Grayson v. Curtis Pub. Co., 38791

• Decision Date: 30 December 1967
• Docket Number: No. 38791,38791
• Court: Washington Supreme Court
• Parties: John GRAYSON, Respondent, v. The CURTIS PUBLISHING COMPANY, a corporation, and Curtis Circulation Company, a corporation, Appellants.

Page 999

72 Wn.2d 999

436 P.2d 756

John GRAYSON, Respondent, v. The CURTIS PUBLISHING COMPANY, a corporation, and Curtis Circulation Company, a corporation, Appellants.

No. 38791.

Supreme Court of Washington, En Banc.

Dec. 30, 1967.

Rehearing Denied March 22, 1968.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Seattle, Pepper, Hamilton & Sheetz, John Runzer, Philadelphia, Pa., for appellants.

Bassett, Donaldson & Hafer, Seattle, Foster & Foster, Olympia, for respondent.

HUNTER, Judge.

This libel action arises from an article in the Saturday Evening Post published by Curtis Publishing Co. and Curtis Circulation Co., defendants (appellants), referred to hereafter as 'Curtis,' which reported in its January 5--12, 1963 edition a referee's description and criticisms of 'Basketball's Bullies, reckless coaches, rowdy players and riotous fans (who) disgrace our colleges * * *.' John Grayson, the plaintiff (respondent), and head basketball coach at the University of Washington at the time of the publication in 1963, was prominently named in the article as an example of 'explosive bench behavior'--a coach's reaction to adverse decisions by a referee--which contributes to the country-wide 'scandal' of 'rabble-rousing' and violence that erupt at these emotion-filled contests. The referee, Al Lightner, told the story of his personal involvement to Al Stump, a free-lance writer, the pertinent part of which reads as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the evening of last March 2, I stopped by the University of Washington Hospital in Seattle to visit my wife, Alma, who had undergone heart surgery two days earlier. Then I drove a few blocks to Edmundson Pavilion, where I was scheduled to referee an important Big Five Conference basketball game between U.C.L.A. and the Washington Huskies.

About 11 p.m. the last shot had been fired and I was back at the hospital. They let me see Alma for a moment. And although she was still weak, she couldn't miss the welt on my jaw, scratches on my face and a bandage covering a cut scalp.

'You look worse than I do,' she murmured, without asking what had happened. 'Have them roll in another bed.'

I'd been the fall guy in the middle of another basketball riot, and in the Lightner family such things never need explaining. Wild nights on the court are so common that it's nothing unusual when I stomp into the house, kick my equipment bag across the room, swear I'll never step onto another university campus and reach for the first-aid kit. Officiating in this game always has been tough. I've had 23 years of it, coast to coast, including 18 N.C.A.A. regional or national championship play-offs, and the stuff that's been thrown at me would fill a garbage truck--ripe Michigan mackerel, bottles, rock candy, a stink bomb, a piccolo, a pair of women's spiked shoes. This comes under the heading of 'minor annoyances' and you take it and smile. But in the past half dozen seasons my job has become intolerable, and I've decided to break the 'don't talk' rule that has long been imposed on referees.

From Insult to Injury

To see these forces at work, take that evening of last March 2 when the local Washington Huskies played U.C.L.A. at Seattle. Tip-off time was still five minutes away when I approached Coach John Grayson of the Huskies to ask, 'Who's your captain for tonight?'

The lanky Grayson glared at me. 'You're such a smart character--You pick him.' he snapped.

The fact that Grayson doesn't like referees is well known on the Coast. We officials call him 'Mr. T'--for technical foul. In our opinion, he ranks with Branch McCracken of Indian, Jack Gardner of Utah and Bones McKinney of Wake Forest for explosiveness.

But I let his crack pass. Then early in the game I called a charging foul on Washington's star forward, Roger Niva. Grayson leaped up, kicked some towels and yelled, 'If that isn't the worst _ _ call I ever saw in my life!' Taking their cue from his outburst, many of the 7,000 customers began hurling coins, orange peels, bags and wads of gum at me.

There was no question about my next move. I flashed the technical-foul sign to the scorekeeper, awarding U.C.L.A. a one-point penalty shot. As the ball dropped through the basket, the crowd's muttering built up to an ominous roar. It took no genius to see that trouble was coming. The fans, of course, had no way of knowing that I was acting under orders. Grayson had been a problem for a long time, and Commissioner Bernie Hammerbeck, who assigns Big Five officials, had told me to 'nail Grayson the first time he causes trouble. I've had enough of his pyrotechnics.'

