Gobin v. Globe Pub. Co.

• Decision Date: 25 January 1975
• Docket Number: No. 47574,47574
• Citation: 216 Kan. 223,531 P.2d 76
• Parties: Gary Dean GOBIN, Appellant, v. GLOBE PUBLISHING COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 76

531 P.2d 76

216 Kan. 223

Gary Dean GOBIN, Appellant, v. GLOBE PUBLISHING COMPANY, Appellee.

No. 47574.

Supreme Court of Kansas.

Jan. 25, 1975.

Syllabus by the Court

1. In reporting judicial proceedings a publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure is liable in damages for actual injury to the individual when the assertion of the falsehood is the result of the publisher's or broadcaster's negligence and when the substance of the assertion makes a substantial danger to reputation apparent. The standard to be applied in determining such negligence is the conduct of the reasonably careful publisher or broadcaster in the community or in similar communities under the existing circumstances.

2. A private defamation plaintiff may not recover presumed or punitive damages when the liability for the defamation is based solely on negligence.

3. In an action for damages for libel wherein summary judgment was entered for the publisher, standards of liability for defamation in publishing judicial proceedings are declared; it is further held that since plaintiff was neither a public official nor public figure, rendition of summary judgment was premature and remand is ordered to determine the issue of the publisher's negligence.

Donald E. Shultz of Shultz & Shultz, Chartered, of Dodge City, argued the cause, and Robert M. Baker, Ashland, was with him on the brief for appellant.

Harry A. Waite of Minner & Waite, Dodge City, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an action for damages for libel. The trial court entered summary judgment for the publisher and the plaintiff appeals.

The plaintiff, Gary Dean Gobin, on June 11, 1973, filed his petition alleging that the defendant, Globe Publishing Company, on or about July 6, 1972, published in its newspaper, The Dodge City Daily Globe, an article and certain accompanying photographs and captions which were false, libelous and defamatory to plaintiff. The petition requested $400,000 actual damages for loss of an automobile repair business and $100,000 exemplary damages for publishing the article without adequate investigation of the facts in reckless or malicious disregard of plaintiff's rights and reputation. Attached to plaintiff's petition was the publication in question, which stated:

'ANIMAL CRUELTY CASE REPORTED TO COUNTY ATTNY.

'A case of pig starvation has been discovered in Dodge City, county attorney John Fierro reported Friday.

'Gary Gobin, Hollywood Addn. pled guilty in Ford County Court July 6 to cruelty to animals.

'Anyone who knows of a case of animal cruelty in the city or county is asked to report it immediately to the county attorney's office, Fierro said.

'Probate Judge Camilla Haviland has ordered the Ford County extension agent to check the condition of the pigs. Gobin will be fined pending this report.

'The case was discovered after Pauline Unruh, animal welfare director, received a complaint about starving hogs. She found 40 head of pigs in neglected condition, and signed a complaint.

'The county court has instructed Mrs. Unruh to make frequent visits to check the condition of Gobin's pig pen Fierro said.'

The three accompanying pictures portrayed hogs in an emaciated condition above these captions:

'STARVED PIG-This animal was found still alive when the picture was taken. It had to be shot by a sheriff's deputy.

'PIGS FIGHT FOR GRASS-The pigs here fight over a handful of grass thrown to them, showing their starved condition.

'NEGLECTED ANIMALS-These are seen in neglected condition, searching for food in the dirt.'

Defendant Globe filed an answer admitting publication of the material complained of but asserting the news items were within its qualified privilege to publish matter involving open violations of law which justify police interference and matters regarding the commission of crime. Globe denied the publication was false or that it had acted maliciously.

Thereafter Globe moved for summary judgment on the basis of its qualified privilege in making the publication. At the hearing upon this motion the parties filed a written stipulation which provided:

'1. The Globe Publishing Company is a Kansas corporation which publishes the Dodge City Daily Globe at Dodge City, Kansas.

'2. The Globe Publishing Company published in the July 8, 1972, issue of the Dodge City Daily Globe, an article captioned 'Animal Cruelty Case Reported to County Attorney'. A true copy of such article is attached hereto, marked 'Exhibit A' and made a part hereof by reference.

