England v. Daily Gazette Co., 10930

• Decision Date: 03 July 1958
• Docket Number: No. 10930,10930
• Citation: 104 S.E.2d 306,143 W.Va. 700
• Court: West Virginia Supreme Court
• Parties: J. Paul ENGLAND v. The DAILY GAZETTE COMPANY.

Page 306

104 S.E.2d 306

143 W.Va. 700

J. Paul ENGLAND v. The DAILY GAZETTE COMPANY.

No. 10930.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1958.

Decided July 3, 1958.

Syllabus by the Court.

1. In an action of libel based on a publication qualifiedly privileged, an abuse of the privilege destroys the protective characteristics of the privilege.

2. 'The existence or nonexistence of a qualifiedly privileged occasion, and whether the privilege has been exceeded, in the absence of a controversy as to facts, are questions of law for the court.' Point 3, Syllabus, Swearingen v. Parkersburg Sentinel Co., 125 W.Va. 731 .

3. In an action of libel, based on a privileged publication, where the privilege has been abused, and the question of the existence of malice, at the instance of the plaintiff has been submitted to the jury, malice may be by the jury inferred from violent or calumnious language contained in the publication.

4. In the determination of whether malice exists, in an action of libel, a publication made a short time subsequent to the publication declared on, referring to and reaffirming, in effect, the charges complained of, may be admitted in evidence for the purpose of aiding in determining whether malice existed.

5. In an action of libel the defendant may justify the language used by proving the truth of the charges made, and that the publication was made with good motives and for justifiable ends.

6. Where in an action of libel the truth of the matters charged to be libelous is at issue, the truth of such charges is a question of fact for jury determination.

Charles G. Peters, Robert G. Kelly, Charleston, Frederick T. Kingdon, Mullens, for plaintiff in error.

Bailey, Worrell & Bailey, R. D. Bailey, James C. Lyons, Pineville, for defendant in error.

GIVEN, Judge.

In this action of libel, instituted by J. Paul England, in the Circuit Court of Wyoming County, against the Daily Gazette Company, a verdict in favor of plaintiff for $5,000 was returned, and a judgment was entered thereon against defendant. The publication containing the words alleged to be libelous was admittedly published by defendant in an editorial appearing in the Charleston Gazette, a newspaper of general circulation throughout West Virginia, on the fifth day of August, 1955. An opinion of this Court in the case of Bower v. The Daily Gazette Company, involving alleged libelous language contained in the same editorial is reported in 104 S.E.2d 317. The editorial reads: 'Using State Insurance to Buy Off Legislators Not in Public Interest.

'Morality in government was a major issue of the 52nd Legislature, and it had the salutary effect of outlawing liquor accounts as political plums for officeholders.

'Now it's time the Legislature gives state insurance a long, searching study in view of the growing trend toward paying off political debts with fire insurance premiums.

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'The Recipients of this lush piece of state business deny that they are parties to any wrongdoing. They argue, either out of stupidity or calloused disregard for their public trust, that their dealings with the state are right, proper and aboveboard.

'Perhaps, as they say, their dealings are outwardly legitimate. They get a premium as insurance agents, and the state gets insurance coverage from a reputable company. All would be well if the deal ended there, but by unfortunate circumstance it doesn't end in so innocent and blithe a manner.

'There is a third factor to consider that weighs heavily against these agents. They, as members of the Legislature, hold an allegiance to their constituents which precludes their doing business of any kind with the state while they are in office.

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'If They Could Serve their own cause and that of the electorate with equal fervor while holding state insurance contracts, all well and good. But they can't! Their past actions in the Legislature reveal them as peons of the politicians and lackeys of the administration.

'We've watched them at work, and they follow the administration line with dutiful submission. They are the Governor's marionettes on the Senate and House floors, and they jump when ordered to--like Kukla and Ollie of television fame.

'It's easy to see that they've sold their votes--sold out their constituents--for a price. They're more dedicated to their own creature comforts than to the comforts and welfare of the folks back home.

'So that you'll know these legislators better, we'll name them. They, and the amounts of fire insurance premiums awarded them, follow:

'Sen. Jack A. Nuckols, Beckley, $14,500.42; Sen. Don K. Marchand, Morgantown, $6,092.25; Del. Joe Lilly, Oak Hill, $4,307.50; Del. J. Paul England, Pineville, $2,513.92, and Del. Paul Bower, Pineville, $892.50.