Then, as if stirring up the wellfilled stands weren't enough, Grayson's behavior produced a second result. When one coach begins disputing decisions, his rival across the court begins worrying that this agitation may influence the ref, so he starts popping off himself. And from the bench of Johnny Wooden of U.C.L.A. came a towel and the rasping cry: 'Open your eyes, you former!' 'Homer' is basketball lingo for an official who favors the home club. And since I live not many miles from the Washington campus I couldn't ignore the questioning of my integrity. I instantly hit U.C.L.A. with a technical.

The fever now spread to Roger Niva, the Washington star, who screamed dirty words at me after I caught him elbowing the Bruins' Walt Hazzard on a rebound. 'Remember what happened a few weeks ago,' I warned him. In an earlier game, I'd 'technicaled' Niva for the same thing.

Clenching his fists, Niva snapped at me: 'I can say anything I want because I'm captain!' That brought more junk flying from above. This time foul calls didn't help. Tempers steamed to the point where courtside fans tried to trip me as I ran past them. When that failed, the Washington cheerleader jumped into my path. Shoving him aside I caught a hot penny between the eyes. Today's campus cutups apply matches to coins and throw them in salvos. But all this was nothing compared to what happened near the end of the game. With 17 seconds to play and U.C.L.A. leading by 68--66, I ruled against Washington on where an out-of-bounds ball should be put in play. It was an open-and-shut decision, but Grayson raved and complained to the crowd. It was like ordering a tree and a rope. The Los Angeles boys won 69--66, and as time ran out I heard a familar sound--rushing feet.

About 50 students and older fans came at me, swinging. A bottle opened my scalp. A handful of campus police tried to hold them back, but I took dozens of punches and elbow blows as we struggled toward the dressing room. One 200-pounder in a 'Big W' sweater made a fullback's rush at me. An officer flattened him and hollered at me, 'Don't stop--we'll run for it!' Amid falling bodies we made it. A guard was set up outside the locked door.

'Never again while Grayson is coach here,' I told the sportswriters, 'will I work a game at this school. I get $65 a game to act as a referee. I'm not paid to be a punching bag or to keep the crowd in line while he incites it.'

Friends slipped me away later. Large headlines followed. Washington U officials 'deplored' the 'incident' and Athletic Director Jim Owens officially apologized next day. 'For which 'incident' do you apologize? ' I asked Owens.

'Why, for the one last night,' he said.

'Thanks, I wanted to make sure,' I said, 'because I've been manhandled here three times in the past two seasons.'

Although Grayson eventually added his regrets, my promise not to return to Seattle remains firm. For this wasn't an isolated incident, but simply one more case among hundreds each fall and winter of rabble-rousing, terrible sportsmanship and irresponsible patrolling of a school facility by people supposed to set and enforce good standards of conduct.

I'd like to be able to say we should excuse the actions of coaches. They're in a frenzied, jammed-tight, contagious atmosphere where the score seesaws every few seconds. But I won't make excuses. Grown men shouldn't pound their fists on the floor, shred towels, scream, faint, fling dippers of water. Such people are dangerous--especially since today's kids often have hair-trigger tempers; they've watched TV violence and they respond to every action of the coach.

The text further criticized colleges and universities for their indifference in not backing up officials' crackdowns on unruly players and coaches, and failure to 'police the house thoroughly.'

Referee Lightner then described the efforts taken at the University of California to control rowdyism, and noted the improvement after the Chancellor of the University decided to 'take a hand.' A 'basketball sportsmanship' project was announced and the student council demanded that everyone behave. The Straw Hat Band, noted for its 'hot coin' and 'paper wad' peltings, was moved well back from the floor and was under surveillance. The California coach 'suffered plenty' when his team took a one-sided defeat but not once did he protest a ruling. And everywhere that Lightner looked, he saw a policeman.

The article's conclusion made clear that 'college students and officials can maintain order if they want to make the effort'; that 'the effort must be made soon, or this great game--already crippled by scandals--could be killed for good.'

Approximately 4 months following publication of the Post article, the University of Washington declined to renew Grayson's contract as head basketball coach. After failing to gain new employment for the 1963--1964 basketball season, Grayson instituted this action seeking $300,000 compensatory damages.

Curtis answered, admitted publication of the article, but denied any defamatory content and alleged damages. In addition, Curtis pleaded the defenses of substantial truth, fair comment, qualified privilege, good faith, and the absolute protection of the First Amendment as guaranteeing freedom of the press in the absence of malicious publication.

Upon...