Cole v. Westinghouse Broadcasting Co., Inc.
| Citation | 386 Mass. 303,435 N.E.2d 1021 |
| Parties | , 8 Media L. Rep. 1828 John D. COLE, III v. WESTINGHOUSE BROADCASTING COMPANY, INC. et al. 1 |
| Decision Date | 20 May 1982 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Charles R. Parrott, Boston (Mary Lee Jacobs, Boston, with him), for defendants.
Alexander H. Pratt, Jr., and Harvey Weiner, Boston, for plaintiff.
Before HENNESSEY, C. J., and LIACOS, NOLAN and O'CONNOR, JJ.
The plaintiff, John D. Cole, III (Cole), brought this action in the Superior Court for alleged defamation by Westinghouse Broadcasting Company, Inc. (Westinghouse), WBZ-TV, Seymour Yanoff, individually and as general manager of WBZ-TV, Amy Konowitz, individually and as official spokesperson for WBZ-TV and Alan Frank, individually and as program manager of WBZ-TV. At the close of the plaintiff's case, the trial judge allowed motions by Frank and Konowitz for directed verdicts, but denied similar motions by Westinghouse and Yanoff. 2 Westinghouse and Yanoff renewed their motions for directed verdicts at the conclusion of the trial and those motions were denied. In response to a special question, the jury found Cole to be a public figure. They returned a verdict in Cole's favor and assessed damages of $100,000. Westinghouse and Yanoff appealed from the judgment on the jury verdict and the denial of their motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. Cole cross-appealed from the judgment entered in favor of Konowitz. We allowed the defendants' application for direct appellate review. We reverse the judgment for Cole.
The evidence may be summarized as follows. Cole began his employment with WBZ-TV in 1969 as a staff reporter. From July, 1971, to July, 1974, he was employed under a written contract as a staff news announcer. Following the expiration of Cole's employment contract in July, 1974, he continued employment with WBZ-TV as a general assignment reporter covered by a collective bargaining agreement. Yanoff became the general manager of WBZ-TV in August, 1973. One William Aber was hired as WBZ-TV news director in October, 1974.
During the winter of 1974-1975, WBZ-TV broadcast a series of reports which Cole had prepared concerning the political fundraising of the mayor of Boston, Kevin White, and his use of the Parkman House. On March 13, 1975, Cole covered a meeting of the Boston Finance Commission (commission) at which the commission voted to investigate Mayor White's fundraising activities. Cole's report was broadcast on the evening news. Aber observed Cole's report and also viewed a broadcast by another local television station which aired a film of Mayor White commenting on the vote of the commission. Cole's report did not include the Mayor's comment although Cole had been told by a WBZ-TV assistant news director that the film was available for use. Yanoff testified at trial that Aber met with him on March 13, 1975, and informed him of the events of the day. The following day Yanoff reviewed written statements prepared by Aber and three members of the news staff concerning the broadcast. Aber recommended Cole's termination on the grounds of "misconduct and incompetence" and detailed the incident concerning the omission of Mayor White's comments which led to this recommendation. Cole was suspended and terminated about one week later.
Yanoff prepared an official statement to be released when the television station received inquiries relating to Cole's termination. The release stated that Cole had been terminated "for reasons of misconduct and insubordination." Yanoff testified at trial that he gave the statement to one Alex Dusek and directed Dusek to give it to Amy Konowitz to use in responding to inquiries from the media.
On March 21, 1975, an article appeared in the Boston Globe newspaper, by Percy Shain, stating that Cole had been fired for "misconduct and insubordination." The article mentioned the incident involving the commission and went on to say that a WBZ-TV spokesman said "unofficially, that Cole's firing was not a direct result of the newscast, but was a case of 'sloppy and irresponsible' reporting." Shain testified at trial that, prior to writing the article, he had called Konowitz and inquired about Cole's suspension. Konowitz read him the official release. Shain then asked her for more information and she said "unofficially" that it was a case of "sloppy and irresponsible reporting." This is one of the statements which Cole claims to be defamatory.
