Gobin v. Globe Pub. Co.

• Decision Date: 31 August 1982
• Docket Number: No. 53852,53852
• Citation: 649 P.2d 1239,232 Kan. 1
• Parties: , 36 A.L.R.4th 797, 8 Media L. Rep. 2191 Gary Dean GOBIN, Appellee, v. GLOBE PUBLISHING CO., A Corporation, Appellant.
• Court: Kansas Supreme Court

Page 1239

649 P.2d 1239

232 Kan. 1, 36 A.L.R.4th 797, 8 Media

L. Rep. 2191

Gary Dean GOBIN, Appellee, v. GLOBE PUBLISHING CO., A Corporation, Appellant.

No. 53852.

Supreme Court of Kansas.

Aug. 31, 1982.

Syllabus by the Court

1. It is damage to one's reputation in the community for which redress is sought in a defamation action. Evidence of reputation is admissible in such a proceeding.

2. Damage to one's reputation is the essence and gravamen of an action for defamation. Unless such damage is shown, no claim for defamation is established.

3. Plaintiff in an action for defamation must first offer proof of harm to reputation; any claim for mental anguish is "parasitic" and compensable only after damage to reputation has been established.

Gerrit H. Wormhoudt, Wichita, argued the cause, and Harry A. Waite, Dodge City, was with him on the brief for appellant.

Donald E. Shultz, of Shultz, Shultz & Tedford, P. A., Dodge City, argued the cause and was on the brief for appellee.

MILLER, Justice:

This is a libel action brought by Gary Dean Gobin against the Globe Publishing Company, publisher of the Dodge City Daily Globe, arising out of a report of court proceedings published in the Daily Globe on July 8, 1972. The case has previously been before this court twice. See Gobin v. Globe Publishing Co. (Gobin I), 216 Kan. 223, 531 P.2d 76 (1975), and Gobin v. Globe Publishing Co. (Gobin II), 229 Kan. 1, 620 P.2d 1163 (1980).

Plaintiff's petition alleges that the defendant's publication of a news story that he pled guilty to a charge of cruelty to animals was false, libelous and defamatory to him, and was published maliciously and in reckless disregard of his rights and reputation. The trial court initially sustained the publisher's motion for summary judgment, holding that the publication was privileged. In Gobin I, we discussed our earlier cases and the recent opinions of the United States Supreme Court, particularly Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, reh. denied 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197 (1967); and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In summarizing Gertz, we said:

"These rules were announced: A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground the defamatory statements concern an issue of public or general interest; so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent; the states, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury.

"Thus, under Gertz, our old rule of strict liability applicable to reporting judicial proceedings which permitted recovery on no more proof than that the report was inaccurate, expressed in Stone v. Hutchinson Daily News, (125 Kan. 715, 266 Pac. 78 (1928) ) is no longer constitutionally valid ...." 216 Kan. at 231, 531 P.2d 76.

We announced our rule as follows:

"Our holding then is, 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 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; further, when liability for defamation is based solely upon negligence the plaintiff may not recover presumed or punitive damages.

"Under these rules, since appellant was neither public official nor voluntary public figure and the publication was one the substance of which made substantial danger to reputation apparent, rendition of summary judgment was premature and remand must be ordered to make the relevant inquiry whether appellee Globe negligently published the false statement." (Emphasis supplied.) 216 Kan. at 233, 531 P.2d 76.

We concluded that the publication was not privileged. Under the rules stated, we reversed and remanded for further proceedings.

The action was then tried to a jury and judgment resulted in favor of the plaintiff and against Globe for $38,500. The trial court instructed the jury that the story printed in the Globe was false. The only issues submitted to the jury were those of the Globe's negligence and the amount of damages. In Gobin II, we again reversed, holding that the trial court erred in determining as a matter of law that the news story was false.

Also, in Gobin II, we were called upon to determine the propriety of the trial court's entry of an order in limine, by which evidence of Gobin's "involvement" in other criminal proceedings was excluded. We concluded that the trial court was correct in rejecting evidence of certain specific court actions, but that the effect of such actions upon Gobin's reputation was admissible. We said:

"The plaintiff's reputation is necessarily involved in a libel action, and it is the general rule that evidence of reputation is admissible in such a proceeding.

....

"It is damage to one's reputation in the community for which redress is sought in libel or slander actions. Reputation is what others say or think about a person, one's good or bad name in the community.

"... (C)haracter witnesses are persons who portend to know what is said of another, what one's reputation is among his friends, neighbors, and associates. Such persons could be expected to know of one's brushes with the law and the effect, if any, of such instances upon one's reputation. We conclude that Gobin's conduct on the occasion of his arrests, and the fact of his trials, the extent of knowledge thereof, and their effect, if any, upon his reputation, is admissible either in direct or cross-examination of character witnesses." 229 Kan. at 5-6, 620 P.2d 1163.

We remanded for a new trial. The case has now been tried a second time; a judgment in the amount of $100,000 in favor of the plaintiff has been entered upon the jury's verdict. The Globe's motion for judgment non obstante verdicto or in the alternative for a new trial was argued and overruled. The defendant appeals.

A few days prior to the second trial, plaintiff again moved for an order in limine to prohibit the defendant from making any reference to or otherwise informing the jury of certain facts-a charge of negligent homicide, a charge of attempted theft of hogs, a charge by court-martial while plaintiff was in the military service, and a charge of conspiring to sell controlled substances-all brought against the plaintiff at various times, and an automobile collision case in which the plaintiff was involved. In arguing the motion, counsel for plaintiff agreed that there were three elements of damage listed in the pretrial order-damage to reputation, loss of income, and emotional distress. Counsel stated that plaintiff would no longer claim damage to reputation, and thus reputation would not be involved at trial. The trial judge sustained the motion and directed counsel for defendant not to refer to the factual items enumerated in the motion. Immediately before trial was to commence, counsel and the court discussed another civil action in which the plaintiff was involved. Plaintiff's counsel assured the court that plaintiff would make no claim for either damage to reputation or for loss of income. The trial court then included the additional civil action with those matters which defendant was precluded from mentioning in the presence of the jury. The only element of damages left in the case, and the one upon which evidence was presented and the case was submitted to the jury, was plaintiff's claim for damages for emotional distress. There was no evidence of malice, knowledge by defendant of falsity, or reckless disregard for the truth; the case was tried on the theory of simple negligence.

The controlling issue upon this appeal is whether damage to one's reputation is an essential ingredient in an action for defamation.

Prior to Gertz, Kansas followed the common law rule dividing libel into libel per se and libel per quod. Libel per se involved words from which malice was implied and damage was conclusively presumed to result. General damages from such a publication arose by inference of law and the plaintiff was not obliged to establish damage by proof. See Koerner v. Lawler, 180 Kan. 318, 304 P.2d 926 (1956); Bennett v. Seimiller, 175 Kan. 764, 267 P.2d 926 (1954); Hatfield v. Printing Co., 103 Kan. 513, 175 P. 382 (1918); 3 A.L.R. 1276; and Eckert v. VanPelt, 69 Kan. 357, 76 P. 909 (1904). In Bennett v. Seimiller, Justice Wedell said:

"In actions involving libel or slander the temptation quite naturally exists to write a treatise on the subject. We shall attempt to hold that tendency within reasonable bounds. The term 'libel' is not defined by our civil code. (Jerald v. Houston, 124 Kan. 657, 662, 261 Pac. 851.) Neither is the term 'slander' defined. Reference, therefore, must be made to the common law to determine its meaning. Courts have defined actions involving slander into slander per se and slander per quod. In actions based on libel or slander...