Brewer v. Memphis Pub. Co., Inc.
| Decision Date | 02 October 1980 |
| Docket Number | No. 77-2254,77-2254 |
| Citation | 626 F.2d 1238 |
| Parties | 6 Media L. Rep. 2025 John L. BREWER, Plaintiff-Appellee, v. MEMPHIS PUBLISHING COMPANY, INC., Defendant-Appellant. Anita W. BREWER, Plaintiff-Appellee, v. MEMPHIS PUBLISHING COMPANY, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank E. Everett, Jr., Vicksburg, Miss., Russell E. Leasure, Bruce Sanford, Cleveland, Ohio, for defendant-appellant.
John W. Prewitt, Vicksburg, Miss., Joe H. Daniel, John B. Clark, Jackson, Miss., for plaintiffs-appellees.
Appeals from the United States District Court for the Southern District of Mississippi.
Before GODBOLD, HILL and POLITZ, Circuit Judges.
The Commercial Appeal of Memphis, Tennessee included the following item in its "People" column on September 8, 1972:
FLICKERING FLAME: Back in 1957 Anita Wood, who came from Jackson, Tenn., to Memphis to sing on TV, was Elvis Presley's "No. 1 girl." This week as Elvis closed his month-long show at the Las Vegas Hilton, Miss Wood stopped by the hotel for what appeared to be a "reunion" of two old friends. Elvis recently filed for divorce from his wife of five years, Priscilla. Miss Wood is divorced from former Ole Miss football star Johnny Brewer.
A photograph with the caption "Anita Wood" appeared near the top of the column. On April 25, 1973 John Brewer contacted the newspaper by letter alleging that the article was false and defamatory. 1 On May 12, 1973 the newspaper published the following in its "People" column:
CORRECTION On September 8 of last year an item in this column reported that the former Anita Wood, now Mrs. John Brewer, had been in Las Vegas, Nev., a few days previously and had stopped by the Las Vegas Hilton to visit Elvis Presley, an old friend, who was entertaining there. That apparently was a case of mistaken identity, because Mrs. Brewer says she was not in Las Vegas on or anywhere near that date. The item also said she and former Ole Miss football star Johnny Brewer were divorced, which was incorrect. The Commercial Appeal regrets the error.
John and Anita Brewer brought separate defamation actions against Memphis Publishing Company in United States District Court for the Southern District of Mississippi on June 23, 1973 and September 6, 1973, respectively. Jurisdiction was based on diversity 2 and the suits were consolidated.
In 1974 the first jury found for the Brewers and awarded each plaintiff $400,000. The district judge found the amount of the verdicts unconscionable and granted a new trial on damages alone. The second jury awarded Anita Brewer $250,000 and John Brewer $150,000; they accepted a remittitur to $100,000 and $50,000, respectively. The defendant appealed and plaintiff cross-appealed. This court reversed and remanded, holding that the finding of liability in the first trial, held before the decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), was infected by several errors: (1) the question of whether plaintiffs were public figures or private persons was never directly addressed; (2) the jury was instructed that defendant might be liable without fault and that plaintiffs might recover without showing any injury because the article was libelous per se and because the law presumes that damages flow from written publication of such a defamation. In addition to remanding for proper fault and damage instructions, the court stated:
. . . The initial question is, of course, whether Anita Wood Brewer or John Brewer, or both, are public figures within the context of . . . Supreme Court cases. An important question relevant to this issue left open by the presently decided cases concerns the extent to which a person who has been a public figure in the past can retreat to private status and obtain the benefit of the lesser standard of proof required for damages for injury from libel.
Brewer v. Memphis Pub. Co., Inc., 538 F.2d 699, 703 (5th Cir. 1976).
