Kidder v. Anderson

• Decision Date: 21 March 1977
• Docket Number: No. 11205,11205
• Citation: 345 So.2d 922
• Parties: 2 Media L. Rep. 1645 Howard A. KIDDER v. Bob ANDERSON and Capital City Press, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 922

345 So.2d 922

2 Media L. Rep. 1645

Howard A. KIDDER v. Bob ANDERSON and Capital City Press, Inc.

No. 11205.

Court of Appeal of Louisiana, First Circuit.

March 21, 1977.

Rehearing Denied May 9, 1977.

Writ Granted June 17, 1977.

Robert L. Kleinpeter, Baton Rouge, of counsel for plaintiff-appellee Howard A. Kidder.

Frank W. Middleton, Jr., Frank M. Coates, Jr., W. Arthur Abercrombie, Jr., Baton Rouge, of counsel for defendants-appellants.

Before SARTAIN, COVINGTON and LOTTINGER, JJ.

COVINGTON, Judge.

This is a defamation action by Howard A. Kidder, Acting Chief of Police, against Bob Anderson, newspaper reporter, and Capital City Press, Inc., the owner and publisher of the Morning Advocate and State Times newspapers and the employer of Bob Anderson, for damages in the amount of five and one-half million dollars, arising out of several newspaper articles and editorials appearing in the newspapers, in one or the other or both, from June 12, 1974, through August 8, 1974. The plaintiff alleged that the 'offending statements' published by the defendants were calculated to degrade him and to hold him up to public ridicule in that they depicted him, a law enforcement officer, as operating a house of prostitution, as engaging in illicit dealings with barroom proprietors and gamblers, and as using the influence of his office for personal gain.

The defendants denied that the 'offending statements' were defamatory. They also expressly pleaded constituional rights under the First Amendment of the United States Constitution, and truth, as defenses.

During the course of the proceedings, the defendants moved for partial summary judgments, primarily based on the failure of the plaintiff to show sufficient evidence of 'actual malice' to let the case go to the jury.

The motions for partial summary judgment were denied by the lower court. Then, applications for supervisory writs were made to the Court of Appeal and the Supreme Court for review of the summary judgment denials. Both appellate courts declined the applications for writs, finding no error in the lower court's finding of genuine issues of material facts in dispute.

The case then proceeded to trial by jury. After an eight-day trial, the jury returned a verdict in favor of the plaintiff, awarding damages in the amount of $400,000.00. From the judgment implementing the jury's verdict, the defendants have suspensively appealed.

SPECIFICATION OF ERROR NO. 1

The trial court properly denied both motions for partial summary judgment. It is only when there is no genuine issue as to a material fact that the mover is entitled to summary judgment. LSA-C.C.P. art. 966. In ruling on such a motion, it is not the function of the lower court to determine the merits of the issues raised; its function is to determine whether or not there is a genuine issue of material fact. Metoyer v. Aetna Insurance Company, 278 So.2d 847 (La.App. 3 Cir. 1973).

In Batson v. Time, Inc., 298 So.2d 100 (La.App. 1 Cir. 1974). Writ den., La., 299 So.2d 803, we had occasion to consider a motion for summary judgment; and, in sustaining the lower court's rejection of a motion for summary judgment, we acknowledged 'the chilling effects of a lengthy and costly trial' on First Amendment rights, and then remarked:

'Equally pertinent, however, is the well established rule that in cases of this nature, the courts are most careful to protect plaintiff's right to jury trial, when disposing of a motion for summary judgment pursuant to F.R.Civ.P. Rule 56. In applying Rule 56, the courts note the Rule's provision that, on trial of a motion for summary judgment, plaintiff may not rely upon his pleadings but must, by affidavit or otherwise, set forth facts and allegations which establish the existence of a genuine issue of material fact. Also in applying Rule 56, the courts grant summary judgment where the pleadings, depositions, answers to interrogatories, affidavits and admissions disclose the absence of a genuine issue of material fact. 'More importantly, the Federal cases have repeatedly held that in a defamation action, as in other actions, the adverse party against whom summary judgment is requested is entitled to have all the evidence, depositions, affidavits and inferences reasonably drawn from them, viewed in the light most favorable to him in determining whether he has shown the existence of a genuine issue of material fact.'

