McNair v. Hearst Corporation, 71-2839.

• Decision Date: 03 May 1974
• Docket Number: No. 71-2839.,71-2839.
• Citation: 494 F.2d 1309
• Parties: Lee R. McNAIR, Plaintiff-Appellant, v. The HEARST CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

494 F.2d 1309 (1974)

Lee R. McNAIR, Plaintiff-Appellant, v. The HEARST CORPORATION, Defendant-Appellee.

No. 71-2839.

United States Court of Appeals, Ninth Circuit.

April 4, 1974.

Rehearing Denied May 3, 1974.

Gerald F. Collier (argued), Seattle, Wash., for plaintiff-appellant.

Daniel J. Riviera (argued), Ashley, Foster, Pepper & Riviera, Seattle, Wash., for defendant-appellee.

Before MERRILL and KOELSCH, Circuit Judges, and JAMESON,^* District Judge.

OPINION

MERRILL, Circuit Judge:

This appeal is taken from a grant of summary judgment in favor of the appellee in a libel suit brought by appellant with jurisdiction founded on diversity of citizenship. Upon this appeal the question is whether issues of fact remained for resolution at trial. In our judgment they did. Accordingly, summary judgment was premature.

In its July 28, 1970, issue the Seattle Post-Intelligencer carrier a news article on its front page, the headline and first two paragraphs of which read:

"THE HIGH COST OF A DIVORCE

Five years ago, Barbara Evans hired a lawyer to represent her in a divorce action.

Today the lawyer owns the home, worth between $55,000 and $65,000, which Mrs. Evans received as part of the 1966 divorce settlement * * *."

A reasonable reader might well have read this portion of the article as stating that Barbara Evans had, as the hire of a divorce lawyer, parted with property worth to her between $55,000 and $65,000. This was not the fact. Appellant is the lawyer about whom the article was written. He had acted for an agreed fee of $3,000. The wife's loss of her property was due not to the cupidity of her attorney but the failure of her divorced husband to meet his financial obligations to her. All this would have appeared to the reader had he read the article through to its conclusion. It continued on from the quoted portion for about fifty more paragraphs and on three different pages of the newspaper.¹ Appellant was not mentioned in the first nine paragraphs nor on the first page at all. However, his name was given and repeated twenty-six times throughout the balance of the article. Regarding the article as defamatory he brought this suit for libel.

Summary judgment for appellee was based on the proposition that the article read in its entirety was actually true. In our judgment this does not suffice. Under Washington law whether an article is true will depend on what it is read to say — on how it would ordinarily be understood by persons reading it. Tilton v. Cowles Publishing Company, 76 Wash.2d 707, 459 P.2d 8, 18 (1969). The question here, as we view it, is whether the article as a whole can be said effectively to have eliminated the impact of any false impression created at the outset. In our judgment this question cannot here be answered as matter of law and remains a question for the jury.²

Appellee contends that even so, the subject-matter of the article — divorce and its cost — is a matter of general public concern, and, under Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the publication must have been with actual malice if liability is to follow. Appellee contends that the record is wholly devoid of evidence of malice. We cannot agree.

The question as we view it is whether appellee, knowing of the falsity of the impression the headline and first two paragraphs would make upon the reader, actually intended that the article should leave that impression. In our judgment an inference to this effect is available to the jury. After all, what a newspaper regards as newsworthy usually...