The third trial also resulted in verdicts for the plaintiffs, $150,000 to Anita Brewer and $60,000 to John Brewer. On appeal defendant asserts: (1) under Mississippi law (a) the article did not defame either plaintiff; (b) if defamatory, the article was at most libel per quod requiring plaintiffs to plead and prove special damages with particularly which neither did; and (c) liability was permitted for simple negligence while state law requires proof of actual malice for libel liability; and (2) the first amendment (a) requires the trial court to find that both plaintiffs were public figures; and (b) dictates a finding that the evidence did not prove "actual malice" with convincing clarity. 3
Ultimately our holding in this case is based upon federal constitutional issues. We reach those constitutional issues after first attempting to decide whether we can dispose of the appeal under state law. We should first seek such a resolution. 4 Here we are required to predict how the Mississippi Supreme Court would have decided several issues. Our predictions are that as to each state issue the Mississippi Supreme Court would conclude that appellees, and each of them had valid claims. While this excursion into Mississippi law is a necessary prelude to our reaching the constitutional issues, we find it not determinative of the rights and liabilities of the parties. Of course, in the further development of the law of libel in the state of Mississippi its Supreme Court may decide quite differently from the predictions we make here.
After careful consideration of defendant's arguments, we conclude, not without some difficulty, 5 that both plaintiffs would be permitted to recover some amount 6 in damages from the defendant under Mississippi libel law. 7
Appellant argues that the article did not defame either plaintiff. Anita Brewer claimed in her complaint that by this article the defendant intended to convey that she was divorced and "openly involved in a relationship with a married man." John Brewer claimed that the defendant intended to convey that he was divorced from his present wife and that his wife was openly involved in a relationship with a married man. Both asserted in their complaints that readers so understood the words of the article and that their reputations were thereby injured and that they suffered severe "shame, embarrassment, humiliation, mental anguish and emotional distress and strain" because of the article. Essentially, then, plaintiffs claim the article defamed them both by stating that they were divorced, defamed John by conveying that he had been cuckolded, and defamed Anita by conveying that she was involved in an immoral or illegal relationship.
Under Mississippi common law any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community is actionable per se.
Henry v. Collins, 253 Miss. 34, 158 So.2d 28 (1963), rev'd on other grounds, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965); Natchez Times Pub. Co. v. Dunigan, 221 Miss. 320, 72 So.2d 681 (1954), Conroy v. Breland, 185 Miss. 787, 189 So. 814 (1939). We discuss the per se aspect of this definition below and view the remainder of the quotation as comprising Mississippi's definition of libel. Appellant urges that defamation in Mississippi is limited to attacks on integrity and moral character (plus business reputation), citing a passage to that effect in Manasco v. Walley, 216 Miss. 614, 63 So.2d 91 (1953), and argues that a statement that a person is divorced or is cuckolded does not reflect on integrity or moral character and thus is not defamatory. Manasco, however, did not involve common law defamation but a statute requiring a newspaper to print the reply of a candidate for public office when it had earlier printed a story that reflected on the candidate's honesty, integrity, or moral character. According to the Supreme Court of Mississippi, the legislature intended to limit the statute
to cases in which the editorial comment or the news story is defamatory, and defamatory in a particular manner, that is to say, where the editorial or news story reflects upon the honesty or integrity or moral character of the candidate. (emphasis added)
Id. at 627, 63 So.2d at 95. Both Natchez and Henry, supra were decided after Manasco and neither adopts the statute's limitation to particular sorts of defamation.
While the parties cite no Mississippi case involving statements that a person is divorced or is a cuckold, and we have found none, such statements appear to fit within the state's definition of defamation, i. e., such statements may well injure one's reputation and thereby expose him to public contempt or ridicule, degrade him in society, or lessen him in public esteem, while not necessarily reflecting on his integrity or moral character. We also note that other courts have sustained defamation actions based on statements about marital discord. See, e. g., Gariepy v. Pearson, 207 F.2d 15 (D.C.Cir.1953), Thackrey v. Patterson, 157 F.2d 614 (D.C.Cir.1946). See generally Annot., 9 A.L.R. 1128 (1934).
Appellant asserts that John Brewer may not base his defamation claim on what was said about Anita Brewer. It is said that a general principle of libel law is that only the person defamed, the person to whom the article refers, has a cause of action; his or her relatives do not. 8 It is also true, however, that certain defamations of one person also defame another who may not be named. 9 In our view this is such a defamation. John Brewer did not assert his wife's claim but, instead, claimed that this statement about her also defamed him.
Clearly, the defendant could not escape liability for printing such a statement by including the additional defamatory statement that John Brewer was divorced; such a rule of law would not only be facially inequitable...
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