Holtzscheiter v. Thomson Newspapers, Inc.

• Decision Date: 23 January 1990
• Docket Number: No. 23536,23536
• Citation: 411 S.E.2d 664,306 S.C. 297
• Court: South Carolina Supreme Court
• Parties: , 19 Media L. Rep. 1717 Sandra Prosser HOLTZSCHEITER, Appellant, v. THOMSON NEWSPAPERS, INC., d/b/a The Florence Morning News, and Dr. Kay Mitchell, Respondents. . Heard

Page 664

411 S.E.2d 664

306 S.C. 297, 19 Media L. Rep. 1717

Sandra Prosser HOLTZSCHEITER, Appellant, v. THOMSON NEWSPAPERS, INC., d/b/a The Florence Morning News and Dr. Kay Mitchell, Respondents.

No. 23536.

Supreme Court of South Carolina.

Heard Jan. 23, 1990.

Decided Dec. 16, 1991.

Rehearing Denied Jan. 7, 1992.

[306 S.C. 299] John S. DeBerry, Florence, for appellant.

E.N. Zeigler, Florence, and J. Edward Bell, Sumter, for respondents.

CHANDLER, Justice:

Sandra Prosser Holtzscheiter (Holtzscheiter) appeals an Order granting Respondent, Florence Morning News (Newspaper), directed verdicts on causes of action for defamation and intentional infliction of emotional distress.

We affirm in part, reverse in part and remand.

FACTS

On July 26, 1986, Newspaper reported the murder of Holtzscheiter's 17-year old daughter, Shannon. The news article contained background information that Shannon was "a drifter," "the product of a broken home," was not "the image of sweet-sixteen, definitely not a cheerleading type," was "in with the wrong crowd," and, lastly, characterized Shannon as a high-school drop-out who had "no family support to encourage her to continue her education."

Holtzscheiter instituted this defamation suit alleging that the words "there simply was no family support to encourage her to continue her education" implied that she was an unfit mother and, as such, had contributed to Shannon's death. The complaint also alleged intentional infliction of emotional distress.

At trial, Holtzscheiter presented several witnesses who testified she was a good mother who encouraged her children to continue their education. Additionally, testimony indicated that Holtzscheiter's reputation was injured by the article as "it was the talk of the town, the whole neighborhood.... They didn't think anything of the family, by what they had read in the paper."

The Court, ruling that interpretation given the article by "someone else" was irrelevant, limited this line of testimony.

At the close of evidence, the Court granted Newspaper's motion for directed verdict in the defamation action, holding that Holtzscheiter had failed to prove special damages as required in cases of libel per quod. The Court also ruled Newspaper's conduct did not "exceed all possible bounds of decency" and, accordingly, directed a verdict in the action for intentional infliction of emotional distress.

ISSUES

Holtzscheiter contends the trial Court erred:

1. In directing a verdict in the defamation action.

2. In directing a verdict in the intentional infliction of emotional distress action.

3. In limiting testimony regarding how "someone else" interpreted the news article.

DISCUSSION

I. DEFAMATION

In determining if proof of special damage ¹ is necessary to make a libel actionable, we are guided by our leading case on the subject, Capps v. Watts, 271 S.C. 276, 246 S.E.2d 606 (1978).

Under Capps, it must first be determined whether the words published by the defendant are capable of a libelous meaning. Id. at 281-82, 246 S.E.2d at 609. Either the publication must be libelous on its face (libel per se ), ² or the defendant's Next, it must be determined whether damages, general or special, have resulted to the plaintiff, in the form of general or special damages. Special damage is required for some, but not all, cases of libel. Capps at 283-86, 246 S.E.2d at 610-12. Per se libels are actionable without proof of special damage, id. at 284-85 n. 2, 246 S.E.2d at 611 n. 2, as are certain categories of libel per quod, id. at 286, 246 S.E.2d at 611-12. The applicable rules are summarized in Prosser, The Law of Torts § 112, p. 763 (4th ed. 1971), cited with approval in Capps:

words must derive a defamatory meaning from extrinsic facts (libel per quod ). ³

The great majority, of some thirty-five other courts, have agreed [that proof of special damage is unnecessary] where the publication is defamatory upon its face. They have disagreed, however, where extrinsic facts are necessary to make out the defamatory meaning conveyed; and they have held that such libel 'per quod' is to be treated like slander. If the imputation falls into one of the four special slander categories, it is actionable without proof of special damage. If it does not, there can be no recovery unless special damages is pleaded and proved. (Footnotes omitted).

