Gibson v. Kincaid, 20251

• Decision Date: 13 December 1966
• Docket Number: No. 20251,No. 1,20251,1
• Citation: 221 N.E.2d 834,140 Ind.App. 186
• Parties: Albert Barnes GIBSON, Appellant, v. Orval KINCAID, Individually, Charles Smith, Individually, Orval Kincaid and Charles Smith as representatives of the agents, members and employees of the local unions affiliated with the United Steelworkers of America, an unincorporated voluntary association of individuals, South Shore Broadcasting Company (Colby Broadcasting Corporation), Appellees
• Court: Indiana Appellate Court

Page 834

221 N.E.2d 834

140 Ind.App. 186

Albert Barnes GIBSON, Appellant, v. Orval KINCAID, Individually, Charles Smith, Individually Orval Kincaid and Charles Smith as representatives of the agents, members and employees of the local unions affiliated with the United Steelworkers of America, an unincorporated voluntary association of individuals, South Shore Broadcasting Company (Colby Broadcasting Corporation), Appellees.

No. 20251.

Appellate Court of Indiana, Division No. 1.

Dec. 13, 1966.

Rehearing Denied Jan. 13, 1967.

Max Cohen, Gary, for appellant.

M. Robert Sturman, Sturman, Sang & Carney, Kleiman, Cornfield & Feldman, Chicago, Ill., for appellee.

PRIME, Judge.

The action below was brought by appellant, who is a steelworker, member of the United Steel Workers of America, and part-time radio announcer, alleging defamation of character in one instance by appellees Kincaid and Smith via the radio transmitting facilities of appellee South Shore Broadcasting Company, now Colby Broadcasting Corporation, and in another by an unnamed newscaster over the same facilities.

Appellant's amended complaint proceeds on two theories, contained in three legal paragraphs. The trial court sustained demurrers to all three paragraphs submitted by appellees Kincaid and Smith individually, and jointly as representatives of the United Steel Workers of America, and by appellee South Shore Broadcasting Company. Appellant refused to plead over, and judgment was accordingly rendered in favor of appellees.

Appellant's assignment of errors presents his contention that the several demurrers should have been overruled.

The first two legal paragraphs of appellant-plaintiff's amended complaint are founded on the following words, resulting from conversation between appellees Kincaid and Smith, broadcast over the South Shore Broadcasting Company station during time purchased by the union.

'Charles Smith: We want to touch briefly on this matter of this man Hoot Gibson who as we understand it is a member of the National Rights to Work Committee is going to bring up an argument that he has going we consider fairly petty.

'Orval Kincaid: Yes, Charlie it is my understanding that this gentleman you mentioned has been attempting to sell himself to a number of anti-labor organizations throughout the country and in fact he told us himself in a local union meeting, Charlie, that he made some tours all over the country during the last steel strike and driving around in someone's big Cadillac and visiting all of the steel centers and then it is our understanding that when he came back he turned in his bill for his expense to the United States Steel Corporation and of course it is * * * he told us himself in a local union meeting the company refused to pay it and he couldn't understand why the company refused to pay it because he was working for them all the way around. That is a sample, Charlie, of some of the things we are confronted with. There has been a case filed, it is going through the regular channels. It has been appealed by him or his associates and it will be heard by the Board on Monday.'

Legal paragraph I proceeds against Kincaid and Smith individually, and jointly as representatives of the United Steel Workers of America, for uttering the words, and legal paragraph II against the South Shore Broadcasting Company for publishing same. An identical discussion may be made of both paragraphs in reaching a determination of the sufficiency of either to withstand demurrer, since they are grounded on the same issue: The defamatory nature, if any, of the words complained of. In our opinion, the dialogue between Kincaid and Smith was not defamatory per se. It imputed to appellant Gibson nothing more than labor agitation, which has been held to be not libelous per se. Wabash Railroad Co. v. Young (1904), 162 Ind. 102, 69 N.E. 1003, 4 L.R.A.,N.S., 1091; Montgomery Ward & Co. v. McGraw Hill Pub. Co., 146 F.2d 171 (7th Circ. 1944). The same rule would apply to an action based on slander.

