Indianapolis Newspapers, Inc. v. Fields

• Citation: 259 N.E.2d 651,254 Ind. 219
• Decision Date: 05 June 1970
• Docket Number: No. 1067,1067
• Parties: INDIANAPOLIS NEWSPAPERS, INC., an Indiana Corporation, Appellant, v. Robert H. FIELDS, Eugene C. Pulliam, Eugene S. Pulliam, Appellees. S 96.
• Court: Supreme Court of Indiana

Page 651

259 N.E.2d 651

254 Ind. 219

INDIANAPOLIS NEWSPAPERS, INC., an Indiana Corporation, Appellant, v. Robert H. FIELDS, Eugene C. Pulliam, Eugene S. Pulliam, Appellees.

No. 1067 S 96.

Supreme Court of Indiana.

June 5, 1970.

Thomas M. Scanlon and Raymond W. Gray, Indianapolis, for appellant; Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel.

Brunner, Brown & Brunner, Shelbyville, Elmon M. Williams, Greenwood, Felson Bowman, Andrew Jacobs, Sr., Indianapolis, for appellees.

HUNTER, Chief Justice.

Richard M. Givan, Judge, having disqualified himself from participating in this cause and the four remaining judges of this Court participating being equally divided, Norman F. Arterburn, Judge and Donald H. Hunter, Chief Justice are of the opinion that the decision of the trial court should be reversed, while Roger O. DeBruler Now therefore, pursuant to Rule AP. 15(E), the judgment of the trial court is affirmed and the separate opinions of the participating judges herein are as follows:

Judge and Amos W. Jackson, Judge are of the opinion that the decision of the trial court should be affirmed.

DeBRULER, Judge.

This appeal arises from a libel action in the Shelby Circuit Court filed by the appellee, former Marion County Sheriff Robert Fields, against Indianapolis Newspapers, Inc., Eugene C. and Eugene S. Pulliam. Appellee's complaint was in forty-four (44) separate legal paragraphs each one based on different articles and editorials published on forty-four (44) separate days in the Indianapolis Star, a daily newspaper owned by the corporate appellant. The trial commenced on April 18, 1967, and ended June 14, 1967. The parties produced ninety-six (96) witnesses and six hundred sixty-four (664) exhibits. The transcript on appeal runs to seven thousand six hundred fifty-one (7651) pages in eight (8) volumes. A verdict was directed in favor of the two individual defendants and the jury returned a verdict for the appellee on six paragraphs in the total amount of $60,000.00.

The appellee's complaint alleged appellee was libeled in several different respects but the six recovery paragraphs, Nos. 12, 14, 18, 20, 37, 40, all concerned the Reagan case. The basic outline of the facts of the Reagan case are as follows: Elmer Reagan, a fifty-year old, alcholic inmate of the Marion County Jail was admitted to the hospital on July 14, 1965, suffering from injuries received in a beating by another prisoner named George Brown. Reagan died as a result of the beating on August 7, 1965. The appellee who was at that time the Marion County Sheriff, filed charges against Brown on August 13th.

On October 21st, another prisoner named Charles McAdams told Marion County Criminal Court Judge Fife, in an interview in court chambers arranged by appellant's reporter, Rick Johnson, that he witnessed Deputy Sheriff Donovan King beat Reagan on July 14th. On October 22nd, McAdams signed an unsworn statement to that effect and three days later his sentence was changed by Judge Fife to time served and he was released from jail. The prisoner, McAdams, was interviewed on October 26th, by appellee before and after McAdams' testimony before the Grand Jury investigating the charges. Appellee said McAdams repudiated his accusation concerning the deputy. McAdams also repudiated it in open court before Judge Fife on October 28th, and he was thereupon immediately sent back to jail. The Grand Jury report said McAdams' accusations were false and indicted Brown for murder. At the trial of Brown the jury found that Brown in fact attacked Reagan but he was acquitted by reason of insanity.

On October 27, 1965, the Indianapolis Star began the series of articles which became the subject of this suit. The six recovery paragraphs alleged that appellant intentionally or recklessly published articles which implied false accusations against appellee to the effect that he had committed certain crimes, namely, accessory after the fact to murder, intimidating a Grand Jury witness, and malicious prosecution of an innocent man. Each legal paragraph included twelve rhetorical paragraphs, the first eleven of which were identical for all forty-four (44) legal paragraphs. We shall use complaint paragraph twelve, the first recovery paragraph, as an example and we include only rhetorical paragraph twelve from that complaint paragraph.

