Milkovich v. Lorain Journal Co.

• Citation: 65 Ohio App.2d 143,416 N.E.2d 662
• Parties: , 19 O.O.3d 99, 6 Media L. Rep. 2185 MILKOVICH, Appellant, v. The LORAIN JOURNAL COMPANY et al., Appellees. *
• Decision Date: 03 December 1979
• Court: United States Court of Appeals (Ohio)

Page 143

65 Ohio App.2d 143

416 N.E.2d 662, 19 O.O.3d 99, 6 Media L. Rep. 2185

MILKOVICH, Appellant, v. The LORAIN JOURNAL COMPANY et al., Appellees. ^*

Court of Appeals of Ohio, Eleventh District, Lake County.

Dec. 3, 1979.

Syllabus by the Court

1. Though the press might be at liberty to criticize the judicial process and the results of a given case, unless and until the judgment of the court is overturned on appeal, the determination of what constitutes the truth has been made.

2. Thus, any news article written either as fact as a news item, or as opinion, that is published knowing that it conflicts with a judicial determination of the truth, may be regarded as a reckless disregard of the truth so as to constitute "actual malice" so as to be actionable libel of a public person.

3. Whether the publication constitutes a reckless disregard of the truth is not a question of law, but a question of fact based on the evidence before the court.

4. In a motion for a directed verdict, if the facts are undisputed, the issue is one for the court; but, where the circumstances are such that reasonable minds might reach different conclusions as to the inferences to be drawn from the undisputed evidence, there arises a question of fact for the jury.

Nathan Simon and Michael J. Occhionero, Cleveland, for appellant.

Wickens, Herzer & Panza Co., L.P.A., William G. Wickens and David L. Herzer, Lorain, for appellees.

HOFSTETTER, Judge.

The matter on appeal came on for trial before a jury. After the plaintiff-appellant rested his case, the defendants jointly moved the court for a directed verdict in their favor on the grounds that there was no justiciable issue for the jury and that reasonable minds could come but to one conclusion, to wit, that the proof failed to show by clear and convincing proof that the article which is the subject of this action was published with knowledge of its falsity or with reckless disregard as to its truth.

The trial court granted the motion in favor of the defendants, as follows:

"The Court finds that reasonable minds can come to but one conclusion, to-wit: that the evidence (construed most strongly in favor of the Plaintiff) fails to establish by clear and convincing proof that the article which was the subject of this action was published with knowledge of its falsity or in reckless disregard of the truth, and that there is no justiciable issue for the jury. Exceptions to the Plaintiff."

It is from this judgment, granting a directed verdict for the defendants, that plaintiff has appealed.

As background, the complaint in the court below was an action in libel filed by the plaintiff-appellant, Michael Milkovich, against the defendants-appellees, The Lorain Journal Publishing Company, owner and publisher of the Willoughby News-Herald, and Mr. Theodore Diadiun, as the result of the publication of a certain article on January 8, 1975. The article in question was stipulated at trial and admitted into evidence.

The events which led to the eventual publication of this alleged libelous article began on the evening of February 9, 1974, at a routine high school wrestling match between Mentor High School and Maple Heights High School. The latter team was coached by the now-retired Michael Milkovich, appellant herein. It appears that, during and shortly after a wrestling match between Bob Girardi of Maple Heights and Paul Pochatilla of Mentor High School, an alleged melee broke out among the fans and spectators in the crowd, and among the wrestling participants themselves. One of the defendants, Ted Diadiun, a sportswriter for The News-Herald, wrote a series of articles following the occurrence.

Following the altercation, a series of hearings were conducted by the Ohio High School Athletic Association (OHSAA) in Columbus, Ohio, following which the Maple Heights team was totally suspended from state competition, and the appellant, Michael Milkovich, was censured.

It was at this time that a group of parents and wrestlers filed suit in the Court of Common Pleas of Franklin County in an action styled as Barrett v. Ohio High School Athletic Association. It was held by that court that the OHSAA failed to safeguard certain due process rights in suspending the team from state competition, thereby denying the team members of important property rights without due process of law.