If the subject matter of an alleged defamation is not defamatory per se, special damages must be alleged in the complaint. Patton v. Jacobs (1948), 118 Ind.App. 358, 78 N.E.2d 789, reh. den. 1948, trans. den. 1948. The doctrine therein enunciated related to allegedly libelous collection letters, but we see no reason to limit it to that factual situation. See also Rose v. Indianapolis Newspapers, 213 F.2d 227 (7th Circ. 1954).

The only averment of specific injury contained in legal paragraphs I and II is appellant Gibson's present inability to attain a high union office. No allegations appear that he suffered any impairment of present employment. Recovery should lie under this set of circumstances only for injury to one's present trade, business, or occupation. Damages would be a matter of pure speculation if the rule were otherwise. Thus, we are of the opinion that this portion of the complaint is within the limitation that words which are possibly injurious to some vague new future employment will not give rise to a cause of action under either branch of defamation.

With this conclusion in mind, we turn to appellant Gibson's theory that the mechanical reproduction and subsequent republication over appellee's radio station of the conversation gave it sufficient permanence to render the words actionable within the tort of libel. Assuming the validity of appellant's contention, the requirement still exists that allegations of special damages be contained in the complaint. If it is not valid and the remarks were instead slanderous, appellant Gibson, observing the well settled law of slander, concedes that his complaint is fatally defective without a finding that he has sufficiently pleaded special damages therein. As set out above, special damages were inadequately pleaded, and the words were not defamatory per se. The trial court was therefore justified in sustaining the demurrers to legal paragraphs I and II.

The third legal paragraph of appellant's amended complaint proceeds solely against appellee South Shore Broadcasting Company, springing from the following words uttered by a newscaster and conveyed over appellee's facilities:

'The executive board of the United Steelworkers Union (USW) upheld misconduct charges against a member of its Gary, Ind. Local 2697. The board met in closed session to hear the charges against A. B. Gibson that he 'slandered' several members of the local. (Our emphasis)

'The slander charge against him was upheld during a trial at the local level. Gibson appealed to the executive board which turned him down today.'

Appellant's contention is that the crime of slander was thereby imputed to him. This crime is defined by Burns' Indiana Statutes, § 10--3202.

'Criminal slander.--It shall be unlawful and a misdemeanor for any person to make any false, defamatory or slanderous statement regarding any other person, or to make or repeat any false statement regarding any person, which, if true, would subject such person to prosecution for a criminal offense, or to make or repeat any false statement regarding any person which injures or tends to injure such person either in name, character, general reputation or the pursuit and earning of a livelihood, Provided, That the person uttering such statements shall have had no good, sufficient and reasonable grounds for believing and considering the same to have been true, and on conviction shall be fined not less than twenty-five dollars ($25.00), nor more than five hundred dollars ($500.00), to which may be added imprisonment in the county jail or Indiana State Farm for any period not to exceed sixty (60) days.' (Our emphasis)

If appellant's theory is followed, the statutory 'any other person' would refer to the broadcast language 'several members of the local.' Assuming the falsity of the transmission, which we must for the purpose of determining the sufficiency of the complaint, we fail to see how 'several members of the local,' otherwise unnamed, would suffer criminal sanctions. While the false imputation of criminal activity clearly gives rise to a cause of action for defamation, the imputation must bear some reasonably close relation to the legislative definition of the crime. This paragraph of appellant's complaint fails to draw or suggest the requisite clarity. Similarly, the unidentified 'several members of the local' would hardly have their 'name, character, general reputation, or the pursuit and earning of a livelihood' endangered by appellant Gibson's allegedly slanderous remarks.

It is unnecessary to decide what radio transmission should be included in the libel category, or comment on appellant's argument that the member of a labor union should be allowed to bring an action in tort against that organization, since the complaint was clearly insufficient on the grounds previously discussed.

The Supreme Court of the United States has recently decided two important cases which have relevance to the case before us here. We think it apropos to consider the reasoning embraced by our highest court on the general proposition before us.

The case of Ashton v. Kentucky, 284 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469, decided May 16, 1966, arose from circumstances concerning the publication and distribution of certain pamphlets in Hazard, Kentucky, during a strike of coal miners in 1963. The pamphlets were critical of the Chief of Police, the County Sheriff and the owner of the local newspaper, accusing them of favoring the mine operators and of being strongly opposed to the miners. The opinion of the Court is quoted in part:

'The indictment charged 'the offense of criminal libel' committed 'by publishing a false and malicious publication which tends to degrade or injure' the three named persons. The trial court charged that 'criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done,...