About the same time, David O'Brian, a columnist for the Boston Phoenix newspaper, telephoned WBZ-TV, and spoke with Konowitz. He testified that he asked her why Cole had been terminated and she read to him the WBZ-TV's official statement. He then stated to her that he had heard that Cole had been fired because of the way he had handled the report on the Boston Finance Commission's press conference. Konowitz replied: O'Brian wrote a column published in the Boston Phoenix newspaper quoting this statement. Cole alleged that this statement was defamatory.
1. Prematurity of appeal. Before reaching the merits of this appeal, we shall discuss two preliminary issues raised by the plaintiff. The plaintiff argues that this appeal should be dismissed because of the defendants' failure properly to file notices of appeal. The plaintiff filed a complaint against Westinghouse, WBZ-TV, Yanoff, Konowitz, and Frank. The judge allowed motions for directed verdicts as to Konowitz and Frank. On October 31, 1980, the jury returned a verdict for the plaintiff, on which judgment was entered on November 3, 1980. Westinghouse and Yanoff timely moved for judgments notwithstanding the verdict or, in the alternative, for a new trial. The judge denied the motions on December 23, 1980. On January 21, 1981, Yanoff and Westinghouse filed notices of appeal from the judgment on the jury verdict and the denial of their motions. The plaintiff filed a cross-appeal on January 30, 1981, from the judgment entered in favor of Konowitz. On March 3, 1981, the parties filed a stipulation of dismissal as to WBZ-TV. The plaintiff argues that since judgment was not entered for WBZ-TV until March 6, 1981, the case was not ripe for appeal until that time and the defendants' appeals filed on January 21, 1981, were premature and ineffective.
WBZ-TV is owned and operated by Westinghouse. Although WBZ-TV was designated a separate entity in the complaint, it is clear that the parties treated WBZ-TV and Westinghouse as one and the same throughout the litigation. Cole did not ask for a judgment against WBZ-TV and filed his notice of cross-appeal from the same judgment from which the defendants appealed in January, 1981. The plaintiff has not been prejudiced by the prematurity, if any, of the notice of appeal and we will not avoid a decision on the merits on the basis of such a technicality. Hutchinson v. Hutchinson, 6 Mass.App.Ct. 705, 707, 383 N.E.2d 82 (1978), and cases cited.
2. Specificity of motions for directed verdicts. The plaintiff next contends that the issue whether the statements alleged to be defamatory constitute fact or opinion has not been properly preserved for review. The plaintiff argues that the issue is not before us because the defendants' motions for directed verdicts did not explicitly rely on the ground that the phrases were nonactionable opinions, but instead asserted that there was no evidence to warrant a jury finding of actual malice on the part of the defendants. We find that the issue is properly before us for several reasons. The defendants, in their oral argument on their motion to dismiss at the outset of the trial, argued at length that the action should be dismissed because the statements were nonactionable opinions. The judge declined to rule on the motion, stating essentially that he wanted to hear evidence concerning the circumstances in which the statements were made before determining their nature. At the directed verdict stage, while the defendants did not expressly raise this issue, they based their motions for a directed verdict on the lack of evidence which would warrant a finding of actual malice on the part of the defendants. Finally, in their motions for judgment notwithstanding the verdict the defendants expressly raised the opinion versus fact issue. While the defendants perhaps should have explicitly included the opinion versus fact distinction in their motions for directed verdicts, their failure to do so does not bar our review of that issue now. The judge had adequate notice of this issue which was fully presented at the pretrial stage and again at the post-trial stage. In addition, the issue whether sufficient evidence of a defendant's required state of mind exists is closely connected to the issue whether the statement can be characterized as an opinion or a fact. Finally, in a case of this type where constitutional issues are presented, our role as a reviewing court is necessarily broad. New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964). We now discuss the merits.
Because the plaintiff is a public figure, this libel action is governed by the constitutional principles first set forth in New York Times Co. v. Sullivan, supra. Our role in reviewing a libel case of this kind requires careful appellate review of the facts. We must (citations omitted). Id. at 285, 84 S.Ct. at 728. After undertaking such a review in this case we...
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