Langford v. Vanderbilt University

• Decision Date: 03 February 1956
• Citation: 3 McCanless 389,287 S.W.2d 32,199 Tenn. 389
• Parties: , 199 Tenn. 389 Pamela LANGFORD, a Minor, by next friend, Robert L. Langford, and Mrs. Robert L. Langford and Robert L. Langford v. VANDERBILT UNIVERSITY et al. (six cases).
• Court: Tennessee Supreme Court

Page 32

287 S.W.2d 32

3 McCanless 389, 199 Tenn. 389

Pamela LANGFORD, a Minor, by next friend, Robert L. Langford, and Mrs. Robert L. Langford and Robert L. Langford v. VANDERBILT UNIVERSITY et al. (six cases).

Supreme Court of Tennessee.

Feb. 3, 1956.

Sims Crownover, and Thomas G. Watkins, Nashville, for plaintiffs in error.

Bass, Berry & Sims, Nashville, for Vanderbilt University.

Louis Farrell, Jr., and K. Harlan Dodson, Jr., Nashville, for Benson Printing Co.

Stokes & Trimble, Nashville, for Ormonde Plater.

TOMLINSON, Justice.

Mrs. Langford caused the issuance of a summons wherein she sought damages from Vanderbilt University and others for an alleged libel. Her declaration filed at the same time alleged the offending publication to have appeared in the January 28, 1955 edition of that Vanderbilt University newspaper known as 'Vanderbilt Hustler' edited, etc., by students operating under the direct supervision and control of the University. This declaration states in detail the contents of the publication alleged to be grossly libelous per se.

A similar proceeding and declaration was at the same time instituted in behalf of her daughter, Pamela, an infant, by her father, Mr. Langford, an active minister of the gospel, his church being in a community wherein the Vanderbilt Hustler is circulated. At the same time he instituted similar proceedings alleging the publication to have been a libel per se of him.

Each of the defendants separately demurred, assigning several reasons why the action, in their opinions, could not be maintained. The Circuit Court sustained each demurrer without referring particularly to any of these reasons. Each case is here on the appeal in error of each plaintiff. Each cause of action has in common with the others much that is material to the disposition of the appeal. The merits of all the appeals will, therefore, be herein determined.

By Chapter 47 of our Public Acts of 1955, effective February 18, 1955, it is provided that before the institution of a suit for damages by reason of a libel appearing in a newspaper, five days' written notice of the article, its defamatory elements, etc., must be given to the newspaper so that an opportunity for retraction before suit is instituted might be afforded; that in the event of failure to give such notice the person, if libeled, shall be allowed to recover under the conditions stated in this statute 'only actual, and not punitive, damages'. The summons issued and the declaration was filed in each of these cases on May 4, 1955, and without this notice having been given. One ground of each demurrer is that the suit should be dismissed for failure to give this notice.

Each plaintiff-in-error counters with the insistence that Chapter 47, in so far as it may be given such retrospective effect, is unconstitutional in that it divests plaintiff of a right which had vested prior to the enactment of that statute. The rejoinder of each defendant is that this Act is procedural; must be given a liberal construction, thus a retrospective effect.

The only right which Chapter 47 purports to take away from a libeled person is the right to recover punitive damages under the conditions stated by this statute when the required notice has not been given prior to the institution of suit. Punitive damages, as distinguished from actual damages, are allowed as a mere penalty imposed upon the libeler in accordance with whatever may be regarded properly as the extent of the enormity of his offense, and as an example to deter others of like inclination. Saunders v. Baxter, 53 Tenn. 369, 384-385. Thus, Chapter 47 only takes away the privilege of recovering such penalty imposed upon the libeler.

'A mere penalty never vests but remains executory'. May Co. v. Anderson, 156 Tenn. 216, 221, 300 S.W. 12, 14. The giving, therefore, of a retrospective effect to Chapter 47 does not amount to the deprivation of these plaintiffs-in-error of a vested right.

Nor is it consonant with a normal construction of legislative intent, as gathered from the four corners of this statute, to conclude that the General Assembly meant to give a libeler the opportunity to escape the penalty imposed upon him under the conditions stated in the statute if the libel be perpetrated after the enactment of the statute, but at the same time intended to withhold this opportunity of escape from penalty for a libel perpetrated prior to the passage of the act, but as to which no suit had been instituted. The intention, therefore, to give a retrospective effect to this statute seems to be implied necessarily by the very provisions of the Act and its purpose.

