Hurley v. Northwest Publications, Inc.

• Decision Date: 28 September 1967
• Docket Number: No. 3-67 Civ. 46.,3-67 Civ. 46.
• Citation: 273 F. Supp. 967
• Parties: William D. HURLEY and Frank G. Hurley, Plaintiffs, v. NORTHWEST PUBLICATIONS, INC., a corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

273 F. Supp. 967

William D. HURLEY and Frank G. Hurley, Plaintiffs, v. NORTHWEST PUBLICATIONS, INC., a corporation, Defendant.

No. 3-67 Civ. 46.

United States District Court D. Minnesota, Third Division.

September 28, 1967.

COPYRIGHT MATERIAL OMITTED

William D. Hurley, pro se and for plaintiff Frank G. Hurley.

Murnane, Murnane, Battis & deLambert, by E. W. Murnane, St. Paul, Minn., for defendant.

NEVILLE, District Judge.

This diversity action seeks recovery of $140,000 for each of two brothers, co-plaintiffs, and is founded upon three counts of libel and one count of invasion of the right of privacy. All stem from the publication in defendant's newspaper, the St. Paul Dispatch, on February 25, 1965 of an article on the front page of the second section entitled "Lawsuit Filed in Estate Fight". The complaint avers that statements defamatory of the plaintiffs were contained in the publication.

The article was written by a staff writer for the newspaper, one J. C. Wolfe, and is based upon and is essentially a condensed report of a complaint in a lawsuit filed the same day in Ramsey County District Court in St. Paul, Minnesota, in an action brought by the First Trust Company of St. Paul as special administrator of the estate of Agnes M. Hurley, deceased. This action named as defendants the plaintiffs in this present action, as well as their mother and their four sisters. The action sought to recover for the estate assets claimed to have been wrongfully transferred to the defendants (including these plaintiffs) prior to Agnes M. Hurley's death.

There is basically no dispute that the newspaper article in question is an accurate report and a fair abridgment or condensation of the contents of the complaint, and that it quotes correctly therefrom. The language in the article which is claimed to be actionable is found in three paragraphs therein. The sixth paragraph states that the lawsuit:

"* * * contends that virtually the entire fortune was depleted by the heirs of Frank Hurley in the two years preceding Agnes Hurley's death."

In the tenth paragraph of the article it is reported that:

"According to the complaint, this money was placed in an account, with subsequent withdrawals of more than $200,000 up to the time of Mrs. Hurley's death. It is claimed these withdrawals were transferred to the defendants for their personal use."

Then in the eleventh paragraph the article states:

"It is further claimed that during those two years prior to her death, Mrs. Hurley was in a weakened condition and impaired state of mind due to age and that she was influenced in her actions by William D. and Frank G. Hurley and their mother, Mrs. Giraldin, who `took advantage' of the fact they `occupied positions of trust and confidence' with the now deceased woman."

The last paragraph of the article reads:

"The defense has issued a general denial of the allegations in the complaint, but declines to comment further."

The complaint referred to was the culmination of prior legal proceedings had in the Ramsey County Probate Court. Two different wills of Agnes M. Hurley had been offered by different heirs for probate and pending resolution of this dispute on November 30, 1964, the Probate Court appointed the First Trust Company of St. Paul, Minnesota, as special administrator for the purpose of collecting the assets and conserving the estate based upon a recital in the petition by one of the heirs requesting such appointment that "* * * your petitioner verily believes that decedent's estate has been substantially depleted by transfers of the above-specified investments while decedent was mentally incompetent and subject to undue influence".

The First Trust Company thereafter petitioned the Probate Court for authority to institute proceedings "* * * against Mary Hurley Giraldin, Frank Hurley and William Hurley and such other persons as may be required to recover on behalf of the above estate the value of the property owned by the decedent and caused to be transferred from said decedent * * *" prior to her death. The said petition specifically alleged that Frank and William Hurley (plaintiffs herein) had, with their mother, conspired together unduly to influence the decedent to transfer to them the proceeds of various securities then owned by the decedent.

Pursuant to this latter petition, on January 7, 1965, the Probate Court made and filed an order authorizing and directing the First Trust Company to institute an appropriate action or actions against William D. Hurley, Frank J. Hurley, Mary Hurley Giraldin and such other persons as "may be necessary" to recover the value of property owned by the decedent and caused to be transferred by her. Thereafter, the complaint of First Trust Company in St. Paul, with a copy of such probate order attached, was filed in Ramsey County District Court. Such complaint was the subject matter of the St. Paul Dispatch article and publication which is in question in this lawsuit.

