Jones v. Sun Pub. Co., Inc.

Decision Date30 March 1982
Docket NumberNo. 21680,21680
Citation292 S.E.2d 23,278 S.C. 12
CourtSouth Carolina Supreme Court
Parties, 8 Media L. Rep. 1388 James JONES, Appellant, v. The SUN PUBLISHING COMPANY, INC., Respondent.

Stevens, Stevens & Thomas, Myrtle Beach, for appellant.

McCutcheon & McCutcheon, Conway, and Robinson, McFadden, Moore & Pope, Columbia, for respondent.

HARWELL, Justice:

Appellant initiated this suit for libel because respondent published an article which erroneously reported that appellant had pled guilty to charges of copyright infringement. A verdict of $35,000 actual damages was returned by the jury in favor of appellant. Concluding that the evidence failed to establish the respondent's negligence, the trial judge granted the respondent a judgment non obstante veredicto. Appellant alleges it was for the jury to determine whether the publication of the false and defamatory matter was occasioned by any legal fault by the publisher. We agree.

In November 1975, appellant and his father and uncle along with two other individuals were arrested and arraigned on charges of "pirating" stereo tapes in violation of the copyright laws. (Appellant, his father, and his uncle all had the surname Jones.) Respondent reported these events in an article published on November 21, 1975. Two months later, appellant's father and uncle entered guilty pleas as part of a plea bargain which resulted in dismissal of the charges against appellant.

Respondent's reporter telephoned the U. S. Attorney's office and spoke with the attorney who later prosecuted the case against appellant's father and uncle. The respondent then erroneously reported that appellant was among those who had pled guilty. The respondent contended that its reporter garnered the erroneous information from the U. S. Attorney and printed the article in reliance upon the misinformation. However, there was testimony from which the jury may have fairly determined that the information was correctly conveyed to the reporter but erroneously reported by him.

Under settled principles, this Court's scope of review in a case of this nature is limited. In a law case, tried by a jury, the jurisdiction of this Court extends merely to the correction of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses there is no evidence which reasonably supports the jury's findings. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). Moreover, in reviewing the propriety of an order granting judgment N. O. V., we are bound to review the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. See cases collected in 3 S. C. Digest, Appeal & Error, Key No. 934(1).

Although the attorney testified that he had confused the various Joneses in his own mind on a previous unrelated occasion, he stated the records were in front of him when he spoke to the reporter on the telephone. Moreover, he testified he did not have a "specific recollection" of what he said to the reporter.

It is undisputed appellant's name did not appear on the public record as having pled guilty. Since the U. S. Attorney could not recall what he conveyed to Monk, the defendant's reporter, over the telephone, but testified that he read the names directly from the record, a jury issue was created as to whether the U. S. Attorney erred in reading the names to Monk or whether the reporter erred in writing them down. The testimony supports the jury's apparent finding that Williams, the U. S. Attorney, read the correct names to Monk but that Monk erred in writing them down.

Moreover, the jury could have also inferred that Monk departed from acceptable standards of reporting when he failed to check the public record himself, rather than relying on information supplied over the telephone. Williams testified the records were open to the public and that Monk could have read from them himself. Additionally, the six day hiatus between the guilty pleas and the publication of the defamatory article negates any rush by respondent to print "hot news". The jury could have reasonably concluded that Monk's failure to make an independent investigation, either by checking the public records himself or contacting the Joneses, with whom he was acquainted, was negligence.

Here, there was no claim or proof that appellant Jones was either a public official or a public figure; hence, under the reasoning of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), appellant was required only to establish some measure of legal fault by the publisher in order to warrant submission of the matter to the jury. The critical language in Gertz is as follows:

"We hold that so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." 418 U.S. at 346, 94 S.Ct. at 3010.

The Gertz Court rationally differentiated between the standard to be applied to public officials and public figures on the one hand, and private individuals on the other. The former, due to their significantly greater access to the communication network, have an infinitely greater ability and opportunity to counteract false statements than do private individuals. Commenting on the private individual's right to recover upon a less stringent standard than that imposed on public officials and public figures, the Court stated:

"He (the private individual) has not accepted public office or assumed an 'influential role in ordering society' ... He has relinquished no part of his interest in the protection of his own good name, consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." (Emphasis supplied). 418 U.S. at 345, 94 S.Ct. at 3010.

This Court has never before extended a qualified privilege to a publisher who inaccurately reports the contents of judicial proceedings. See Lybrand v. The State Co., 179 S.C. 208, 184 S.E. 580 (1936); McClain v. Multimedia, Inc., 275 S.C. 282, 270 S.E.2d 124 (1980). As stated by Prosser, Handbook of the Law of Torts, p. 832 (4th Ed. 1971):

"[I]t has always been held that the report must be a fair and accurate one, and the privilege does not cover false statements of facts as to what has occurred, or mistakes in the names of parties, or the interpolation of defamatory matter, or a one-sided account." (Emphasis supplied).

In Lybrand and McClain, supra, there was no assertion the article in question was not a fair and impartial report of pleadings filed with the court and malice was thus required to defeat the privilege. We recognized, however, the United States Supreme Court holding in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), that liability may attach where a publisher fails to accurately reproduce the contents of public records. McClain, supra, note 2.

The United States Supreme Court in Firestone, supra, soundly rejected the precise argument which the trial judge accepted here. In Firestone, Time Magazine reported on the domestic litigation between an industrial magnate and his estranged wife. Mary Alice Firestone sued her husband for separate maintenance and her husband counterclaimed for divorce on the grounds of extreme cruelty and adultery. The Florida divorce court granted the counterclaim and the divorce, though it did not find that Mrs. Firestone was guilty of either extreme cruelty or adultery. Time reported the divorce was granted on the grounds of extreme cruelty and adultery. Mrs. Firestone was awarded a jury verdict in her subsequent defamation action.

Although the Supreme Court reversed and remanded because the issue of fault had not been submitted to the jury as required by Gertz, it rejected arguments by Time that the New York Times privilege be extended to all reports of judicial proceedings. The Court stated:

"Petitioner would have us extend the reasoning of Cox Broadcasting [v. Cohen, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328] to safeguard even inaccurate and false statements, at least where 'actual malice' has not been established. But its argument proves too much. It may be that all reports of judicial proceedings contain some informational value implicating the First Amendment, but recognizing this is little different from labeling all judicial proceedings matters of 'public or general interest,' as that phrase was used by the plurality in Rosenbloom [v. Metromedio, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296]. Whatever their general validity, use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interest in this area. It was our recognition and rejection of this weakness in the Rosenbloom test which led us in Gertz to eschew a subject-matter test for one focusing upon the character of the defamation plaintiff." 424 U.S. at 456, 96 S.Ct. at 966.

The record here does not support the trial court's conclusion that a public official supplied false information to respondent's reporter. Instead, a jury question was presented as to whom was at fault in publishing the erroneous article. The trial judge was in error in substituting his view of the facts for those found by the jury. We reverse and reinstate the jury verdict.


NESS and GREGORY, JJ., concur.

LEWIS, C. J., and LITTLEJOHN, J., dissent.

LEWIS, Chief Justice (dissenting):

The majority opinion reverses the judgment non obstante veredicto entered by the trial court. It does so by: (1) discovering a jury issue which I am unable to find in this record; and (2) announcing a...

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