Chapter 47 does not purport, upon failure to give this notice, to deprive the libeled person of the actual damages, as defined, for instance, by Saunders v. Baxter, supra, flowing from a per se libel. The failure, therefore, to give the notice required by this 1955 statute did not deprive these plaintiffs-in-error of their vested right to maintain this action for actual damages.

Another ground of demurrer is that the publication in the Venderbilt Hustler cannot be regarded as libelous in any view of the matter, because that publication simply narrated accurately, and without more, the contents of a previous declaration filed by each of these plaintiffs-in-error for an alleged libel per se.

What had happened is that another student publication under the auspices of Vanderbilt University, and known as 'The Chase', had carried a page on which were four pictures with a legend under each, and a general legend applicable to all four pictures. All the legends were authored by 'The Chase'. One of these four pictures was a photograph of Pamela, the daughter of Mr. and Mrs. Langford, taken when she was two years old. She was four at the time of the Chase publication. The publication did not identify Pamela by name, nor any of the Langfords.

Based upon these four pictures and the legends mentioned, suits were instituted in the Circuit Court of Davidson County by (1) Mr. Langford, and (2) Mrs. Langford and (3) in behalf of Pamela. Each of these actions made as a part of its declaration the page of the Chase newspaper carrying the four pictures and the legends.

The subsequent publication in the Hustler, and upon which each of the three Hustler libel suits is grounded, purported to carry as a news item the institution of these suits against Vanderbilt University and 'The Chase' newspaper. As a part of this news item the Hustler reproduced the aforesaid pictures and legends in The Chase, and quoted certain portions of the declaration wherein was alleged the presumed nature of the libel per se attributed to 'The Chase' newspaper. This news item in the Hustler made certain observations of its own, and employed quite attention-attracting headlines. At that item no action had been taken in the Chase libel suits, other than the issuance of the summons and the filing of the declarations.

The insistence of defendants-in-error is that the Hustler merely reported fairly and accurately as a news item the existence of the suit in the Chase case, and the grounds upon which it was brought, as declared in the declarations filed, and reproduced the page of the Chase, including pictures and legends thereon by reason of which the declaration alleged, in fact, libels per se; that it expressed no opinion as to the merits of the suits 'and no comment of any sort was made by the newspaper'. To so report a pending suit, the defendants-in-error say, is not a libel.

Plaintiffs-in-error, on the other hand, insist that 'the right to publish without liability for damages, does not extend to mere pleadings filed in court, * * * upon which there has been no judicial action'. They further insist that if publication is made when such is the status of the previous suit, then, in the language of the brief of plaintiffs-in-error, 'it is not the truth of the fact that a publication or repetition was made, but the truth of the libelous matter contained therein.'

For a long time the rule undoubtedly was that insisted upon by plaintiffs-in-error, as immediately hereinabove stated. That fact was recognized in Campbell v. New York Evening Post, decided in 1927, and reported in 245 N.Y. 320, at page 325, 157 N.E. 153, at page 155, 52 A.L.R. 1432, at page 1435. There the Court noted that

'numerous cases in England and in the states hold that the rule of privilege does not apply to pleadings which, though filed, have not yet received judicial notice.'

After pointing out the incongruous results which follow such rule, the Court said that to publish accurately and without malice that a certain suit has been brought against a defendant charging him with fraud or other offenses reflecting upon his character have become so general a practice 'that the public has learned that accusation is not proof, and that such actions are at times brought in malice to result in failure'.

The opinion then concluded that it would disregard these precedents and 'start with a rule of our own, consistent with practical experience'. It then held that publication of matters contained in a filed pleading is privileged if the report is accurate and fair and free of malice, notwithstanding the fact that no judicial action had been taken on the pleading.

The South Carolina case of Lybrand v. State Co., decided a number of years later, and reported in 179 S.C. 208, 184 S.E. 580, 104 A.L.R. 1118, followed the holding in Campbell v. New York Evening Post, supra. In the annotation following the report of that case it is said, 104 A.L.R. at page 1124, that Campbell v. New York Evening Post, 'undoubtedly exercised a profound influence thereafter, and the reasoning employed seems to have received approval in numerous instances where the question was not considered foreclosed'. It is insisted in behalf of the Langfords that the question is foreclosed in this jurisdiction by American Publishing Co. v. Gamble, 115...