Miller, Smith & Champagne v. Capital City Press

• Decision Date: 21 May 1962
• Docket Number: No. 5612,5612
• Parties: MILLER, SMITH AND CHAMPAGNE et al., Plaintiffs-Respondents, v. CAPITAL CITY PRESS et al., Defendants-Relators.
• Court: Court of Appeal of Louisiana — District of US

Page 462

142 So.2d 462

MILLER, SMITH AND CHAMPAGNE et al., Plaintiffs-Respondents, v. CAPITAL CITY PRESS et al., Defendants-Relators.

No. 5612.

Court of Appeal of Louisiana, First Circuit.

May 21, 1962.

Certiorari Denied June 29, 1962.

Taylor, Porter, Brooks, Fuller & Phillips, by Frank W. Middleton, Jr., and Frank M. Coates, Jr., Baton Rouge, for defendant-relator.

Dodd, Hirsch, Barker, Avant & Wall, by John L. Avant, Baton Rouge, for plaintiff-respondent.

Before ELLIS, HERGET, and MILLER, JJ.

ELLIS, Judge.

This matter is before the court as a result of a writ of certiorari having been granted on December 13, 1961 in order that we might have the benefit of the entire record in the case which all counsel agreed was necessary in order that we might fully understand the factual background which they believed would be of material assistance in resolving the issues before the court.

This is a libel action for damages allegedly suffered by plaintiffs, the architectural firm of Miller, Smith and Champagne, and the individual members of said firm, based upon the publication by the Capital City Press of an article in the State Times newspaper of August 26, 1960. Originally there were several defendants to the lawsuit but the suit against all others except Capital City Press was dismissed on exception of venue and improper cumulation of actions.

Sometime prior to August 26, 1960 the East Baton Rouge Parish School Board let a contract for the construction of the Lee Junior-Senior High School in the City of Baton Rouge, and the architectural and engineering services for this project were performed by plaintiffs under a contract with the school board of East Baton Rouge Parish. The general contractor in charge of construction was Ross E. Cox.

It is admitted and shown that portions of the school were damaged as the result of having been subjected to flooding, and that in March or April of 1960, the gymnasium floor was extensively damaged as the result of a rupture of a hot water line which had been installed by Bernhard Plumbing Company, sub- contractor under the general contractor, Ross E. Cox, beneath the floor. Hartford Accident and Indemnity Company as the liability insurer of Bernhard Plumbing Company obtained an engineering report from the firm of Dawson, Gilbert and Pilcher for the purpose of ascertaining the cause of the rupture of the hot water line. However, prior to obtaining the above report, the Hartford Accident and Indemnity Company obtained a report from Shilstone Testing Laboratory for the same purpose.

Mrs. Martha Wilson, a reporter for the Capital City Press, learned of the existence of the Dawson, Gilbert and Pilcher report and contacted Mr. J. R. Gilbert to inquire as to its contents, but was advised by Mr. Gilbert that he had prepared the report for a client, and that it was confidential and he could not release information in the report to her without violating his professional ethics.

On the date of August 26, 1960, Mrs. Wilson, in collaboration with Mrs. Donna Mulhearn Lynch, wrote an article pertaining to the flooding at the Lee High School and we quote that portion pertinent to the issue involved:

'James R. Gilbert of Dawson, Gilbert & Pilcher confirmed to the State Times that the engineers had prepared a report for Hartford Indemnity Co. but, said Gilbert 'our professional ethics won't permit us to reveal the contents.' An absolutely reliable source, however, released the following information from the report to the State Times:

'1. The beam walls of the symnasium go at least 2 1/2 feet into the ground on either side of the gymnasium floor. the (sic) there is no underground drainage system permitting water to drain of in the event of pipes bursting because of overheating, a hard freeze, or accident. Any water released under the floor is trapped by the beam walls going into the ground and has no place to go but to rise into the flooring. Soil borings made right outside the gym walls right after the pipe exploded revealed that the ground outside was perfectly dry, the report states, indicating that there is no way for water under the floor to drain off '2. There is no provision in the design for the expansion and contraction of water lines under the floor, the report continues. The design did not call for placing the pipes in conduits which would have permitted their being pulled out, repaired and returned without ripping up the floor.' ¹

As can be seen, Mrs. Wilson purportedly quoted from 'an absolutely reliable source' information given her as to the contents of the report. The article was headlined 'Lee High Design Faulty; Floor Flooding Possible Says Engineers' Report.'

