O'NEIL v. Edmonds, Civ. A. No. 2449.

• Decision Date: 03 January 1958
• Docket Number: Civ. A. No. 2449.
• Citation: 157 F. Supp. 649
• Parties: James D. O'NEIL, an infant who sues by James S. O'Neil, his father and next friend, Plaintiff, v. Alfred B. G. EDMONDS and John W. Edmonds, Jr., t/a Owners and Publishers of the Peninsula Enterprise, Accomac Court House, Virginia, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

157 F. Supp. 649

James D. O'NEIL, an infant who sues by James S. O'Neil, his father and next friend, Plaintiff, v. Alfred B. G. EDMONDS and John W. Edmonds, Jr., t/a Owners and Publishers of the Peninsula Enterprise, Accomac Court House, Virginia, Defendants.

Civ. A. No. 2449.

United States District Court E. D. Virginia, Norfolk Division.

January 3, 1958.

Worthington, White & Harper, Norfolk, Va., C. A. Turner, Jr., Eastville, Va., John P. Harper, Norfolk, Va., and C. A. Turner, Jr., Eastville, Va., for plaintiff.

Meade T. Spicer, Jr., Richmond, Va., B. T. Gunter, Jr., Accomac, Va., Henry J. Lankford, Norfolk, Va., John W. Edmonds, III, Richmond, Va., for defendants.

WALTER E. HOFFMAN, District Judge.

The issue for consideration on defendants' motion for summary judgment is whether the publication of a false report of a person's death is sufficient to form the basis of an action for libel, and whether the same is actionable under and by virtue of the provisions of § 8-630, Code of Virginia, 1950; said latter section providing for a cause of action under the Virginia statute of insulting words relating to "all words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace".

The plaintiff is a citizen of the State of New York and, at the time of the facts hereinafter related, was a member of the United States Navy assigned to the U. S. S. Darby. The defendants are citizens of the State of Virginia and are owners and publishers of a weekly newspaper operating under the name of "Peninsula Enterprise", whose news coverage and primary circulation is throughout the Eastern Shore of Virginia. In its weekly edition distributed to the public on or about May 31, 1956, a news article reported the following:

"Sailor dead as result of crash at Kiptopeke.

* * * * * *

"Shore couple in other car were on jaunt following high school dance.

"A young sailor, James O'Neil, of the U. S. S. Darby, died in Portsmouth Naval Hospital Monday, the aftermath of a two-car crash on Kiptopeke Ferry Terminal property just after midnight last Friday night."

The balance of the news story related certain details with respect to the accident which are not pertinent for consideration in the instant litigation. It is sufficient to state that the article in question placed no responsibility for the accident upon the plaintiff herein, or any of the occupants of the car in which plaintiff was riding as a passenger. The basis of plaintiff's claim is that he was reported as dead when, in fact, he was only seriously injured.

It is conceded by counsel that defendants acted without malice and knowledge of the falsity of the report as published. There may be unusual circumstances in which the publication of a false report of a person's death is sufficient to give rise to an action for libel. For example, if the circulated report states that a person has been found dead under disgraceful circumstances, the libelous imputation goes further than the mere publication of a false report of death. The right of action has been upheld with respect to the publication in a newspaper of the obituary notice of a woman whose age was greatly exaggerated, where the newspaper editor had conceived and published the notice with a malicious intent and with knowledge of its falsity. McBride v. Ellis, 9 Rich. 313, a South Carolina case decided in 1856.

Absent special circumstances which do not exist in the instant case, the weight of authority leans to the view that the publication of a false report of death is not libelous per se, and that it is not defamatory to say that a man is dead. 53 C.J.S. Libel and Slander § 18; Prosser, Handbook of the Law of Tort, p. 574, 1955 Ed.; Lemmer v. The Tribune, Inc., 50 Mont. 559, 148 P. 338; Cardiff v. Brooklyn Eagle, Inc., 190 Misc. 730, 75 N. Y.S.2d 222; Ross v. MacFadden Publications, Inc., 174 Misc. 1019, 22 N.Y.S.2d 519; Estill v. Hearst Publishing Co., Inc., 7 Cir., 186 F.2d 1017.

Actually the information with respect to the death of plaintiff was obtained by defend...