious that the article did not charge and in fact did not imply that plaintiff was in any way responsible . . . ." 213 F.2d at 229.

reasonable reader using words in their ordinary sense would read the articles as implying the meanings alleged by appellee. Logan v. Logan (1881) [175 Ind.App. 554] 77 Ind. 558....