The guidelines for the use of the summary judgment procedure as authorized by LSA-C.C.P. art. 966 are well established. They are succinctly stated in the case of Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3 Cir. 1966), writ ref., 249 La. 724, 190 So.2d 236, as follows:

'The courts have noted repeatedly that the summary judgment remedy is not a substitute for a trial and may not be resorted to when there is a genuine issue of material fact which must be resolved. In passing upon a motion for summary judgment, the function of the court is not to determine the merits of the issues raised, but rather only to determine whether or not there is a genuine issue of material fact. To obtain a summary judgment it is not sufficient to prove that it is unlikely that the plaintiff may recover, nor that the showing then made preponderantly indicates there is no liability . The burden of showing that there is not a material factual issue is upon the mover for summary judgment. All doubts are to be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts.'

Turning to the federal jurisprudence for guidance, we find the Court of Appeals, Ninth Circuit, in Guam Federation of Teachers, Local 1581, A.F.T. v. Ysrael, 492 F.2d 438 (C.A. 9 1974), stated:

'However, with respect, we are not persuaded by the second phase of Judge Wright's analysis in Wasserman which suggests that in deciding these motions, the trial court should judge the credibility of witnesses and draw its own inferences from the evidence. We think that in a libel case, as in other cases, the party against whom a motion for summary judgment, a motion for a directed verdict, or a motion for judgment notwithstanding the verdict is made is entitled to have the evidence viewed in the light most favorable to him and to all inferences that can properly be drawn in his favor by the trier of fact. We think, too, that in such cases it is not only not the duty of the judge, or of this court of appeal, to weigh the credibility of the evidence, or to draw inferences in favor of the moving party (except, of course, where no contrary inference can legitimately be drawn), but that neither the judge nor this court on appeal has the authority to weight credibility or to choose among legitimate inferences in such cases.

'The Standard against which the evidence must be examined is that of New York Times and its progeny. But the Manner in which the evidence is to be examined in the light of that standard is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury, and it is error to grant a directed verdict, as the trial judge did in this case.'

We also find the language of Whitaker v. Coleman, 115 F.2d 305 (C.A. 5 1940), particularly applicable to a case of this nature:

'Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right to trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determing whether such evidence exists.'

We think too that 10 Wright and Miller, Federal Practice and Procedure, Civil section 2712, pp. 387--389, Rule 56, places the summary judgment in proper perspective:

'Since its impact is rather drastic, summary judgment must be used with a due regard for its purpose and should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues. As stated by the Tenth Circuit in Avrick v. Rockmont Envelope Company (155 F.2d 568, 571, C.A. 10 1946): 'The power to pierce the flimsy and transparent factual veil should be temperately and cautiously used lest abuse reap nullification.'"

With the foregoing law in mind, we have reviewed the pleadings exhibits, affidavits and other evidence available for consideration by the court on the motions for summary judgment. The affidavits filed by movers do not measure up to the standard set out by LSA-C.C .P. art. 967. They fail to affirmatively show that the facts set forth in the affidavits were matters within the personal knowledge of the affiants. We said in Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439 (La.App. 1 Cir. 1972):

'Therefore, when mover relies on the personal knowledge of an affiant to establish the nonexistence of a genuine issue of fact and fails to assert facts which would affirmatively show the affiant's competency to testify to such facts, his proof of the same fails by reason of the insufficiency of the affidavit. LSA-C.C.P. Art. 967.'

We find that the proof of the mover fails to establish the nonexistence of genuine issues of fact in the instant case.

We agree with the trial judge that there were genuine issues of material facts even if we accepted movers' affidavits, and that it was proper for the case to go to trial by jury. The plaintiff's evidence was sufficient to meet the New York Times standard. We interpret the Guam case as completely refuting the view of Judge Wright in Wasserman v. Time, Inc., 138 U.S.App.D.C . 7, 424 F.2d 920 (1970), followed in Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5 Cir. 1970). There is no acceptance by the Federal courts that the court must weigh or re-weigh the evidence or...