Johnson Pub. Co. v. Davis

• Decision Date: 18 August 1960
• Docket Number: 3 Div. 877
• Citation: 271 Ala. 474,124 So.2d 441
• Parties: JOHNSON PUBLISHING CO., Inc. v. Edward DAVIS.
• Court: Alabama Supreme Court

Page 441

124 So.2d 441

271 Ala. 474

JOHNSON PUBLISHING CO., Inc. v. Edward DAVIS.

3 Div. 877.

Supreme Court of Alabama.

Aug. 18, 1960.

Rehearing Denied Dec. 1, 1960.

Amended Court One of the complaint is as follows:

Count One-A, as amended

Plaintiff claims of defendants the sum of $150,000 as damages for that plaintiff avers that defendants falsely and maliciously published in the City of Chicago, Illinois and in the City of Montgomery, Alabama, and throughout the State of Alabama, of and concerning the plaintiff in a magazine or publication entitled Jet in the issue of September 18, 1958, Volume XIV Number 20, pages 6 and 7 in an article entitled Rev. M. L. King's Court Fine Paid By Police Commissioner, the following false and defamatory matter or charges reflecting upon the conduct of the plaintiff, imputing improper conduct to him, and subjecting him to public contempt, ridicule and shame, and prejudicing the plaintiff in his office, profession, trade or business, with an intent to defame the plaintiff:

'Actually, the minister had come to sit in on the courtroom hearing of bus boycott lieutenant Rev. Ralph D. Abernathy, who was pressing charges against schoolteacher Edward Davis, 24.

'Earlier, Davis and attacked Rev. Abernathy with a hatchet and pistol after accusing him of an affair with his (Davis') wife. Held on an attempted murder charge, he was the same Davis who resigned in June from a Greenville, Ala., grade school following charges of having sex relations with students. Montgomery Negroes speculated he was the pawn of persons seeking to embarrass Reverends Abernathy and King.'

And plaintiff further avers that more than five days before the bringing of this action, plaintiff made a written demand for a full and fair and public retraction of the aforesaid false and defamatory matter or charges upon defendants, and each of them; and defendants, and each of them, have failed or refused to publish a full and fair retraction of such charges or matter in as prominent and public a place or manner as the aforesaid charges or matter published as aforesaid occupied;

And plaintiff further avers that he has suffered embarrassment and damages to his character and reputation; that he has been subjected to public contempt, ridicule and shame; that he has been injured and damaged in the lawful pursuit of his office, profession, trade or business, as a proximate result of the aforesaid false and defamatory publication by the defendants; and plaintiff further claims punitive damages; hence this suit.

The following are pleas of the defendant:

2. Defendant admits publication of the matter alleged in the complaint. In justification thereof, defendant alleges that said language is substantially true.

4. Defendant admits publication of the language alleged in the complaint. In justification thereof, defendant alleges that at about the time of the libel, Ralph D. Abernathy was pressing charges against school teacher Edward Davis, who had assaulted Abernathy with a hatchet and pistol after accusing him of having an affair with Davis's wife; that Davis was held on an attempted murder charge, that he did resign from a school in Greenville, Alabama, after charges had been made to the school board that Davis had had sex relations with students; and that certain Montgomery Negroes did speculate that he was a pawn of persons seeking to embarrass Abernathy and King.

5. Defendant admits publication of the language alleged in the complaint. In mitigation thereof, defendant alleges that at about the time of the libel Ralph D. Abernathy was pressing charges against school teacher Edward Davis, who had assaulted Abernathy with a hatchet and pistol after accusing him of having an affair with Davis's wife; that Davis was held on an attempted murder charge, that he did resign from a school in Greenville, Alabama, after charges had been made to the school board tha David had had sex relations with students; and that certain Montgomery Negroes did speculate that he was a pawn of persons seeking to embarrass Abernathy and King.

13. In mitigation, defendant says that, prior to and at the time of the libel complained of, plaintiff received substantial other publicity which damaged him, that said damages are commingled and nondistinguishable with any damages, if any, which may have been caused by defendant's alleged acts and that compensatory damages are therefore too vague and uncertain to be determined in this case.

Jones, Murray & Stewart, Robert E. Varner and Robert B. Stewart, Montgomery, for appellant.

Knabe & Nachman and Godbold, Hobbs & Copeland, Montgomery, for appellee.

STAKELY, Justice.