Applying the Capps analysis here, we hold that proof of special damage was unnecessary. Although ambiguous, the newspaper article could be read, on its face, to charge Holtzscheiter with failing to support her daughter by not encouraging her to continue her education. If untrue, this would constitute a libel per se, for which special damage is not required. The trial court, therefore, erred in refusing to submit defamation to the jury. ⁴

II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The tort of "intentional infliction of emotional distress" or "outrage" was first recognized in Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981). There, we held that a plaintiff must establish:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct, Restatement (Second) of Torts § 46, Comment i; (2) the conduct was so 'extreme and outrageous' as to exceed 'all possible bounds of decency' and must be regarded as 'atrocious, and utterly intolerable in a civilized community,' Restatement (Second) of Torts § 46, Comment d; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was 'severe' so that 'no reasonable man could be expected to endure it.'

276 S.C. at 162, 276 S.E.2d at 778.

Initially, "it is for the Court's determination whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and only where reasonable persons might differ is the question one for the jury." Todd v. South Carolina Farm Bureau Mutual Ins., 283 S.C. 155, 167, 321 S.E.2d 602, 609 We agree with the trial Court that the language of the article here was not so extreme and outrageous as to exceed all possible bounds of decency. Direction of verdict on this cause of action was properly granted.

(Ct.App.1984), reversed in part on other grounds, 287 S.C. 190, 336 S.E.2d 472 (1985).

III. EFFECT OF ARTICLE ON READERS

The trial Court's ruling that evidence of "how someone else perceived the words was irrelevant and inadmissible" does not accord with this Court's holding in Nettles v. MacMillan Petroleum Corp., 210 S.C. 200, 42 S.E.2d 57 (1947):

The general rule is that the testimony of readers or hearers in actions for libel or slander, as to what they understood the alleged defamatory words to mean, is inadmissible, at least where the words are unambiguous and plain and in the absence of peculiar circumstances, either as respects the language employed or the manner of its utterance or publication. However, such evidence is held to be admissible where the meaning of the words is doubtful or ambiguous.... Where the meaning of the words is doubtful or ambiguous, witnesses who heard them may be examined as to the sense in which they understood them, but it is the province of the jury to construe words, and to determine in what sense the speaker used them.... The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred; he may call witnesses to state how they understood the libel; though the jury are not bound to adopt the opinions of such witnesses. [Emphases supplied].

210 S.C. at 204, 205, 42 S.E.2d at 58, 59.

Here, ambiguity in the words used entitled Holtzscheiter to offer testimony which was excluded by the trial Court. ⁵

CONCLUSION

The order directing a verdict on "outrage" is affirmed. The remainder of the judgment is reversed and remanded for a new trial.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HARWELL and FINNEY, JJ., concur.

GREGORY, C.J., and TOAL, J., dissenting in separate opinion.

TOAL, Justice (dissenting):

I respectfully dissent. The majority does not address, nor did the parties here, the potential impact of the decisions of the United States Supreme Court on this case. Furthermore, the majority opinion, in my view, does not accurately interpret South Carolina case law concerning defamation. I would affirm the trial court's granting of a directed verdict in favor of the defendant as to the defamation claim, but on a different ground than that employed by the trial judge.

I. FIRST AMENDMENT ISSUES

A proper assessment of any defamation case in the modern era should begin with a review of the United States Supreme Court cases concerning the balancing of the interests of persons to speak freely. The cases styled New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) were the first of a series of pronouncements in which a deeply divided Supreme Court struggled with the proper parameters of state defamation law in light of first amendment rights. In New York Times and Butts the rule was established that a public figure plaintiff suing for defamation must prove, by clear and convincing evidence, that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.

Neither party has advanced a view as to whether the plaintiff here could be characterized as a "public figure". A reading of the record convinces me, however, that she is not to be treated as such. The analysis should therefore move to those cases dealing with "private figure" plaintiffs.

The first case decided in this vein was the much-debated Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz was a 5-4 decision with one justice concurring, yet it appears now to be firmly established precedent by virtue...