Gibson v. Maloney

• Decision Date: 13 June 1972
• Docket Number: No. P--392,P--392
• Citation: 263 So.2d 632
• Parties: B. Roy GIBSON, Jr., and St. Joseph Telephone and Telegraph Company, a corporation under the laws of the State of Florida, Appellants, v. Joseph A. MALONEY, d/b/a The Apalachicola Times, Appellee.
• Court: Florida District Court of Appeals

Page 632

263 So.2d 632

B. Roy GIBSON, Jr., and St. Joseph Telephone and Telegraph Company, a corporation under the laws of the State of Florida, Appellants, v. Joseph A. MALONEY, d/b/a The Apalachicola Times, Appellee.

No. P--392.

District Court of Appeal of Florida, First District.

June 13, 1972.

Rehearing Denied July 10, 1972.

Larry G. Smith, of Isler, Welch, Bryant, Smith, Higby & Brown, Panama City, for appellants.

Truett & Watkins, Tallahassee, for appellee.

SPECTOR, Chief Judge.

Appellee's libel action against appellants has been considered by this court on an earlier occasion. Gibson v. Maloney, 214 So.2d 89.

In that case, we affirmed a libel judgment against appellants in the amount of $10,000 compensatory damages and $5,000 punitive damages. The Florida Supreme Court granted certiorari and reversed this court, holding that appellee made himself a 'public figure' by virtue of his newspaper publishing activities; and, therefore, under the holdings in Abram v. Odham, Fla., 89 So.2d 334; Jacova v. Southern Radio and Television Company, Fla., 83 So.2d 34; and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the statement that gave rise to this suit was fair comment on a public matter relating to an individual who had by choice made himself newsworthy and a part of the passing scene. See Gibson v. Maloney, 231 So.2d 823. So holding, the Supreme Court directed us to remand the cause for a new trial upon proper instruction.

Upon remand a second trial was held in January of 1971 which resulted in a mistrial when the jury was unable to agree on a verdict. In May 1971, a third trial was held which resulted in the judgment against both appellants for $5,000 compensatory damages and $20,000 punitive damages against the corporate appellant only.

The facts underlying this controversy are fully set forth in the two prior appellate decisions cited above, necessitating only a brief recitation of them in the opinion where required. Appellant Gibson is an officer of the corporate appellant. In 1965, while addressing the Port St. Joe Rotary Club, he made the following statement:

'Now, I shall take Apalachicola: Our exchange there in the year 1964 lost 74 telephones--only exchange that we have that showed any loss in telephones--and, in my opinion, this loss can be attributed largely to the local newspaper in Apalachicola and its publisher, who seems to take pleasure in berating and abusing any business interest in his community, including the larger taxpayers in his County; and, in my opinion, frequently, in referring to the Alfred I. duPont Estate and its various interests, not only vents his displeasure, venom, and, in some instances, outright falsehoods--this in spite of the fact that the interests of the Alfred I. duPont Estate are one of the largest taxpayers in the County.

'In closing, I shall simply say that I think we in Port St. Joe, and in all of the communities where the St. Joseph Telephone & Telegraph Company furnishes telephone services--with the exception of Apalachicola--are fortunate in having newspapers, in their communities, or near them, that welcome and invite business and industry. Business and industry do not go where they are unwanted wanted and vilified, but where they are wanted and invited.'

Thereafter, Gibson had the speech printed and mailed to some 6,000 telephone subscribers of the company and appellee brought this action, alleging that he was libeled by the appellants' conduct. The trials, judgments and appellate proceedings described above ensued.

The first point raised by appellant for reversal is that the trial court erred in refusing to charge the jury that the plaintiff was, as a matter of law, a public figure and that therefore plaintiff was entitled to recover only upon proof that Gibson made the defamatory statement complained of with actual malice.

