Akins v. Altus Newspapers, Inc.

• Decision Date: 04 October 1977
• Docket Number: No. 48489,48489
• Citation: 1977 OK 179,609 P.2d 1263
• Parties: 3 Media L. Rep. 1449 Bill AKINS, Appellee, v. ALTUS NEWSPAPERS, INC., an Oklahoma corporation dba Altus Times Democrat, Bob Gilmore, Sandra Hart and Craig Harris, Appellants.
• Court: Oklahoma Supreme Court

Page 1263

609 P.2d 1263

3 Media L. Rep. 1449

Bill AKINS, Appellee, v. ALTUS NEWSPAPERS, INC., an Oklahoma corporation dba Altus Times Democrat, Bob Gilmore, Sandra Hart and Craig Harris, Appellants.

No. 48489.

Supreme Court of Oklahoma.

Oct. 4, 1977.

As Modified on Denial of Rehearing May 12, 1980.

Appeal from the District Court of Jackson County; Loys Criswell, trial judge.

Action for libel based on a news item published in a newspaper. Jury verdict returned for plaintiff that awarded general and exemplary damages. Defendants appeal.

AFFIRMED.

Keith Myers, Hollis, for appellee.

Robert S. Baker, Baker, Baker & Wilson, Oklahoma City, Whiteside & Watt, Altus, for appellants.

LAVENDER, Vice Chief Justice:

Bill Akins (Akins), appellee, brought suit for libel against Altus Newspapers, Inc.; Bob Gilmore, its publisher; Sandra Hart, its editor; and Craig Harris, its reporter, appellants. The libel is based on a published news item. Trial was to a jury with a verdict returned for Akins that awarded $5,000 general damages and $15,000 exemplary damages. Defendants appeal.

The published news item read:

" 'INCIDENT' INVESTIGATED

"An investigation is beginning today by the District Attorney's office concerning an incident where an Altus police officer allegedly kidnapped a boy at gunpoint and then got in an altercation with a Jackson County Deputy.

"Paul Braun, district attorney, told The Altus Times-Democrat today that such an investigation is 'a policy matter with my office' whenever a complaint is lodged against a law officer.

"The district attorney declined to give the name of the family lodging the complaint.

"According to information received, two teenage youths got into a fight near Blair sometime last night with Altus police officer Bill Akins, a father of one of the boys, allegedly going to Blair and removing the other youth from a Blair home at gunpoint.

"The incident was apparently further complicated when relatives of the 'removed' youth called the Jackson County Sheriff's Department asking for help.

"Deputy Sheriff Bill Smith then reportedly found the auto, tried to stop it with siren and warning lights, and finally discharged his revolver in the air before the auto stopped.

"When the auto stopped, both Smith and Akins became embroiled in some type of altercation. Information received does not specify whether there was a fist fight.

"Neither Smith nor Akins could be contacted as of press time today concerning the incident."

Testimony at trial and detailed narratives of that evidence contained in the appeal briefs show an incident occurring the night of August 14, 1975, as found in broad outline in the published item. There were both large areas of agreement and deep disagreement on details of the involved incident presented to the jury by the trial witness. Much of that evidence is not material to this appeal.

Akins was a police officer. It is disputed if he was on duty that night at the time of, or after, the occurrence. Harris, the reporter, wrote the item the next day. It was published that same day after approval by the editor and the publisher. A retraction was sought and refused. After an outside investigation by the newspaper, another item was published August 28, some thirteen days later, that advised the use of the term "gunpoint" in the first article was erroneous.

Appellants argue (1) truth of the publication; (2) lack of actual malice; and (3) lack of damages.

Here, this appeal comes after jury verdict. In Wat Henry Pontiac v. Pitcock, Okl., 301 P.2d 203 (1956), this court's syllabus states:

"In a law action the verdict of the jury is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, this court will not disturb its verdict and judgment based thereon."

The scope of this review is limited. We need only to determine if "there is any competent evidence reasonably tending to support the verdict." The instructions, as directions in reference to the law of the case guiding the jury, ¹ are not an issue in this appeal.

Argument is made that the evidence only showed the truthfulness of the publication, for that affirmative defense is established when the publication is substantially true. Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1973) is cited. There the justification of every word in the defamatory matter was not required; rather, it was sufficient if the substance, the gist, the sting of the matter was true.

Even if Gomba, supra, is applied, we come to opposite conclusion here. The "sting" in this published news item is that Akins, a police officer, was alleged to have kidnapped or "removed" a youth from his home "at gunpoint." Appellants' second published article acknowledges the inaccuracy of the use of "gunpoint." Witness Lane, who was with Akins at the removal and whose grandson was with the Akins boy when the teenager fight occurred, testified of the youth voluntarily getting into the pickup upon his mother telling him to go ahead so the correct youth in the fight could be identified. This mother testified she saw no guns and Akins made no threat. Other evidence conflicted on the fact issue of the youth voluntarily leaving his home.

We do not weigh the evidence or the correctness of the finding of the facts by the jury. There was competent evidence that reasonably allowed the jury to find the gist of the article as to Akins was not so substantially true as to require a verdict for the appellants based on the affirmative defense of the truthfulness of the publication.

Briefs of the parties in this appeal agree the evidence does not sustain a finding the news item was published with knowledge it was false. A finding of actual malice must then be based on the publication being made with reckless disregard as to whether it was false or not. Again, the law of the case, as found in the instructions, is not the issue. On the law issue of actual malice, the jury was instructed, in part:

"(T)he Plaintiff may not recover damages from the Defendant unless he has proved by clear and convincing evidence that the publication of the article was actuated by actual malice, that is, with knowledge that it was false or that it was published with a reckless disregard of whether it was false or not.

"A reckless disregard means a conduct which is heedless and shows wanton indifference to consequences. To prove this the Plaintiff must produce sufficient evidence to permit the conclusion that the Defendants in fact entertained serious doubts as to the truth of its publication."

Appellants contend there was no evidence the defendant had serious doubts as to the truth of the publication. We do not agree with that interpretation of the directions guiding the jury. The jury was charged to determine if there was sufficient evidence of heedless conduct to show wanton indifference to consequence so as to permit a conclusion by the jury that the defendants entertained serious doubts as to the publication's truth.

Reporter Harris's testimony shows on the night of the incident, he was at the sheriff's office freelancing...