American Broadcasting-Paramount Theatres, Inc. v. Simpson

• Decision Date: 03 July 1962
• Docket Number: BROADCASTING--PARAMOUNT,No. 39566,No. 3,39566,3
• Citation: 126 S.E.2d 873,106 Ga.App. 230
• Parties: AMERICANTHEATRES, INC., et al. v. E. L. SIMPSON
• Court: Georgia Court of Appeals

Page 873

126 S.E.2d 873

106 Ga.App. 230

AMERICAN BROADCASTING--PARAMOUNT THEATRES, INC., et al. v. E. L. SIMPSON.

No. 39566.

Court of Appeals of Georgia, Division No. 3.

July 3, 1962.

Syllabus by the Court

1. Defamation by broadcast or 'defamacast' presents a factual situation unknown to the common law and is in a new category.

2. Count 1 of the petition sets out a cause of action on either of the following theories: (a) Plaintiff alleged sufficient extrinsic facts to make the defamation referrable to him. (b) Plaintiff was defamed as a member of a two-man group.

3. Count 2 sets out a cause of action on either of the above theories but did not set out a cause of action on the theory that plaintiff was defamed as a member of a sixteen-man group.

4. The special demurrers were properly overruled.

Plaintiff in this case sues for alleged defamation resulting from a telecast of 'The Untouchables.' ¹ Plaintiff seeks recovery from American Broadcasting-Paramount Theatres, Inc. and Crosley Broadcasting Company of Atlanta, which own and operate the ABC television network and Atlanta station WLW-A TV, respectively.

The basic facts alleged in plaintiff's two-count petition are the same. The particular episodes of 'The Untouchables' which form the basis of the action here were called 'The Big Train' and dealt with the transfer of Federal prisoner Alphonse Capone from the Atlanta Federal Penitentiary to Alcatraz on August 19, 1934. The ABC network presented and WLW-A TV broadcast 'The Big Train' in two parts on January 5, 1961 and January 12, 1961. It is alleged that 'The Untouchables' has 'since its inception, been calculated to convey, and has conveyed, to television viewers * * * the impression that the program is an authentic and factual portrayal of actual events * * *' and the use of newsman Walter Winchell as narrator helps to convey this impression. The particular production 'The Big Train' used the following true facts to convey the impression of historical accuracy, namely:

'(a) The transfer of Alphonse Capone and a number of Federal prisoners from the Federal Penitentiary in Atlanta, Georgia, to the Federal Penitentiary at Alcatraz in California was the basis for said production and this transfer did actually take place.

'(b) Said production used the date August 19, 1934 as the date on which the prison train left Atlanta for Alcatraz and this was the actual date of departure.

'(c) The production used the names of at least two persons who were actually associated with this transfer, Federal prisoner Alphonse Capone and Attorney General Homer Cummings.

'(d) The prisoner numbers worn by Capone in the production, 40886 at Atlanta and 85 at Alcatraz, were the numbers actually assigned to Federal prisoner Alphonse Capone.

'(e) The production showed authentic film clips of the Federal Penitentiary in Atlanta and the Federal Penitentiary at Alcatraz.

'(f) The train carrying the prisoners was actually transferred from San Francisco to Alcatraz by means of a barge as shown in the production.'

However, the same production also showed the following events which plaintiff alleges are false, namely:

'(a) An officer of the U. S. Bureau of Prisons was shown accepting money in the amount of $1,000 from Federal prisoner Alphonse Capone. Said production clearly indicates that the reason for Capone's giving this money to said officer was for the purpose of procuring the officer's aid in an attempt to escape from confinement and that said officer accepted the money for this purpose and agreed to render such aid.

'(b) The production showed that a fellow officer discovered that said officer had accepted a bribe and that such fellow officer threatened to inform the authorities unless he was 'cut in.' When said officer informed Federal prisoner Alphonse Capone that his fellow officer wanted a 'cut,' Capone instructed said officer to arrange a meeting outside of the Federal Penitentiary on the pretense of discussing 'a cut' and that Capone's men would be at the meeting place to 'take care' of the fellow officer. Said officer arranged this meeting with the fellow officer and said officer stood by and watched Capone's men as they shot the fellow officer causing his death.