This is a suit for damages brought by Edward Davis (appellee) against Johnson Publishing Company, Inc., a corporation (appellant), for a libel allegedly published by the defendant in its magazine or publication entitled Jet in the issue of September 18, 1958. There was verdict and judgment for the plaintiff in the amount of $67,500. This appeal followed.

This litigation is the result of a series of events that befell Edward Davis (appellee) a Negro school teacher, age 28, a football and basket ball coach at Lovelace Junior High School in Montgomery, Alabama. He teaches science and physical education. Prior to the occurrence of these events, he was an ex-football star of Alabama State College, an institution for Negro students, and was seeking to improve himself as teacher and coach by working towards a Master's Degree at the University of Indiana.

According to the testimony of Edward Davis, in the latter part of August, 1958, he had difficulties with Rev. Abernathy. These difficulties grew out of the actions of Abernathy with reference to the wife of Edward Davis. He had had sexual relations with his (Davis's) wife. He had made complaints to Abernathy about this matter. Despite his complaints Abernathy persisted. During the summer of 1958 Edward Davis had been in Bloomington, Indiana, working on his Master's Degree at Indiana University. When he returned to Montgomery, he called on Abernathy at the church where Abernathy was pastor in another effort to get him to stop molesting his wife. According to his testimony he entered the church downstairs. He had a pistol in his pocket and a hatchet under his shirt. The hatchet was an old hatchet which he had used while teaching in Greenville, Alabama, to help along with students there to move trees and branches of trees in helping to build a park. It was not his hatchet but it had remained in the bottom of his car. He also had been traveling with a pistol in his car. He did not go directly to the study of Abernathy but had to go through the office of the secretary of Abernathy first. As Davis was entering the office of the secretary she was leaving and he asked the secretary if he might speak to the Reverend a minute. She told him, 'Yes.' The door of the study of Abernathy was ajar. He had the pistol in his pocket which he never took out of his pocket. The hatchet was in his shirt. When he entered the office and the secretary left, he testified that, 'We started conversing about the affair with my wife as I had done previously. He stood up and I started walking around the desk to make him sit down. Dr. Abernathy got to the door and ran down the street. I came outside of the church and put the hatchet down by the back door of the church. I never touched Dr. Abernathy at any time.' A police officer met them at the corner of Union Street and he was picked up by the police and taken down to police headquarters in Montgomery. Subsequently he was booked on a charge of assault with intent to murder. These charges were pressed and sworn out by Abernathy. He was subsequently tried in the Circuit Court of Montgomery and was acquitted.

Edward Davis testified that the statement contained in Jet Magazine which reads, 'Earlier Davis had attacked Reverend Abernathy with a hatchet and a pistol after accusing him of an affair with his (Davis's) wife,' was false. He did accuse Abernathy of having an affair with his wife but he did not attack him with either a hatchet or a gun.

He further testified that when Abernathy stood up, he started to go around the table which was between them to the left. There was a sofa there on the right and it was a tight squeeze to come in there. When Abernathy 'took off that way, he took off out the door.' When he started to stand up I said, 'Sit down' and I made a step towards him in order to get him to sit down. He ran out of the door and when he ran out of the door he slammed it. He ran around the desk on the left side and I was around on the right side. 'When he came out on the left side, he slammed the door and I had to go back around. I never touched Dr. Abernathy at any time but did display the hatchet.' He testified further that he had carried the hatchet to scare Abernathy and the pistol for self defense but he never took the pistol out of his pocket. Abernathy had called his wife on the telephone and wanted to see her that night. As an excuse to her mother, he asked her to do typing for him. This was just an excuse to get her to come to his office. Abernathy did not testify in the case.

When the charges brought against Davis were presented in a preliminary hearing in the Recorder's Court of Montgomery County, the Rev. Martin Luther King was present and was arrested. In an article purportedly reporting on the events surrounding King's arrest, Jet Magazine stated:

'Actually, the minister had come to sit in on the courtroom hearing of bus boycott lieutenant Rev. Ralph D. Abernathy, who was pressing charges against schoolteacher Edward Davis, 24.

'Earlier, Davis had attacked Rev. Abernathy with a hatchet and pistol after accusing him of an affair with his (Davis') wife. Held on an attempted murder charge, he was the same Davis who resigned in June from a Greenville, Ala., grade school following charges of having sex relations with students. Montgomery Negroes sp...