Loveless v. Graddick

• Citation: 325 So.2d 137,295 Ala. 142
• Parties: Ralph LOVELESS v. Charles GRADDICK et al., etc. SC 1307.
• Decision Date: 04 December 1975
• Court: Alabama Supreme Court

Page 137

325 So.2d 137

295 Ala. 142

Ralph LOVELESS v. Charles GRADDICK et al., etc.

SC 1307.

Supreme Court of Alabama.

Dec. 4, 1975.

Cunningham, Bounds & Byrd and John T. Crowder, Jr., Mobile, for appellant.

Wilkins & Druhan and Michael A. Wermuth, Mobile, for appellees.

BLOODWORTH, Justice.

This is an appeal from a summary judgment granted the defendants in an action of libel.

Plaintiff Loveless and defendant Graddick were both candidates for the office of District Attorney of Mobile County in the general election held November 5, 1974. ¹ On October 22, 1974, plaintiff sued defendants Graddick, M. Rout Hudson and certain fictitious persons for libel claiming $100,000 damages. The complaint charged that defendants falsely and maliciously published, or caused to be published, an advertisement in THE MOBILE PRESS REGISTER on Sunday, October 13, 1974, of and concerning the plaintiff, and with intent to defame plaintiff, the following part of said ad being in large, conspicuous print:

'RALPH LOVELESS CANDIDATE FOR DISTRICT ATTORNEY FACES FRAUD CHARGES'

'The voters of Mobile County should insist that Loveless withdraw from the race.'

'Pd. Pol. Adv. by M. Rout Hudson, Mobile, Ala.'

A copy of the entire article is attached to the complaint. A copy hereinafter appears.

Plaintiff alleges that the article By innuendo stated plaintiff was facing criminal prosecution for fraud, which statement was and is false. Plaintiff further avers 'That the natural and probable implication from the article in the minds of the average lay reader was that the Plaintiff was presently being prosecuted for criminal fraud which was and is false.' Then follow averments of damage to reputation and standing in the community, etc. The advertisement is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A motion for leave to depose defendant Graddick before the election was denied. (Graddick's deposition was ultimately taken January 21, 1975.) Graddick's motion to dismiss the complaint was likewise denied. After several requests for admissions by defendants and answers thereto by plaintiff, defendants filed answer: denying the article is libelous per se or per quod; pleading truth as a defense; pleading privilege; and, pleading the absence of malice within the ambit of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964). The defendants moved for summary judgment. A response to the motion for summary judgment was filed by plaintiff.

On April 11, 1975, motion for summary judgment was granted and the complaint dismissed with prejudice. Hence, this appeal.

The motion for summary judgment is supported by pleadings and exhibits, requests for admissions and answers thereto, deposition of defendant Graddick, an affidavit by Graddick and an affidavit by plaintiff Loveless.

From these documents it appears that defendant Graddick: does not recall who requested information regarding the suit from the Chattanooga, Tennessee, Chancery Court; denies he was concerned that the article was libelous but admits that he consulted with five lawyers before running it; states he had no knowledge of any pending criminal charges of fraud against plaintiff; states he doesn't know if the charges are true or not-all he knows is that the charges are presently pending; states he left it to the voters to decide on November 5th (the election date) whether they thought plaintiff should withdraw from the race by voting for him (Graddick); denies that he intended to imply that plaintiff had done something wrong; states it did not occur to him that lay people would read the headlines and get the idea that plaintiff was facing criminal fraud charges; denies intending to hurt plaintiff by publishing the article; states he published it 'to inform the people of Mobile County of the man's situation in Tennessee, going toward, again, his integrity'; states he had no knowledge that any information contained in the ad was false; states he published the ad in good faith solely to inform the electorate of the background of one of its candidates.

It further appears from the admissions of fact: that the paragraph in the complaint '7 Alabamians are Defendants in Civil Suit' and photocopy of such article is a genuine photocopy of an article appearing in THE MOBILE PRESS-PEGISTER on March 23, 1972; that the plaintiff was a party cross-defendant in the suit in Chancery Court in Chattanooga, Tennessee, and, that the 'Amendment to Cross-claim,' in that suit, alleges, inter alia, that plaintiff and certain others had perpetrated a fraud upon the cross-plaintiff in the suit.

Plaintiff-Loveless contends on this appeal that the trial judge erred in granting summary judgment because:

First, there is a genuine issue as to a material fact-namely, the Interpretation to be placed on the 'headline' and the entire article by the average lay reader as to whether it imports a criminal charge of fraud;

Second, there is a genuine issue as to a material fact-whether the article is True in 'all material respects since the headline, and the article as a whole, may be said to impute' that Loveless was facing criminal fraud charges;

Third, the 'privilege' of New York Times v. Sullivan would be inapplicable if plaintiff-Loveless had been permitted to show 'actual malice' to the jury and granting summary judgment is inappropriate to dispose of these issues.

Defendants-Graddick and Hudson answer these contentions, thusly:

First, 'truth' is a complete defense. All the documents reveal that all the material which went into the ad was, in fact, true-nothing implied Loveless was facing criminal charges-Loveless himself admitted being a defendant in the pending lawsuit wherein he, and others, were charged with fraud-thus, there was no genuine issue as to any material fact;

Second, the ad showed on its face that the charges were 'civil' and Loveless cannot enlarge on the plain meaning of the words, by innuendo or implication, beyond their natural and obvious import;

Third, there is the issue of the constitutional 'privilege' under New York Times v. Sullivan. Loveless and Graddick were candidates for District Attorney, and as such, fall within the ambit of the 'Times Rule' that public officials cannot recover for libel unless proof is offered that the publication was made with 'actual malice'-'that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' It is contended by defendants-Graddick and Hudson that all the evidence offered on summary judgment is uncontradicted and is to the effect that defendants neither knew that any of the matter published was false nor did they recklessly disregard any matter of fact coming to their attention concerning the material used in the ad. Defendants conclude that there is not a scintilla of evidence to warrant the case going to a jury.

Having set out the contentions of the parties, we move to consider the fundamental issue presented to us by this appeal as to whether there is a genuine issue as to any material fact under Rule 56, A.R.C.P., Summary Judgment. Put differently, was summary judgment appropriate?

In order to determine this issue we must first consider the following threshold questions.

First, may the ad be said to 'impute' criminal fraud, and, if so, is there then presented a genuine issue on any material fact?

Second, assuming, arguendo, that the ad does impute criminal fraud, nevertheless, does this case fall within the 'privilege' of New York Times v. Sullivan and, absent an allegation or showing of actual malice, is there then presented a genuine issue as to any material fact?

It is appropriate that we set out those basic principles which govern us in our review of the granting of summary judgment.

The party moving for summary judgment must clearly show, i.e., has the burden to show, that the other party could not recover 'under any discernible circumstances.' Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975); see also, Ray v. Midfield Park, Inc., 293...