'(c) Said officer was later shown passing to Capone, on the inside of a library book, a paper containing information as to the date and time of the scheduled departure of the prison train for Alcatraz. Said production clearly indicated that Capone intended to supply such information to his cohorts so that they could devise a scheme to free Capone from confinement by force and violence and that said officer had full knowledge of the purpose for which Capone wanted the information as to the time of departure of the prison train. Said production further portrayed said officer as giving Federal prisoner Alphonse Capone the key to his leg irons and as receiving instructions from Capone to call the doctor when Capone yelled on the pretense that a wound of Capone's needed medical attention but really for the purpose of having the doctor free Capone from his handcuffs so that he could escape from confinement. Said production portrayed the officer as complying with the instructions of Capone so that the doctor came and freed Capone from his manacles and Capone was shown completely free from his leg irons and handcuffs and walking around in the aisle of the railroad car in which he was being transported to Alcatraz. Said production clearly indicated that the reason that said officer gave to Capone the key to his leg irons and called the doctor as instructed was for the purpose of aiding Capone in his attempt to escape from confinement and that said officer had full knowledge of Capone's plan to escape and aided and abetted this Federal prisoner in his attempt to unlawfully escape from confinement.'

Plaintiff is now a retired officer of the U. S. Bureau of Prisons and was one of the guards who made the trip from Atlanta to Alcatraz.

The remaining allegations of each of the two counts will be presented where pertinent in the opinion.

Both defendants demurrer generally and specially to plaintiff's original petition. Only three special demurrers in this group were sustained and plaintiff amended. Defendants renewed both the general and special demurrers and now except to their overruling.

Wilson, Branch & Barwick, M. Cook Barwick, Alexander E. Wilson, III, Thomas S. Bentley, Atlanta, for plaintiff in error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Thomas E. Joiner, Atlanta, for defendant in error.

EBERHARDT, Judge.

Before dealing with the specific aspects of this case it would be well to comment on some peripheral issues. First, there is no question raised that there was a 'publication' here of the allegedly defamatory material or that the material is actually defamatory. See Code § 105-701. Secondly, defendant Crosley Broadcasting raises no issue with respect to Code § 105-712, as amended (Ga.L.1949, p. 1137) which provides: 'The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as part of a visual or sound radio broadcast, by one other than such owner, licensee, or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.' Although there are no decided cases in Georgia applying this provision, we think that the language 'visual or sound radio broadcasting station' is sufficiently broad to encompass television stations and their broadcasts. ² We find failure to exercise due care is sufficiently alleged (e. g., defendants 'failed to exercise the slightest degree of care to prevent the publication * * *.') ³

1. Perhaps the most perplexing problem is whether defamatory material shown on television should be classified as a libel, a slander or in some third category. Code § 105-701 provides that a libel is 'expressed in print, or writing, or pictures, or signs' while Code § 105-702 states that slander is 'oral defamation.' ⁴ It can be readily seen that there are some elements of both libel and slander in this sort of television defamation. Courts in some other jurisdictions, however, seem content to attempt the squeezing of the defamatory remarks into the well worn libel or slander pigeonholes. See, Leflar, 15 Ohio State L.J., supra, at 261-262.

Motion pictures involve an analogous situation. The only Georgia case involves a movie which did not name the plaintiff but which was widely advertised as being based on the book 'I Am a Fugitive From a Georgia Chain-Gang.' Warner Bros. Pictures, Inc. v. Stanley, 56 Ga.App. 85, 192 S.E. 300. The book specifically named plaintiff. There the court treated the action as being one of libel, as did a subsequent appeal of the same case. Stanley v. Warner Bros. Pictures, Inc., 64 Ga.App. 228, 12 S.E.2d 441.

The cases in other jurisdictions are uniformly in accord with this view but usually after a more extensive discussion of the issue. Kelly v. Loew's Inc., 76 F.Supp. 473 (D.Mass.) (picture, 'They Were Expendable' based on book which named plaintiff in foreword and appendix; partial consent license rejected); Merle v. Sociological Research Film Corp., 166 App.Div. 376, 152 N.Y.S. 829 (silent movie); Brown v. Paramount Publix Corp., 240 App.Div. 520, 270 N.Y.S. 544 and the celebrated 'Rasputin' case, Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L.R. 581, 99 ALR 864 (Ct.App.). See 42 Va.L.R. 63, 73 (1956).

In television and radio cases, the courts have often based classification of the defamatory matter on whether or not a prepared script was used; a libel being found where...