Immediately after the announcement of the decision of Judge Martin of the Court of Common Pleas of Franklin County reinstating the Maple Heights team to state competition, the defendants published the alleged libelous article with the headline "Maple beat the law with the 'big lie.' "

Factually, therefore, it should be noted that, following the alleged melee between the Maple Heights and Mentor wrestling crowds, and as a result of hearings, the OHSAA suspended the Maple Heights team from state competition. Defendant Diadiun attended both the wrestling meet between the two teams as well as the OHSAA hearing. The subsequent action against the OHSAA in Franklin County was brought to determine whether certain due process rights were accorded the Maple Heights team before it was suspended from state competition. Defendant Diadiun did not attend the trial. The Franklin County trial was held on November 8, 1974, and the decision was announced on January 7, 1975, reversing the administrative action (of suspension). The reversal was on procedural grounds.

Pertinent to further discussion of publication on January 8, 1975, of the article which was headlined "Maple beat the law with the 'big lie' " are the following statements made during the cross-examination of Diadiun:

"Q. Now, when did you first become aware of the fact that this was a due process hearing and not a fault-finding hearing, if ever you became aware of it?

"A. I thought that the fault-finding would be included in the trial, yes. I knew that due process was one of the issues. I also thought that one of the issues were (sic ) whether or not who was at fault.

" * * *

"Q. Isn't it a fact, Mr. Diadiun, that you never read any transcript of what occurred at that trial until after you published the article?

"A. Yes.

" * * *

"Q. Didn't you think it was necessary for you to read that decision (of Judge Paul Martin of the Court of Common Pleas of Franklin County) before you published such an article?

"A. Like I said, I knew the background of the whole case. I knew what Dr. Meyer told me went on at that trial. I didn't feel that I needed

" * * *

"Q. The fact of the matter is, you never took the trouble to find that decision and read it, did you?

" * * *

"A. I didn't find the decision, no.

"Q. You didn't find it necessary to read it?

"A. No."

With the above as a fair predicate of the facts pertinent to our discussion of the directed verdict, we list appellant's ten assignments of error as follows:

"1. The Court erred in granting the motion of defendant-appellee for directed verdict at the close of testimony of the plaintiff.

"2. The Court erred in its ruling that plaintiff failed to meet the burden of proof by clear and convincing evidence at the close of testimony of the plaintiff, and that it was a necessary element for purposes of ruling upon a Motion For Directed Verdict.

"3. The Court erred in its ruling that plaintiff was severely lacking in any evidence to prove defendants published the Article with 'knowledge of its falsity.'

"4. The Court erred in its ruling by applying the incorrect law of Libel i. e. the Actual Malice test by omitting the proposition of law that the publisher acted with 'total disregard for truth or falsity ' and basing its findings exclusively upon the facts and law that plaintiff was severely lacking in any evidence to prove defendants published the Article with 'knowledge of its falsity.' (Emphasis sic.)

"5. The Court erred in failing to apply the legal standards set forth in Rule 50(A)(4), in ruling upon defendant's Motion For Directed Verdict.

"6. Should the Appellate Court apply Rule 50(A)(4) to the trial proceeding and ruling in the lower court, then Appellant alleges the trial court erred in effect in its findings that:

"(a) That reasonable minds could not draw different inferences or conclusions from the evidence presented, relevant to the Actual Malice test i. e. knowledge of its falsity, and/or defendant's total disregard for truth or falsity;

"(b) That reasonable minds could come to but one conclusion, after construing the evidence most strongly in favor of the plaintiff, that there was no dispute, doubt, conflicting testimony, question, or any evidence in plaintiff's case to prove that defendant acted with Actual Malice i. e. knowledge of its falsity, and/or total disregard for truth or falsity in publishing the alleged libelous publication.

"7. The Court erred in denying appellant the right to introduce into evidence the transcript of the record of the case of Ray Barrett v. OHSAA in the Court of Common Pleas, Franklin County.

"8. The Court erred in its ruling upon defendant's Motion For Directed Verdict, by failing to mention the requirement set forth in Ohio Rule 50(E); and in fact, not construing the evidence most strongly in favor of the plaintiff.

"9. The Court erred in its ruling by holding in effect that there was no controversial evidence of any determinative issue for the jury to weigh and that to submit the case to the jury would permit them an opportunity to do unreasonable harm to the parties.

"10. The Court erred in its ruling that the defendants acted upon a reliable source."

In the instant case we have some of the attributes of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. However, we have the additional element involved that the alleged lies spoken of in the news article were made after judicial ascertainment of where the truth lay as it concerned the trial in which the alleged lies were supposedly uttered.

The New York Times case, as we...