'3. The article was written by Susan E. Shaw, at that time a report(er) for the Dodge City Daily Globe. The statements made in the article are based upon information provided to Susan E. Shaw by John E. Fierro, the county attorney of Ford County, Kansas.

'4. At the time the article was published, Gary Dean Gobin was not acquainted with persons working at the Dodge City Daily Globe who had anything to do with the composition and publication of the article, and no one at the Globe was personally acquainted with Gary Dean Gobin.

'5. There are no facts or circumstances known to either party involved in this action as to ill-will, between Gary Dean Gobin and the officers and employees of the Globe Publishing Company, except that Gary Dean Gobin now resents the publication of the article described above.

'The parties agree that the foregoing are recitals of facts to be considered by the court in ruling upon plaintiff's motion for summary judgment.'

The parties further stipulated orally that the reporter, Susan Shaw, would testify in accord with a letter written by her December 2, 1973, to Globe's attorney in which she stated her recollection of events occurring in connection with the publication. This letter stated:

'The first thing I remember was that John Drake (then editor of the Globe) told me that the county attorney had some information for a news item. I can't remember whether Mr. Drake mentioned starving hogs, but he did tell me to go to the county attorney's office and get this news that he had.

'I went to the county attorney's office and John Fierro (the county attorney) gave me pictures of the hogs and information on the case. I must have gone to the county attorney's office on Friday, July 7, because the story says that 'Fierro reported (the case) Friday,' and because the hearing was Thursday, July 6.

'I brought the information and pictures back to the newspaper office that same day (Friday) and gave the pictures to Mr. Drake. I typed up the news item on the case, using the information as I had understood it from Mr. Fierro. I then turned the story in for publication. I don't remember having anything more to do with it after that. The story appeared in the paper the next day, which was Saturday, July 8.

'I do not mean to imply that the county attorney necessarily gave me incorrect information. I don't know what happened. Evidently I, or the county attorney, or someone made an error somewhere along the line. I am very sorry this has happened. I certainly did not mean to cause trouble for Mr. Gobin, the newspaper, the county attorney or anyone. It is true that I did not know Mr. Gobin.'

The parties also stipulated orally that Globe's general manager would testify none of Globe's officers or employees who had anything to do with the composition or publication of the starving hogs article knew plaintiff or bore any ill will or malice toward him and there was no express intention of anyone connected with Globe to harm plaintiff. The parties agreed the trial court had all the facts before it necessary for decision of the issue of liability as raised in the motion for summary judgment.

Although not explicitly reflected in the foregoing recital, the fact concededly is that plaintiff Gobin did not plead guilty to a charge of cruelty to animals as reported in the news article.

The trial court ruled there were no unresolved issues of fact in the case and it sustained Globe's motion for summary judgment.

Appellant Gobin contends the trial court erred in concluding the publication was privileged and not actionable, that any fair, impartial and accurate, and further the court erred in not making a distinction between libels involving public officials and private citizens as prescribed by recent federal authority.

By way of preliminary we may note that in modern times the law of defamation has evolved primarily as a matter of determining and applying common law tort principles upon a background of the guaranties of free speech and free press contained in section 11 of the Kansas Bill of Rights and the first and fourteenth amendments to the federal constitution. It has been largely concerned with the issue of privileged communications. Certain communications are recognized as privileged and as such not within the rules imposing liability for defamation. 'The defense of privilege is a matter of public policy in furtherance of the right of free speech. The underlying idea is that by reason of a public or social interest that is entitled to protection, immunity is granted from liability for defamation that otherwise would be actionable. Privilege does not destroy the actionable character of a defamatory communication, but is available only by way of defense.' (50 Am.Jur.2d, Libel and Slander, § 192, p. 695.) In Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 340 P.2d 396, 76 A.L.R.2d 687, this court discussed the defense as follows:

'The term 'privileged' as applied to a publication alleged to be libelous means simply that the circumstances under which the publication was made are such as to repel the legal inference or presumption of malice, and to place upon the plaintiff the burden of affirmatively pleading and proving its actual existence beyond the mere falsity of the charge. . . . A privileged communication is often divided into two classes: absolute privilege,...