Herald Telephone v. Fatouros
| Decision Date | 18 February 1982 |
| Docket Number | No. 4-681A15,4-681A15 |
| Citation | 431 N.E.2d 171 |
| Parties | 8 Media L. Rep. 1230 The HERALD TELEPHONE, Appellant (Defendant Below), v. Naomi FATOUROS, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Barbara B. Benson, Douglas R. Bridges, Bloomington, for appellant.
Naomi Fatouros, appellee pro se.
Defendant-appellant The Herald-Telephone appeals from the trial court's issuance of an Emergency Restraining Order requiring it to print the political advertisement of plaintiff-appellee Naomi Fatouros.
We affirm.
The Herald-Telephone is a newspaper of general circulation in Monroe County. At the time of the events which led to this appeal, Ms. Fatouros was a candidate for election to the school board in Monroe County. On Thursday, October 30, 1980, Ms. Fatouros talked with Ivan Drummond from the advertising lay-out section of the newspaper about placing an ad in the paper on Monday, November 3. Drummond informed her that the deadline for placing a Monday ad was 5:00 p. m. that day. Shortly before 5:00 p. m., Ms. Fatouros went to see William Schrader, the newspaper's editor, and told him she needed more time to finish the copy for her ad. Schrader gave her an extension of time until 8:00 a. m. Friday. Payment for the ad was accepted from Ms. Fatouros at this time.
At approximately 8:00 a. m. on Friday, Ms. Fatouros delivered her ad to Drummond. They spent the next hour or so going over the lay-out of the ad. The evidence is in conflict as to whether Drummond actually reviewed the content of the ad with Ms. Fatouros. Drummond told her that she could come back on Saturday to look at the proof of her ad. After Ms. Fatouros left on Friday, Drummond read the ad more closely. Thinking that it was "bad copy", Drummond took the ad to Marvin Lewis, the advertising director. Lewis and James Snodgrass, the vice-president for advertising, met with Ms. Fatouros around noon on Friday. They told her that the ad was inflammatory and contained derogatory statements and would not be printed. Lewis then showed Ms. Fatouros a copy of the newspaper's "Policy Considerations Covering Political Advertisements" which stated that it was against the newspaper's policy to publish inflammatory and derogatory political ads. Snodgrass offered to print those parts of the ad which were not inflammatory and derogatory or to give Ms. Fatouros her money back if she did not want to run the ad as modified. Ms. Fatouros accepted neither of these offers.
Ms. Fatouros filed a complaint and petitioned the court for an immediate order to force the newspaper to run the ad. After an emergency hearing, the court ruled that Ms. Fatouros and The Herald-Telephone had entered into a contract for publication of the advertisement 1 and that the newspaper's "Policy Considerations Covering Political Advertisements" was not a part of the contract. The trial court then enjoined the newspaper from breaching the contract.
On appeal The Herald-Telephone raises the following issues: 2
1. Whether the Court's ruling that a contract was entered into on Friday, October 31 was contrary to the law and to the evidence submitted because the newspaper refused the advertisement in the proper exercise of its editorial discretion and therefore no contract was formed;
2. Whether the Court's finding that the newspaper's written Policy Considerations were not a part of the contract was error as a matter of law because the exercise of editorial discretion is a part of every newspaper contract regardless of whether or not The Herald-Telephone's written policy guidelines were shown to Naomi Fatouros; and
3. Whether the Court's Order and Judgment for Naomi Fatouros and against The Herald-Telephone was contrary to constitutional law because the First Amendment Freedom of the Press guarantee supports the newspaper's position that its refusal of the ad was a reasonable exercise of editorial discretion.
Appellee has not favored this Court with a brief to support the judgment of the trial court. Nevertheless, she is given the benefit on appeal of that view of the evidence most favorable to the trial court's judgment, and reversal will ensue only if error is demonstrated in the record and by appellant's brief. Day v. West, (1978) Ind.App., 373 N.E.2d 935.
Appellant first contends that the trial court's ruling that a contract was entered into on October 31, 1980 was contrary to law and the evidence. In order to have a legally binding contract there must generally be an offer, acceptance and consideration. See, e.g., L. Simpson, Contracts § 8 (2d ed. 1965). There is no disagreement between the parties that there was an offer and consideration. The question is whether the appellant newspaper accepted Ms. Fatouros' offer to publish the advertisement. Appellant claims that there was insufficient evidence to establish that Drummond did bind the newspaper to accept the ad and that he did not possess the authority to so bind the newspaper. When reviewing a challenge to the sufficiency of the evidence, the Court of Appeals will neither weigh the evidence nor judge the credibility of witnesses, but will look only to the evidence most favorable to the trial court's determination together with all reasonable inferences to be drawn therefrom. E.g., Glass v. Leland Smith Insurance Agency, Inc., (1981) Ind.App., 414 N.E.2d 977. If the appellate court finds evidence of probative value to sustain the judgment of the trial court, that judgment will not be disturbed. Id.
An acceptance must be evidenced by some overt act and must be communicated to the offeror. Young v. Bryan, (1977) Ind.App., 368 N.E.2d 1. The acceptance may be expressed by acts which manifest the acceptance. Id. The evidence most favorable to the judgment shows that the ad lay-out person goes over the copy with the customer if the customer has time. The plaintiff was willing to stay until the ad lay-out person was finished. The ad lay-out man reviewed the copy and told the plaintiff she could see the proof the next day. The plaintiff was never shown the newspaper's written policy on advertisement content. There was an acceptance when the appellant had an opportunity in the normal course of business, during the laying out of the ad, to reject the copy and failed to do so, and further failed to reserve any right to future review. The trial court could have found that...
To continue reading
Request your trial
-
General Elec. Co. v. Speicher
...by the principal causes a third person to reasonably believe an agent possesses authority to act as he does. Herald Telephone v. Fatouros, 431 N.E.2d 171, 175 (Ind.App.1982). Apparent authority can be created even in the absence of any actual Apparent authority arises when the principal, ei......
-
Kaken Pharmaceutical Co. v. Eli Lilly and Co.
...of contract law that contract formation requires only three elements: offer, acceptance, and consideration. Herald Telephone v. Fatouros, 431 N.E.2d 171 (Ind. App.1982). Implicit in these elements is that the parties to the contract have some meeting of the minds, or in other words, a manif......
-
Indiana Const. Corp. v. Chicago Tribune Co.
...the offer. Chicago Joint Bd., Amal. Cloth Wkrs. v. Chicago Tribune Co., 307 F.Supp. 422, 424 (N.D.Ill. 1969); Herald Telephone v. Fatouros, 431 N.E.2d 171, 174 (Ind.App.1982). Before a contract could be formed, the Tribune then had to accept the Acceptance must be "evidenced by some overt a......
-
Speckman v. City of Indianapolis
...authority of the Director of the Department of Parks and Recreation and of the Corporation Counsel bind the City. Herald Telephone v. Fatouros (1982), Ind.App., 431 N.E.2d 171. 4 B. Definite Term The City argues the settlement agreement is not enforceable because it does not specify a defin......