Peoples Bank & Trust Co. v. Globe Intern., Civ. No. 91-3001.

• Decision Date: 21 February 1992
• Docket Number: Civ. No. 91-3001.
• Citation: 786 F. Supp. 791
• Parties: PEOPLES BANK & TRUST COMPANY OF MOUNTAIN HOME, Conservator of the Estate of Nellie Mitchell, an Aged Person, Plaintiff, v. GLOBE INTERNATIONAL, INC. d/b/a "Sun", Defendant.
• Court: U.S. District Court — Western District of Arkansas

786 F. Supp. 791

PEOPLES BANK & TRUST COMPANY OF MOUNTAIN HOME, Conservator of the Estate of Nellie Mitchell, an Aged Person, Plaintiff, v. GLOBE INTERNATIONAL, INC. d/b/a "Sun", Defendant.

Civ. No. 91-3001.

United States District Court, W.D. Arkansas, Harrison Division.

February 21, 1992.

Phillip H. McMath, McMath Law Firm, Little Rock, Ark., Roy E. Danuser, Mountain Home, Ark., for plaintiff.

Phillip S. Anderson, John E. Tull, Williams & Anderson, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

I. Statement of the Case

The plaintiff, Peoples Bank and Trust Company of Mountain Home, conservator of the estate of Nellie Mitchell, an aged person, by amended complaint filed September 24, 1991, brought defamation, invasion of privacy, and intentional infliction of emotional distress claims against the defendant, Globe International, Inc. d/b/a "Sun". Mrs. Mitchell is a 96-year-old resident of Mountain Home, Arkansas. She has operated a newsstand on the town square since 1963. Prior to that she delivered newspapers on a paper route, and according to the evidence, still makes deliveries to certain "downtown" business establishments and select customers.

It appears that Nellie, as she is known to almost everyone in this small Ozark Mountain town, is a town "landmark" or "treasure". She has cared for herself and raised a family as a single parent for all of these years on what must have been the meager earnings of a "paper girl." According to the evidence, the newspaper stand which she operates was once a short, dead end alley between two commercial buildings on the town square. She apparently gained permission to put a roof over the alley and this became her newsstand and sole source of livelihood, apparently providing life's necessities for her and her family to this day. When one of the lawyers asked Nellie during the course of her testimony whether she lived with her adult daughter, Betty, she quickly replied, "No, Betty lives with me."

The basis of the plaintiff's claims is an article and picture that appeared in the October 2, 1990, edition of the Sun. The October 2 edition published a photograph of the plaintiff in conjunction with a story entitled:

SPECIAL DELIVERY

World's oldest newspaper carrier, 101, quits because she's pregnant!

I guess walking all those miles kept me young

The "story" purports to be about a "papergal Audrey Wiles" in Stirling, Australia, who had been delivering papers for 94 years. Readers are told that Ms. Wiles became pregnant by "Will" a "reclusive millionaire" she met on her newspaper route. "I used to put Will's paper in the door when it rained, and one thing just kind of led to another."

In words that could certainly have described Nellie Mitchell, the article, which was in the form and style of a factual newspaper account, said:

She's become like a city landmark because nearly everyone at one time or another has seen her trudging down the road with a large stack of papers under her arm.

A photograph of Nellie, apparently "trudging down the road with a large stack of papers under her arm" is used in conjunction with the story. The picture used in the October 2 edition of the Sun had been used by the defendant in a reasonably factual and accurate article about Mrs. Mitchell published in another of the defendant's publications, the Examiner, in 1980.

The case was tried to a jury in Harrison, Arkansas, December 2 to December 4, 1991. The jury found that the defendant's conduct had invaded Mrs. Mitchell's privacy by placing her in a false light and had amounted to an intentional infliction of emotional distress. The jury awarded the plaintiff $650,000 in compensatory damages and $850,000 in punitive damages. The jury rendered a verdict in favor of the defendant on the defamation claim. Judgment was entered against the defendant on the jury verdict.