'This Business of rewarding the faithful with public funds doesn't end in the Legislature. Kanawha County Political Boss Homer Hanna, Ed Stumpp, Northern Panhandle politician, Wilber F. Lewis, Huntington politician-insurance agent, and others are paid off for past favors.

'A legislative interim committee investigated the state's insurance policies last year, but took no positive corrective action. We urge that a new look be given the practice, possibly with the view of demanding competitive bids on insurance (contrary to popular opinion, all fire insurance rates are not the same) or passing legislation compelling self-insurance of state property.

'It's quite obvious that the citizens of West Virginia are being exploited by this amoral practice of doling out insurance to the politically faithful. The public's right of legislative representation is being invaded. The public's insurance protection is perhaps more costly than necessary.

'A change in policy relative to the awarding of insurance is vitally needed, and if the executive department refuses to effect changes voluntarily, the Legislature should step in and make them by statute.'

The words contained in the editorial declared on are: 'It's easy to see that they've sold their votes--sold out their constituents--for a price. They're more dedicated to their own creature comforts than to the comforts and welfare of the folks back home.

'So that you'll know these legislators better, we'll name them. They, and the amounts of Fire insurance premiums awarded them, follow: Sen. Jack A. Nuckols, Beckley, $14,500.42; Sen. Don. K. Marchand, Morgantown, $6,092.25; Del. Joe Lilly, Oak Hill, $4,307.50; Del. J. Paul England, Pineville, $2,513.92, and Del. Paul Bower, Pineville, $892.50'.

The defendant entered its plea of not guilty, and filed its special plea and amended special plea, wherein it alleged, in effect, that the publication declared on was published on an occasion privileged, that the matters stated in the publication were true, and that the comment thereon was fair and reasonable, contending that it was the 'duty, right and privilege of defendant to publish and comment upon through the news, editorial and political columns of the Charleston Gazette, the acts and conduct of public office holders, and in particular it was and is the duty, right and privilege of defendant to publish and comment upon, through the news, editorial and political columns of the Charleston Gazette, the acts and conduct of members of the State Legislature, which affect the welfare, interest and rights of the subscribers to and readers of said newspaper and of the citizens and taxpayers of said State'. Defendant further alleges, in its pleas, that before the publication of the editorial sued on it 'carefully investigated the facts aforesaid and made an honest and diligent effort to ascertain the truth in respect thereto and to truthfully report such facts'. Defendant especially denies that the matters complained of were published 'falsely or wickedly or maliciously' and further denies that the matters complained of 'contained any false, scandalous, libelous, defamatory or malicious words of and concerning the plaintiff'. The full editorial is set out in the pleas.

On the day before the publication of the editorial sued on there was published in the Charleston Gazette a news story relating to the alloting of insurance covering State of West Virginia property, against loss by fire, wherein it was said that the insurance 'pie was cut in 91 assorted shapes and sizes', naming a large number of individuals and firms to whom insurance was allotted. In the newspaper story it was stated that 'J. Paul England, Wyoming County, member of the House of Delegates * * * received insurance worth $2,513.92 in premiums' and that 'Del. Paul Bower of Wyoming County, operator of the Bower Insurance Agency, got $892.50 in premiums on $150,000 worth of coverage'.

This action was instituted on the eighth day of August, 1955. On the day following the defendant published in the Charleston Gazette an editorial wherein the institution of the action was mentioned and the voting record of plaintiff, as a member of the Legislature, was discussed, and the oath of office required of a member of the Legislature was set out. The editorial stated: '* * * England's complaint, as reported by the Associated Press, was that a Gazette editorial of last Friday said England 'sold out' to the state administration for $2,500 worth of state insurance.

'England said the editorial statement was 'an unprovoked lie'.

'The Gazette, however, is not backing down from any of the statements that appeared in last Friday's lead editorial.

'We said then, and we repeat now * * * a member of the Legislature who accepts profitable patronage from the administration, insurance or otherwise, is joining in an arrangement that is morally wrong.

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'A Legislator cannot be free to vote only in the interest of his constituents when he knows that upon his favor with the administration depends some profits in his private business * * * in England's case $2,500 worth of insurance premiums.'

Evidence before the...