Journal Pub. Co. v. McCullough, 97-CA-00447-SCT.

• Decision Date: 05 August 1999
• Docket Number: No. 97-CA-00447-SCT.,97-CA-00447-SCT.
• Parties: JOURNAL PUBLISHING COMPANY and Sid Scott v. Derwood McCULLOUGH.
• Court: Mississippi Supreme Court

743 So.2d 352

JOURNAL PUBLISHING COMPANY and Sid Scott v. Derwood McCULLOUGH.

No. 97-CA-00447-SCT.

Supreme Court of Mississippi.

August 5, 1999.

Rehearing Denied October 7, 1999.

Thomas Wicker, Tupelo, Attorney for Appellant.

Grady F. Tollison, Jr., Oxford, Kenneth M. Burns, Okolona, Kenna L. Mansfield, Jr., Jackson, E. Farish Percy, Oxford, Attorneys for Appellee.

BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.

BANKS, Justice, for the Court:

¶ 1. This is a libel case in which a jury awarded actual and punitive damages to a former chancery clerk where the newspaper printed a story revealing that a truck seized in a drug arrest was registered to him. We conclude that, under the applicable standards for libel involving a public official as dictated by the First Amendment to the Constitution of the United States, the plaintiff failed to adduce sufficient evidence to allow a reasonable jury to conclude that the reporter and newspaper entertained substantial doubt as to the veracity of the story. Accordingly, we reverse the judgment of the circuit court and render judgment for defendants.

I.

¶ 2. This is a case in which the plaintiff, Derwood McCullough, alleged that the defendants, Journal Publishing Company (Journal) and Sid Scott, libeled him in articles published on July 16 and 17, 1991.¹ At the time of publication, McCullough was the Chancery Clerk of Chickasaw County, and Sid Scott was an employee of Journal Publishing Company and a reporter for the newspaper published by Journal, the Northeast Mississippi Daily Journal (Daily Journal).

¶ 3. The newspaper articles in question concerned a Chickasaw County drug bust which took place on the morning of Monday, July 15, 1991. Officers arrested five people in connection with this bust, including Earl Gladney and his wife Gail. Four vehicles were seized by law enforcement officials, including a 1978 Ford pickup truck which, it turns out, had been purchased by Earl Gladney from McCullough on June 24, 1991.

¶ 4. Gladney had signed an Application for Certificate of Title on that day. According to McCullough, the truck had been sitting on his property with expired tags and had not been used on the road. He knew Gladney, and had let him take the truck in April or May with the understanding that Gladney would buy it if he could fix it. McCullough never removed the expired tags from the vehicle. In June, Gladney had called McCullough to let him know that he wanted to purchase the truck, and McCullough co-signed the bank note for Gladney for part of the funds to buy the truck.

¶ 5. Sheriff Martin "Mack" Cook brought Gladney and his wife into town after the arrest on the morning of July 15. Gail Gladney told Sheriff Cook that the truck belonged to her husband, Earl. Earl Gladney also stated in an affidavit that he told Cook that he had purchased the truck from McCullough in June. Cook testified, however, that he was doubtful of this claim and ran the tag number through the National Crime Information Center (NCIC) computer terminal.² This check revealed that the truck was registered to McCullough. Due apparently to the delay in the time it takes for a new title to be issued after an application for title is made, the NCIC records also showed that the vehicle was still titled in McCullough's name.³ ¶ 6. McCullough learned of the drug bust sometime after lunch on July 15 and was told by a friend that there was talk that a truck of his was picked up in a drug bust and that "you're fixing to make the news again." After calling his lawyer, McCullough went to the office of Dale Mooneyham, the tax assessor. Mooneyham accessed the same State Tax Commission database as the NCIC computer and produced for McCullough a computer record of a title application signed by Gladney on June 24. This document indicates that the truck was owned by Earl Gladney and that he purchased it on June 24, 1991.

¶ 7. McCullough called Sheriff Cook between 3:00 and 4:00 p.m. and told Cook that he had sold the truck on June 24. He told Cook that he had gotten verification of the purchase from Mooneyham's office and that Cook could do the same if he wanted to. McCullough was angry and demanded that Cook straighten out any incorrect information concerning the ownership of the truck with the media. Specifically, McCullough told Cook to call any news media to whom Cook had given information and to inform them that the truck no longer belonged to McCullough.