Pending before the court is defendant's motion for judgment as a matter of law or, alternatively, for remittitur of the jury award or, alternatively for new trial. Enforcement of the judgment has been stayed pursuant to Rule 62 pending the court's disposition of the defendant's motion. Fed. R.Civ.P. 62. The motion will be denied for the reasons set forth below.

II. Motion for Judgment as a Matter of Law

Because of recent amendments to Rule 50, what were formerly motions for judgment notwithstanding the verdict are now motions for judgment as a matter of law. Fed.R.Civ.P. 50. Both the rule itself and the notes regarding the 1991 amendments indicate that, although the terminology is different, the standard remains the same.

The Court of Appeals for the Eighth Circuit, the court whose decisions are binding on this one, has said in Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970), that motions for judgment notwithstanding the verdict should be sparingly granted because to do so deprives the parties of their right to a jury trial. The test which this court must follow in ruling on the motion for judgment notwithstanding the verdict is well stated in 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2524 (1971) as follows:

The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. In determining whether the evidence is sufficient, the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead, it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.

(Citing numerous cases, including cases from the Court of Appeals for the Eighth Circuit.)

The Court of Appeals for the Second Circuit, in Simblest v. Maynard, 427 F.2d 1 (2nd Cir.1970), stated the test that is to be applied in words that have been oft repeated:

Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.

The Court of Appeals for this circuit, in Brown v. Missouri Pacific R.R., 703 F.2d 1050, 1052 (8th Cir.1983) stated that the standard to be applied by both trial courts and courts of appeals is:

In ruling on a motion for judgment n.o.v., the courts (a) consider the evidence in the light most favorable to the plaintiffs as the verdict-winning parties, (b) assume that the jury resolved all conflicts of evidence in favor of the plaintiffs, (c) assume as true all facts which the plaintiffs evidence tended to prove, (d) give the plaintiffs the benefit of all favorable inferences which may reasonably be drawn from proved facts and (e) deny the motion if in light of the above reasonable jurors could differ as to the conclusions that could be drawn from the evidence.

Defendant argues it is entitled to judgment as a matter of law on both the intentional infliction of emotional distress claim (tort of outrage) and the invasion of privacy claim. With respect to the outrage claim, it is argued that there was no evidence of extreme and outrageous conduct or extreme emotional distress.

In Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991) the Arkansas Supreme Court stated as follows:

We have taken a very narrow view of claims for the tort of outrage, also known as the intentional infliction of emotional distress, ... and we continue to do so here.

* * * * * *

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), we stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct: conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. Furthermore, the emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

Ross, 307 Ark. at 70-71, 817 S.W.2d 418. The court further noted that establishing the tort requires clear-cut proof. Id. at 71, 817 S.W.2d 418.

Testimony at trial indicated that most of the defendant's articles are created "TOH" or "top of the head", in the words of John Vadar, editor of the Sun. That is, the authors, none of whom use their real name, are given a headline and a picture and then "make up" the accompanying stories. In fact, according to the evidence, the editor and perhaps others "make up" a series of headlines for stories to appear in each issue, and they are placed on a table. The "reporters" or perhaps, according to defendant's contentions at the trial, their "authors of fiction" select from this list the stories they wish to write.¹

John Vadar, indicated that, when the picture of Mrs. Mitchell was selected, it was assumed she was dead. The Sun's stated policy was to illustrate its articles with pictures of individuals from other countries who would not be damaged by the publication being circulated in the United States. The use of Mrs. Mitchell's picture was merely a "mistake."

Although defendant's contention during the trial was that Nellie Mitchell could not have been defamed because the publication contained only fiction readily recognized as such by reasonable readers, some of its "authors" testified that some of the articles were factual or at least based on fact, and it became obvious that even they could not tell the difference. Some of defendant's own witnesses could not agree which articles were purely fantasy and which were true or at least had some factual basis. For example, at trial...