McNabb v. Tennessean Newspapers, Inc.

• Decision Date: 22 June 1965
• Citation: 400 S.W.2d 871,55 Tenn.App. 380
• Parties: Earl A. McNABB, Plaintiff in Error, v. TENNESSEAN NEWSPAPERS, INC., Defendant in Error.
• Court: Tennessee Court of Appeals

Page 871

400 S.W.2d 871

55 Tenn.App. 380

Earl A. McNABB, Plaintiff in Error, v. TENNESSEAN NEWSPAPERS, INC., Defendant in Error.

Court of Appeals of Tennessee, Eastern and Western Sections,

En Banc.

June 22, 1965.

Certiorari Denied by Supreme Court March 7, 1966.

Petition to Rehear Denial of Certiorari Denied by Supreme

Court April 4, 1966.

William Waller, D. L. Lansden, and Kenneth L. Roberts, Nashville, Waller, Lansden & Dortch, Nashville, of counsel, for plaintiff in error.

John Jay Hooker, Jr., and William R. Willis, J., Nashville, Hooker, Hooker & Willis, Nashville, of counsel, for defendant in error.

BEJACH, Judge.

This cause, before the Middle Section of the Tennessee Court of Appeals by appeal in the nature of a writ of error, was transferred to the Eastern Section of the Court of Appeals at Knoxville, where it was heard by the Eastern Section and the Western Section sitting en banc; and same is now disposed of by this opinion. In this opinion, the parties will be referred to, as in the lower court, as plaintiff and defendant.

The cause involves a libel suit by Earl A. McNabb, Chairman of the Davidson County Democratic Primary Board, against the Tennessean Newspapers, Inc., growing out of four separate publications made in the Nashville Tennessean, a morning newspaper published in Nashville, Tennessee, by the defendant. The articles claimed to be libelous appeared, during the month of August 1962, as news stories and editorials. They dealt with conduct of the plaintiff, in connection with his duties as Chairman of said Davidson County Democratic Primary Board, in matters relating to the primary election held August 2, 1962. Charges made by the defendant wer based on the theory that the primary election board had the right and the duty to pass on the validity of absentee ballots offered to be cast or permitted by the precinct officials to be cast for candidates for the Democratic nomination for Congressman. Plaintiff, through his counsel, served notice, pursuant to section 23--2605 T.C.A., specifying and alleging that the statements complained of were false and defamatory and libelous in character, thus giving to defendant the opportunity and privilege of retraction; but the defendant ignored this notice.

In its publication of August 9, 1962, plaintiff was charged with having been intent upon validating the worst sort of election day farce, with having made admissions that ought to send him packing into permanent retirement, head hung in shame, and with having falsely signed a certification of absentee ballots without so much as a cursory check of the points required by law, and with demonstrating what he, a lawyer thought of the law, by turning his back on it.

In its publication of August 10, 1962, plaintiff was charged with permitting another breach of trust and with lacking courage, with deserving the brunt of public resentment and public reaction and with being guilty of shameful dereliction of duty and disgracing Nashville.

In its publication of August 14, 1962, plaintiff was charged with committing a shameful travesty on justice, with compounding errors and fraud by placing the stamp of approval on election manipulations, with being cowardly, with running from responsibility, oath of office and plain duty, with ignoring every provision of the election laws, and attempting to throw the mantle of decency over a scheme of corruption and fraud at the ballot boxes, with forcing the mark of legality of fraud clouded absentee ballots, and with counting one candidate into a race he had lost, by not casting aside votes tainted with fraud.

In its publication of August 23, 1962, referring to a resolution adopted by the State Democratic Executive Committee which commended the members of the Primary Board and expressed regret at the unjust criticism they had received, the defendant published the statement that a member of that Committee had, 'best sized up the resolution by saying, 'It's time to quit giving medals to election thieves", whereas, this language had actually been used in a different context and not with reference to the commendatory resolution.

Plaintiff's contention, both at the trial in the lower court, and in this court, was and is, that he, and the board of which he was chairman, had merely ministerial duties with respect to the absentee ballots in question, and, whether such ballots were legal or illegal, had no right to judge them or throw them out, or to review the action of the precinct judges. We think this contention is correct, and in accordance with the laws of this State.