Plaintiffs filed this suit contending that Mrs. Wilson's article was libelous and the publication had damaged them extensively in that it falsely and untruthfully reflects upon their professional competence and their personal integrity.

On August 2, 1960 plaintiffs, who were defendants in a suit by the contractor entitled 'Ross E. Cox v. East Baton Rouge Parish School Board' No. 76,883 on the docket of the 19th Judicial District Court, which concerned the responsibility for damages arising out of certain alleged defects in the construction of the Lee High School, took the deposition of Mrs. Martha Wilson and at that time she refused to reveal the name of her informant.

On September 7, 1961, Mrs. Wilson was subpoenaed by the plaintiff to testify at a discovery deposition for the alleged purpose of discovering information relevant to the suit against the Capital City Press and the other defendants who were then in the suit. Counsel for plaintiffs referred to the above quoted portion of the article of August 26, 1960 which appeared in the State Times newspaper and asked Mrs. Wilson to reveal the identity of her informant, which she again refused to do.

On October 17, 1961 Mrs. Wilson was ruled into the Eighteenth Judicial District Court on an order to show cause why she should not be ordered 'to disclose the identity of an anonymous informant referred to in the newspaper article which is the subject of this suit.'

The rule was made returnable on November 3, 1961, answer was filed and on the return day the rule was duly heard and Mrs. Martha Wilson again refused to reveal the identity of her informer, whereupon the District Judge made the rule absolute and ordered Mrs. Wilson to answer the question. Notice was given by counsel that an application for writs would be filed in this court and the District Judge fixed the time limit of ten days for the filing of the application and ordered a stay of proceedings pending the application.

The scope of examination of a witness in a pre-trial deposition is set forth in Article 1436 of the LSA-Code of Civil Procedure and we quote the pertinent parts which read as follows:

'A party may take the testimony of any person, including a party, by deposition upon oral examination * * * for the purpose of discovery or for use as evidence in the action or for both purposes * * *. Unless otherwise ordered by the court as provided by Article 1452 or 1454, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * * including * * * the identity and locations of persons having knowledge of relevant facts. It is not grounds for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

It is conceded that Mrs. Martha Wilson has no privilege. However, it is contended that the identity of a confidential informer would not itself be relevant evidence and, second, that it would not be reasonably calculated to lead to admissible evidence, and also that the question as to whether the plaintiffs have been libelled is to be decided from the contents of the alleged libelous publication.

We are concerned with the issues that may arise on the merits, the proof necessary to sustain the cause of action (libel) and damages therefor, as well as defenses to the action and proof in rebuttal.

In relation to the issues, proof and defenses thereto, we are called upon to decide whether defendant's informant might have knowledge of facts relevant to the demands, or defense, of plaintiffs or defendants, and, if so, his identity and location must be given by the witness as such information (testimony) would appear reasonably calculated to lead to the discovery of admissible evidence.

The constitutional right of liberty of speech and press is set forth in our State Constitution in Article 1, § 3, LSA, which reads as follows:

'Liberty of speech and press; responsibility for abuse

'Section 3. No law shall ever be passed to curtail or restrain the liberty of speech or of the press; any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.'

Under Article 19, § 9, of our Louisiana Constitution we also find a provision as to libel and its defense as follows:

'Libel * * *

'Section 9. In all proceedings or indictments for libel the truth thereof may be given in evidence. * * *'

Although the present suit was filed against Hartford Accident and Indemnity Company, Otto Engleman, Harold Lane Thompson, Ross E. Cox, Martha Wilson, and Donna Mulhearn Lynch, plaintiff's suit was dismissed as to all defendants except Capital City Press, upon exceptions of improper venue, improper joinder of parties and improper cumulation of actions.

The defendant in a libel suit may plead truth as a defense but if the publication is found to be false, legal malice is implied and the plaintiff is entitled to damages. In one of the earlier cases, Weil v. Israel, 43 La.Ann. 955, 8 So. 826, in which plaintiff had brought an action of libel against the defendant for alleged false and libelous allegations in the latter's answer to suit by the plaintiff and the defendant offered as a...