Plaintiffs have filed with this court a motion for partial summary judgment, in which they ask the court to determine that they have a right to recovery as a matter of law and leave only the question of the amount of damages for the jury. Contemporaneously, defendant filed with this court a motion for summary judgment, asking a dismissal of plaintiffs' case on the merits.

It is claimed at the outset by the plaintiffs that the language above quoted from the newspaper article may be classified as libelous per se, and thus that special damage need not be pleaded nor proved to maintain the action. It seems apparent to this court, though not actually necessary to a decision in view of the court's ultimate ruling in this case, that the article in question is libelous per se, if actionable and if false, as tending to expose the plaintiffs to public hatred, contempt and ridicule, and to degrade them in society and lessen them in the public esteem. Hammersten v. Reiling, 262 Minn. 200, 115 N.W.2d 259 (1962); Gadach v. Benton County Co-op. Ass'n, 236 Minn. 507, 53 N.W.2d 230 (1952); see further cases cited in 11 Dunnell Minnesota Digest § 5517.

While the complaint as reported in the article may not impute to the plaintiffs any specific crime in haec verbae, in common parlance it conveys to the public implications of conduct bordering upon fraud and embezzlement. It can scarcely be argued that imputation, if false, of such conduct as set forth in paragraph eleven above quoted would not have the effect of degrading and lessening such persons in the public's esteem.

Assuming without deciding that the language complained of is actionable per se, such does not, however, eliminate the generally accepted requirement of proof of actual malice to warrant the recovery of general damages where there exists a qualified privilege to publish the material complained of. A qualified or conditional privilege to publish a report of a judicial proceeding has the effect of barring recovery in a libel action unless the defamatory statements are maliciously made or do not present an accurate account of the proceeding. The modern rule is stated in the Restatement, Torts, Vol. 3, § 611:

"The publication of a report of judicial proceedings, or proceedings of a legislative or administrative body or an executive officer of the United States, a State or Territory thereof, or a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is

(a) accurate and complete or a fair abridgment of such proceedings, and

(b) not made solely for the purpose of causing harm to the person defamed."

The defendant contends that in the instant case the article published was cloaked with the qualified privilege generally accorded to fair and accurate reports of judicial proceedings. It is the position of plaintiffs, however, that the rule enunciated in Nixon v. Dispatch Printing Co., 101 Minn. 309, 112 N.W. 258, 12 L.R.A.,N.S., 188 (1907), controls the question of privilege in the present situation. In that case, the court held that the privilege normally attaching to a report of judicial proceedings did not extend to a report based upon the mere filing of a complaint with the Clerk of Court since it would provide:

"* * * an easy and safe way * * whereby a party desiring to libel another may do so with impunity by entitling the libel in an action, labeling it a complaint, and filing it with the clerk."

The court then stated, in effect, that to allow such to stand as privileged matter would be to countenance a makeshift evasion of the constitutional guarantee to citizens of a remedy for wrongs which they may suffer. The court in Nixon distinguished the mere filing of a complaint from further proceedings had with respect thereto by noting the fact that the latter are held under the control of the court, while the former is not.

The defendant cites a number of cases from other jurisdictions apparently holding contrary to Nixon; Lybrand v. State Co., 179 S.C. 208, 184 S.E. 580, 104 A.L.R. 1118 (1936); Paducah Newspapers v. Bratcher, 274 Ky. 220, 118 S.W.2d 178 (1938); Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 52 A.L.R. 1432 (1927). The defendant urges that the more enlightened, modern view is contrary to Nixon, a 1907 case, and that no Minnesota case has passed upon the question since. However, the Advisory Committee Comment following the section on criminal defamation, Minnesota Criminal Code, 1963, Minn.Stat. § 609.765, says with respect to Subd. 3(4) therein (superseding Minn.Stat. § 619.55), which holds a violation of the Act justifiable if * * "The communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings;" that:

"It was not intended to change the holding in Nixon v. Dispatch Printing Co., 1907, 101 Minn. 309, 112 N.W. 258, to the effect that Minn.St. § 619.55 did not warrant a

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