George v. Blosser

• Court: West Virginia Supreme Court
• Writing for the Court: CAPLAN
• Citation: George v. Blosser, 204 S.E.2d 567, 157 W.Va. 811 (W. Va. 1974)
• Decision Date: 30 April 1974
• Docket Number: No. 13305,13305
• Parties: Joseph M. GEORGE v. John BLOSSER and West Virginia Newspaper Publishing Company, etc., et al.

Page 567

204 S.E.2d 567

157 W.Va. 811

Joseph M. GEORGE v. John BLOSSER and West Virginia Newspaper Publishing Company etc., et al.

No. 13305.

Supreme Court of Appeals of West Virginia.

April 30, 1974.

Syllabus by the Court

1. 'A movant is entitled to summary judgment where the facts established show a right to judgment with such clarity as to leave no room for controversy and show affirmatively that the adverse party cannot prevail under any circumstances.' Hanks v. Beckley Newspapers Corporation, 153 W.Va. 834, 172 S.E.2d 816 (1970).

2. 'The summary judgment proceeding provided by Rule 56 of the West Virginia Rules of Civil Procedure is not a substitute for a trial or a trial by a jury or by the court of an issue of fact, but is a determination that, as a matter of law, there is no issue of fact to be tried.' Point 1, Syllabus, Employers' Liability Assurance Corporation v. Hartford Accident and Indemnity Company, 151 W.Va. 1062, 158 S.E.2d 212 (1967).

James W. Brown, Jr., Morgantown, for appellant.

Herschel Rose, Duane C. Southern and Timothy J. Padden, Fairmont, Charles S. Armistead, Morgantown, for appellees.

CAPLAN, Chief Justice:

This is an appeal from a final judgment of The Circuit Court of Monongalia County in an action instituted by the plaintiff, Joseph M. George, against the defendants, John Blosser, a reporter for West Virginia Newspaper Publishing Company, West Virginia Newspaper Publishing Company, a corporation, the owner of the Sunday Dominion Post and the Morgantown Post and William A. Townes, publisher and general manager of said newspapers. The plaintiff instituted this action alleging that the defendants violated the provisions of Code, 1931, 55--7--2, commonly referred to as the insulting words statute. The plaintiff alleged therein that the violation was committed by the publication and circulation of two stories contained in the newspapers published by the defendant company.

In his complaint the plaintiff alleged that the aforesaid newspaper stories were written with malice and in such a manner that he was defamed and was caused to suffer great embarrassment all of which constituted the violation of the statute of which complaint was made. The plaintiff charged that 'the words therein from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace.'

Answering the complaint the defendants assert that the publications referred to were privileged; that the complaint failed to allege that the words published were false; that such words were not defamatory directly or by innuendo; that said words were true and were published with good motives and for justifiable ends; and that said words could not be construed as insults and did not tend to violence and breach of the peace. Basically, the defendants aver that they in no manner violated said statute and that they did not in any manner wrong the plaintiff.

Subsequent to the taking of a discovery deposition from the plaintiff, the defendants, upon notice properly given, filed a motion for summary judgment. This motion was considered upon the complaint and its exhibits, the answer and the deposition of the plaintiff who filed three affidavits in opposition to said motion. Upon consideration of the defendants' motion the court found that there was no genuine issue as to any material fact and that the defendants were entitled to a judgment as a matter of law. Upon the entry of a judgment for the defendants the plaintiff prosecuted this appeal.

Giving rise to the newspaper stories which form the basis of the plaintiff's action was the plight of a family named Dillard. The Dillards had been living in the town of Osage in Monongalia County when, in January, 1971, the house in which they resided was destroyed by fire. By reason thereof the Dillards were forced to move into an apartment which was wholly inadequate for their family which includes six children.

Mr. Dillard approached the plaintiff, who owned a house on Pennsylvania Avenue in the City of Morgantown and sought to rent that property. The plaintiff who had advertised this particular property for sale as a 'Handyman's Special' declined the offer to rent, declaring that he desired only to sell the house. He informed an attorney acting in behalf of the Dillards that he would sell the house for $4,500.00 cash payment or for $6,000.00, $1,000.00 of which was to be a down payment and $5,000.00 of which would be paid at the rate of $50.00 per month. Mr. Dillard obtained the $1,000.00, paid it to the plaintiff and received a deed to the property.

The newspaper stories of which complaint is made are included in the record and have been examined carefully on this appeal. They relate to the fate suffered by the Dillard family as a consequence of their Osage home having been destroyed by fire. The stories noted that the family encountered difficulty in their search for a home. When Mr. Dillard applied for a loan from the two area banks his requests were refused. These requests were made to finance the $6,000.00 for the purchase...