484 F.2d 150 (6th Cir. 1973), 73-1081, Cantrell v. Forest City Pub. Co.

Docket Nº:73-1081.
Citation:484 F.2d 150
Party Name:Margaret Mae CANTRELL et al., Plaintiffs-Appellees, v. FOREST CITY PUBLISHING CO., a corporation, et al., Defendants-Appellants.
Case Date:September 10, 1973
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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484 F.2d 150 (6th Cir. 1973)

Margaret Mae CANTRELL et al., Plaintiffs-Appellees,

v.

FOREST CITY PUBLISHING CO., a corporation, et al., Defendants-Appellants.

No. 73-1081.

United States Court of Appeals, Sixth Circuit.

Sept. 10, 1973

Argued June 12, 1973.

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[Copyrighted Material Omitted]

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Smith Warder, Cleveland, Ohio, for defendants-appellants; Arter & Hadden, Cleveland, Ohio, Sabin, Bermant & Blau, New York City, of counsel.

Harry Alan Sherman, Pittsburgh, Pa., for plaintiffs-appellees; Austin T. Klein, Krause, Klein, Fromson & Fuerst, Cleveland, Ohio, of counsel.

Before EDWARDS, PECK and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

In this diversity case a jury awarded damages to two private citizens in their action for invasion of privacy against the publisher of The Cleveland Plain Dealer, a reporter and a photographer. At the conclusion of the plaintiffs' case, in response to a motion for a directed verdict on behalf of all the defendants, the District Court found "that there has been no evidence to support the charges that the invasion of privacy, if in fact an invasion of privacy occurred was done maliciously within the legal definition of that term." The Court then ordered stricken all allegations relating to punitive damages, and dismissed as to several infant plaintiffs, but denied the motion for a directed verdict as to the two plaintiffs who are appellees. The issue is whether, having ruled that there was no evidence that the defendants had acted maliciously "within the legal definition of that term," the District Court should have granted a directed verdict. The defendants renewed their motion at the conclusion of all the evidence and made a timely motion for judgment notwithstanding the verdict or a new trial. All these motions were likewise denied. We reverse.

On December 15, 1967 a bridge across the Ohio River at Point Pleasant, West Virginia collapsed. Among the fortyfour persons who lost their lives in this tragic accident was Melvin Aaron Cantrell, the 40-year old father of seven children. The "Silver Bridge disaster," as it was labeled by the press, was page one news throughout the country. The Cleveland Plain Dealer sent the defendant Joseph Eszterhas, a feature writer, to the scene and one of his dispatches which was published a few days later described the funeral of Melvin Cantrell. This story was written in the style of a news feature rather than a purely factual account. It dwelt upon the tragic consequences, rather than the details of the accident itself. The article focused on the condition of the Cantrell family as illustrating these consequences.

In early May 1968 Eszterhas and a Plain Dealer photographer, the defendant Richard T. Conway, returned to the Point Pleasant area to do a follow-up feature. Both newspapermen were off duty and operating free-lance. However, before they left Cleveland one of the editors of the Plain Dealer told them that if they came up with a good story the paper would buy it. After stopping for directions, Eszterhas and Conway went to the home owned by Margaret Cantrell, widow of Melvin, and occupied by her and six children ranging in age from 1 to 16 years. Mrs. Cantrell was not at home and a daughter, Dora, was the oldest child there. During a stay of one to one and one-half hours Conway took 50 pictures and Eszterhas talked with the children. There was little evidence as to whether the reporter and photographer were invited into the house. Dora did not testify, but William David Cantrell who was 13 at the time of the event and 17 at trial time, testified that he saw the men coming across the field and that the door to the house was open. He said no one asked them in and no one asked them to get out. He also said the door was open because the men were coming. William said he assumed the men were from a newspaper, but didn't ask which one. Neither he nor the other children made any objection to being photographed.

The Sunday Magazine of The Cleveland Plain Dealer for August 4, 1968 carried as its lead feature a story entitled, "Legacy of the Silver Bridge." The story by Eszterhas contained a number of inaccuracies and implied that Mrs. Cantrell was present in her home

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when he returned to Point Pleasant in May. Five of Conway's pictures were printed with the story. In these pictures the Cantrell home appeared to be dirty and run down and the children were poorly clothed and untidy. The hopeless poverty of the family was emphasized in the feature. The reporter again used the condition of the Cantrell family to illustrate the consequences of the bridge disaster. In the more dramatic language of the article, "His death is a microcosm of the scar which will remain permanent and stark upon the spirit of the people here."

The assistant Sunday editor and assistant managing editor of the Plain Dealer testified that Eszterhas had a good reputation for accuracy of reporting at the time the 1968 article was published. In fact, he won three press awards for his coverage of the Silver Bridge collapse. Conway testified that the photographs fairly depicted the persons and scenes as he found them at the Cantrell residence. He did not suggest that the children make themselves or the home more tidy before the pictures were taken. Joseph Eszterhas did not testify. There was no evidence that Forest City Publishing Company had knowledge of any of the inaccuracies contained in the article.

The complaint alleged that the privacy of the plaintiffs had been violated by the intrusion of the newsman and photographer, for unreasonable publicity about their private lives and for falsely presenting their condition and making them objects of pity and ridicule. Mrs. Cantrell brought suit for herself and all of her children, but all plaintiffs except Mrs. Cantrell and one son, William David Cantrell, were dismissed by the Court. The complaint also charged the defendants with "malicious and defamatory libel." As developed by the evidence the intrusion complained of consisted of publication of an article which placed the Cantrell family in a bad light because of its inaccuracies and untruths. This is the way the matter was presented to the jury and there is no complaint on appeal concerning the jury charge. On appeal the appellees attempt to treat the entry of the two defendants into their home without an invitation when only children were present as the intrusion for which damages were justified. However, this was not the theory on which the case was tried in the District Court.

Our search for the controlling principles in effect today begins with New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a civil libel action. In that case, the Supreme Court enunciated a federal rule, required by the Constitution, which denies recovery to a public official for defamatory falsehood concerning his official acts unless he proves actual malice, that is, that a statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 279-280, 84 S.Ct. at 726. The Court reasoned that to permit virtually unlimited libel judgment against critics of official conduct for failure to determine the truth of every assertion made would lead to a self-censorship by news media that would be as stifling to the widespread dissemination of information as official censorship. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the same requirement for recovery was applied to a prosecution for criminal libel based on statements made about public officials. Furthermore, the rule of New York Times was extended to cover false statements about anything which might relate to an official's fitness for office, not just his official conduct.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), it was held that the term "public officials," for purposes of the New York Times rule, includes all government employees having, or appearing to have "substantial responsibility for or control over the conduct of governmental affairs." Id., at 85, 86 S.Ct. at 676. It had been contended that the rule applied only to libel actions by elected officials. The same requirement for recovery has been applied

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to civil libel actions by candidates for public office, Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971), and to cases where the plaintiff is a "public figure" rather than a public official. Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), recovery in a civil libel action for a defamatory falsehood contained in a broadcast was denied to a private citizen who was neither a "public official" nor a "public figure" where actual malice as defined in New York Times was not proven. The plurality opinion of three members of the Court...

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