¶ 8. Several local reporters, including Kenny Hoblitzell from the Times Post of Houston, Mississippi, had heard of the drug bust soon after it happened. Hoblitzell was at the sheriff's office when Gladney and his wife were brought in at approximately 8:00 a.m. Cook had apparently told some of these media persons that the truck was titled to McCullough. Other reporters, however, contacted the sheriffs office at later times throughout the day. As the day progressed, the sheriffs office became busier and at some point Cook began to give only the tag numbers of the confiscated vehicles, allowing the reporters to investigate the question of ownership for themselves. McCullough v. Cook, 679 So.2d at 629. After Cook received the call from McCullough demanding that he correct the misinformation concerning ownership of the truck, Cook called back only Hoblitzell and a few others to whom he had given McCullough's name.

¶ 9. Sid Scott, a reporter for the Daily Journal, heard about the drug bust and had called the sheriffs office for details some time between 10:00 and 11:30 a.m.⁴ He spoke to Sheriff Cook for ten to twenty minutes, but Cook would not give him the names of the owners of the vehicles. Cook did, however, furnish Scott with the tag numbers of the seized vehicles.⁵ Scott took these tag numbers to another law enforcement agency and had them checked against the records of the State Tax Commission on the NCIC terminal, which revealed that the Ford pickup was registered and titled in McCullough's name. Since Scott had been given only the tag numbers, Scott was not among those who were called back by Sheriff Cook with the information that McCullough's ownership of the truck was disputed.

¶ 10. Scott testified that he tried to call both offices of the chancery clerk that afternoon between 4:00 and 5:00 p.m. for general comments from McCullough, but that he could not get an answer from McCullough, who introduced testimony at trial from one of his employees that she was at the Houston office all afternoon on July 15. She testified that the phones never go unanswered in either office and that no call from Scott was received on that day. McCullough admitted that he did not attempt to call Scott or the Daily Journal on July 15.

¶ 11. The article written by Scott which appeared in the Daily Journal the next day, July 16, 1991, was headlined "Five arrested in Chickasaw County drug bust" and had a tag line above the headline which read "Chancery clerk's truck seized." The body of the story began:

HOUSTON—A three-month-long drug investigation in Chickasaw County led to the arrest of five people Monday morning, and the confiscation of a truck owned by Chancery Clerk Derwood McCullough....

After naming those arrested and the crimes with which they were charged, the article continued:

Four vehicles were confiscated during the raid, Cook said.

One of them, a Ford pickup, is registered to McCullough, Chickasaw County Chancery Clerk, according to records at the state Tax Commission.

The truck registered to McCullough was confiscated from Gladney's mobile home in Van Vleet, Cook said.

McCullough couldn't be reached for comment Monday to explain why his truck was at the scene of the drug bust.

McCullough and Gladney, also known as E.G. Harris, have been linked before on suspected criminal charges.

In September they were indicted on criminal fraud charges in federal court in Oxford.

The federal grand jury accused them of using a loan company they co-owned to finance Chickasaw County's purchase of a front-end loader in July 1988. The indictment charged that the financing was in violation of state conflict of interest laws.

The charges against them were dismissed by U.S. district judge Neal Biggers in February.

The article also featured a "pull quote" in large bold type in the second column of the article, which repeated:

Four vehicles were confiscated during the raid, Sheriff Mack Cook said. One of them, a Ford pickup, is registered to McCullough, Chickasaw County Chancery Clerk, according to records at the state Tax Commission.

¶ 12. At some point after this article appeared, Scott heard from the Associated Press that there might be something wrong with his story and that he should check it out. Scott called McCullough at his office on July 16 and asked him whether the truck belonged to him. McCullough told him that it did not, and the two men had a "spirited" conversation. In the meantime, the State Tax Commission records accessed through the NCIC had been changed to reflect that the vehicle was titled in Gladney's name.⁶

¶ 13. On the following day, Wednesday, July 17, Scott published another article in the Daily Journal. This article was headlined "Clerk: Truck sold before drug bust," and stated:

HOUSTON—A pickup truck found at the scene of a drug bust Monday is registered in Chickasaw County Chancery Clerk Derwood McCullough's name, though the title shows it no longer belongs to him.

McCullough said Tuesday he sold the truck to Earl Gladney of Van Vleet on June 24. Gladney is one of the five people arrested Monday.

Records in the tax assessor's office show the title was transferred Monday, the day of the drug bust, when the 1978 pickup was confiscated.

McCullough said the fact that the title was transferred to Gladney on the day he was arrested is coincidental. It took from June 24 to Monday for the state Tax Commission to record the title in its computer system, he said.

Tax assessor Dale Mooneyham said it's possible for a title transfer to take that

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