The trial court gave the following instruction to the jury on the 'public figure' issue:

'There are some different rules which are applicable when the person who seeks to recover for defamation is what is known as a public figure. The public figure is not necessarily a public official, but may be anyone whose occupation or activities cause him to stand out from the general public, or one who engages in a public enterprise or course of conduct whereby he seeks to influence public opinion. Now, a public figure may not recover damages for defamatory falsehood relating to his conduct in connection with the activities which have made him a public figure, unless he proves that the statement or statements were made with actual malice; that is, with the knowledge that it was false or made with a reckless disregard of whether it was false or not. If you should find from the greater weight of the evidence that Mr. Maloney was, at the time of the events which have been involved here, a public figure, as I have defined it, he may recover only if you find that any defamatory statement made, was made by the defendants with actual malice against the plaintiff.'

The thrust of appellants' objection to the above instruction is that it left the question of whether the plaintiff was a public figure for the jury to decide when the Supreme Court had decided, as a matter of law, that the plaintiff was a 'public figure' in its opinion in the certiorari proceedings at 231 So.2d 824. The Supreme Court made the following statements regarding the status of the plaintiff:

'The record clearly shows that appellees acquired a small weekly newspaper in Apalachicola, Florida, and immediately started a news and editorial campaign against the Alfred I. duPont interests and its affiliates, St. Joe Paper Company and St. Joseph Telephone and Telegraph Company. Samples of the publications in the record demonstrate an attempt to harass and abuse the duPont interests, apparently for the purpose of convincing the public that these interests were some sort of evil influence in the community of Apalachicola and that it would therefore not be a good place to live and do business.

'There can be little doubt that Maloney entered the area and established the anti-duPont editorial policy of his Apalachicola Times, for the purpose of arousing public indignation against these interests, and by virtue of that Made himself a public figure engaged in a public enterprise and for the purpose, among other things, Of influencing public opinion. He became a part of the passing scene and therefore subject to fair comment. . . .'

Appellants contend that the Supreme Court's ruling on the 'public figure' question became the law of the case, and therefore it was error to permit that question to be decided by the jury on retrial. We agree. Under the instruction as given, the jury was not Required to find that plaintiff was a public figure. Indeed, as worded, the instruction enabled the jury to find that plaintiff was Not a public figure, a finding which if made would run counter to the holding of the Supreme Court.

Insofar as the public figure question is concerned, the same facts were adduced on retrial as were before the Supreme Court when it made the decision that plaintiff was a 'public figure'. Thus, the jury was erroneously empowered to supersede the Supreme Court's ruling with respect to that issue. At this juncture, it is necessary to recognize that class of persons coming within the 'public official' doctrine of the New York Times Co. v. Sullivan case, supra, has been broadened not only to include 'public figures' in subsequent cases but has more recently been even further broadened so as to include a private individual about whom a defamatory falsehood has been uttered in a newscast about the individual's involvement in an event of public or general interest. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296.

In light of the expanded class of persons which the United States Supreme Court has permitted to be inadvertently defamed in the absence of actual malice in the interest of the dominant policy of fostering an unfettered exchange of opinion concerning public officials, public figures and individual involvement in events of public interest, there can be no doubt that the plaintiff in the case at bar falls within the ambit of the Sullivan rule as expanded by its progeny.

Having concluded, as we do, that the plaintiff is a public figure and that the jury should have been so instructed, the criticality of the trial court's failure to do so becomes apparent. Since the instruction as worded required the jury to find actual malice as a prerequisite to liability only if it found that plaintiff was a public figure, the jury could have found that plaintiff was Not a public figure and therefore could have found for plaintiff Without finding that actual malice existed. When viewed in this perspective, the prejudice to appellants which resulted from the failure to give the defendant's requested instruction on the 'public figure' issue is inescapable. For this reason alone, the judgment reviewed herein must be reversed.

Further examination of the instruction as given to the jury indicates that the jury was not properly instructed as to the appropriate quantum of proof which is necessary to sustain a libel judgment in a public figure...