Prior to the election of August 2, 1962, the Primary Board had delivered ballots for the primary election which had been sent to it, to the commissioners of election, who took them, together with the ballots for the general election, to the precinct polling places, where the registrars were required by section 2--314 T.C.A. to have with them at the polls the permanent registration cards showing the signatures of the voters, which were to be compared with the signatures on the envelopes containing the absentee ballots, as provided for in sec. 2--1609 T.C.A.

In the late afternoon of August 2, 1962, Mr. George Barnett, a Nashville attorney, on behalf of Charles Galbreath, a candidate for Public Defender in the general election, and a candidate for nomination as Representative for Davidson County in the Tennessee General Assembly in the Democratic Primary Election, filed two petitions in the Chancery Court. In one of these petitions, he sought an injunction against the Commissioners of Election and their appointees to prevent the counting of absentee ballots in the Second Ward in the general election; and in the other, a similar injunction was sought with respect to absentee ballots in the Second Ward in the primary election. Chancellor Alfred T. Adams issued stay orders which had the effect of stopping the counting of ballots, and notified the parties of hearings to be had on applications for injunction at 9:00 A.M., Monday, August 6, 1962. As a result of the stay order issued in response to the petition involving the primary election, the Second Ward primary election officials were unable to certify the results and accordingly brought in to plaintiff, as Chairman of the Primary Board, the incompleted election material, including poll books, tally sheets and absentee ballots. Some of the envelopes containing absentee ballots had already been opened and the ballots counted before notice of the stay order, and these ballots, together with the accompanying envelopes, were delivered to plaintiff, along with the envelopes which had not been opened. Plaintiff gave each precinct official a receipt for the material delivered to him, and made arrangements for the safekeeping and guarding of the material pending the court hearing. None of the absentee ballots challenged in the petition had been challenged at the polls.

Informal checks demonstrated that Mr. Galbreath had been elected to the office of Public Defender in the general election, without regard to the Second Ward absentee ballots, and that he had become a Democratic nominee for Representative from Davidson County in the Tennessee General Assembly. He thereupon dismissed his suits in the Chancery Court and the stay orders were dissolved. It developed, however, that the contest between Congressman Loser and his opponent, Mr. Fulton, for the Democratic nomination for that office would depend on the Second Ward absentee ballots. The defendant opposed Congressman Loser, and supported his opponent, Fulton. The publications referred to above, with reference to alleged misconduct of plaintiff, were made by defendant in connection with its support of Fulton and opposition to Loser.

On the day after the election, Friday, August 3, 1962, Mr. Galbreath, through his attorney dismissed his petition relating to the general election, but not until Monday morning, August 6, 1962, when the Chancery Court convened, did he dismiss his petition relating to the primary election.

Following the conclusion of the Chancery Court hearing plaintiff convened the Davidson County Primary Election Board. It decided to make a recheck of the machine vote in the Second Ward. This recheck revealed that after correcting certain errors, the outcome of the congressional race would depend on the absentee ballots, most of which had, presumably, been marked in favor of Congressman Loser. Subsequent meetings were held, and plaintiff, as chairman of the Primary Board, permitted Mr. Barrett, representing Fulton, to talk at length in his behalf and to argue his conception of the Board's duties with respect to the absentee ballots. Mr. Cecil Branstetter, representing Mrs. Houk, a member of the Primary Election Board, was also permitted to make speeches along the same line. Plaintiff and Mr. Gilbert, Secretary of the Primary Election Board, attempted to explain to those present, including representatives of the defendant, with citation of authorities, that the Board had merely ministerial duties and had no choice but to return to the precincts the election material for which plaintiff had receipted and let the law take its course.

The Board, after listening to the speeches, voted to schedule staggered meetings at the various precincts on August 9, 1962, where Mr. Fulton could, in an orderly way, challenge each and every absentee ballot which had not previously been opened and counted. The precinct officials rejected some of the ballots, for various irregularities, but counted most of them, preserving the necessary evidence for a contest. The election returns were then duly certified to the Board and the Board, after holding additional public hearings on August 11, 1962, and August 13, 1962, duly certified the returns to the State Democratic Executive Committee whose duty it was to pass upon any election contest which might be filed. Mr. Fulton filed an election contest which was heard...