'12. Sunday, November 7, 1965, defendants maliciously published the printed matter reflected in Exhibit 12, hereto attached, having theretofore maliciously, and with premeditated purpose to so do, composed same so as to cause it to convey the false and defamatory meanings set forth below, when read in full context, and in context with previously published '12. (a), 12(b) and 12(c). Plaintiff, by reference and adoption, incorporates all allegations contained in sub-paragraphs 12(a), 12(b) and 12(c) of Paragraph One, as though same were copied verbatim at this point.'

printed matter, by defendants, as shown by Exhibits 1 through 11, which are published on [254 Ind. 237] the eleven previous days, consecutively, and which contributed to the meanings of Exhibit 12, as hereinafter alleged, and for that purpose are, by reference, made a part of Paragraph Twelve.

The sub-paragraphs referred to are as follows:

'a. That plaintiff's deputies, or members of the Marion County Police Force, over whom plaintiff had direction and supervision, had murdered, or otherwise committed felonious homicide upon one Elmer L. Reagan, then and there a prisoner of the Marion County Jail, and that plaintiff assisted said deputies, as hereinafter alleged, with intent that they would escape punishment.

'b. That in order to assist plaintiff's said deputies, or members of the Marion County Police Force, over whom he had direction and supervision, who had murdered, or otherwise committed felonious homicide upon one Elmer L. Reagan, then and there a prisoner of the Marion County Jail, plaintiff, without probable cause, maliciously attempted to cause an indictment to be found, or otherwise prosecution to be commenced, against one William A. Brown for the aforesaid murder or felonious homicide of said Elmer L. Reagan, or conspired with others for said purpose.

'c. That in order to assist plaintiff's said deputies, or members of the Marion County Police Force, over whom he had direction and supervision, who had murdered, or otherwise committed felonious homicide upon one Elmer L. Reagan, plaintiff corruptly, and by force and threats, endeavored to influence, intimidate and impede a witness, to-wit: Charles P. McAdams, in a certain court of the State of Indiana, to-wit: The Criminal Court of Marion County and the Grand Jury thereof, and, by the same means endeavored to obstruct and impede the due administration of justice therein.'

Thus, to find for appellee on complaint paragraph No. 12 the jury had to find that the articles comprising Exhibit 12, forming the basis for that paragraph, when read in the context of all the previous articles in Exhibit 1 through 11, accused the appellee of one of the above alleged crimes, that the accusations conveyed by the articles were false, that appellant knew they were false or published them with reckless disregard of their falsity, and that appellee's reputation was damaged thereby.

We will confine our discussion for the most part to the first recovery paragraph, complaint paragraph No. 12, since the other five recovery paragraphs involve basically the same legal issues although the evidence is somewhat different for each.

The appellant alleges the following errors:

I. There was insufficient evidence to support the verdicts.

II. The verdicts were contrary to law because inconsistent.

III. The trial court erred in instructing the jury.

IV. The trial court erred in admitting hearsay evidence.

I.

The appellant's first contention is that the evidence was insufficient to support the verdict in several respects. In reviewing a challenge to the sufficiency of the evidence this Court will not weigh the evidence nor determine the credibility of witnesses. We will look to that evidence

most favorable to appellee and the reasonable inferences therefrom, and determine whether that evidence, if believed, is sufficient to support the verdict for appellee. If it is, then the verdict will be affirmed. 2 I.L.E., Appeals, §§ 571, 573, 574.

(A) Appellant claims that there was insufficient evidence that the articles were in fact read as accusing appellee of any criminal acts.

We point out that on this issue, evidence that appellee was personally accused of any one of the three crimes would be sufficient to support the jury verdicts. We believe the evidence was more than ample to permit the jury to find that appellee was personally accused of all three of the crimes set out above in appellee's complaint. The evidence consisted of the articles themselves and the testimony of two witnesses.

There is no question that when read by an ordinary reader in context with the previous articles in the series, the articles comprising Exhibit 12 accused appellee of intimidating McAdams into repudiating his accusations and prosecuting Brown in order to cover up the murder of Reagan by a deputy. (See Appendix for Exhibit 12).

The appellant did not explicitly accuse appellee of the crimes alleged. However, the accusations were clearly implied by what appellant did say and the way it said it, when read in full context. This context was created by the statements explicitly published; the choice of loaded words; the choice of juxtaposition and sequence of ideas; the rhetorical questions; and the cumulative weight of constant repetition. This context cannot be conveyed by paraphrase but we will set out a few of the items reported in Exhibits 1 through 12.

McAdams' story that a deputy killed Reagan was the keystone of the whole attack on appellee. If McAdams' story was true, then any repudiation would have been obtained from him by intimidation or bribery,...