Tilton v. Cowles Pub. Co.

Decision Date18 September 1969
Docket NumberNo. 39571,39571
Citation459 P.2d 8,76 Wn.2d 707
PartiesRichard O. TILTON et al., Appellants, v. The COWLES PUBLISHING COMPANY, a corporation, Respondent.
CourtWashington Supreme Court

Quackenbush, Dean & Smith, Jack R. Dean, Olson & Johnson, Frank Hayes Johnson, Spokane, for appellants.

Witherspoon, Kelley, Davenport & Toole, William V. Kelley, E. Glenn Harmon, Spokane, Paul P. Ashley, Seattle, for respondent.

NEILL, Judge.

Plaintiffs are members of the executive committee of the Spokane Area Public Safety Council seeking damages for an alleged libel contained in a story printed in The Spokesman-Review, a newspaper published by the defendant.

The Spokane Area Public Safety Council is an organization made up of all the members of Fraternal Order of Police Lodge No. 1 and Fire Fighters Local 29. The latter two groups are the policemen's and firemen's unions in Spokane. The Public Safety Council is financed by funds from both unions. Its main objective through the years has been the preservation of the civil service and pension systems. The group is obviously designed to represent the interests of policemen and firemen in the local political arena. The executive and administrative power of the Council is vested in an executive committee, which is made up of 10 members from each of the two unions plus two cochairmen who are the presidents of the two unions. At the time the article in question was published, the 10 representatives of the Fire Fighters Local were elected from the membership, while the Police Lodge elected five representatives from its membership and allocated the remaining positions to officers of the Lodge.

During the fall of 1965, Spokane was embroiled in a heated political campaign to change from a 'City Manager' to a 'Strong Mayor' form of city government. A proposal to so change the city charter was to be on the ballot on November 2, 1965. The executive committee of the Public Safety Council was publicly known to be in favor of the charter change. During the months of September and October the committee voted to contribute Public Safety Council funds to C.I.T.Y. (Committee of Interested Taxpayers and You), a group actively working for the charter change.

On Wednesday, October 20, 1965, Jack Roberts, a political writer for The Spokesman-Review, was told of the possibility that a lawsuit seeking to enjoin transfer of police union funds to C.I.T.Y. was to be started. His informant, a former employee in the office of the Mayor of Spokane, was then employed by an advertising agency handling publicity for the supporters of the existing city manager form of city government. Following up this tip, Mr. Roberts telephoned the Spokane Police Chief in an attempt to verify this story. The chief told Mr. Roberts he could release no details at the time, but agreed to give him an 'exclusive' on the story. Mr. Roberts again telephoned the police chief on the evening of October 22d, and was told that nothing definite had developed, but that something might be ready on the next day, Saturday.

About noon of Saturday, October 23rd, the police chief called Mr. Roberts and told him that if he wanted the story he should be at a certain suite in a downtown office building at 1 o'clock that afternoon. Although Saturday was Mr. Roberts's day off, he went to the designated office. The office was that of one of the attorneys for the plaintiffs in the proposed suit. Mr. Roberts was there given copies of various legal papers pertaining to the proposed lawsuit.

The suit was being instituted by Assistant Police Chief E. W. Parsons and Police Department Secretary W. W. Natwick for the purpose of preventing use of Fraternal Order of Police funds by the Public Safety Council to support the proposed charter change. At the time these papers were given to Mr. Roberts they had not been filed, but Mr. Roberts was told that the named defendants were being served with process at that time. (The action was filed the following Monday.)

Upon leaving the attorney's office, Mr. Roberts, the police chief, and Assistant Chief Parsons went to a restaurant for lunch. Mr. Roberts then returned to his office at The Spokesman-Review and in the course of 30 to 45 minutes wrote the story about the Parsons-Natwick lawsuit. He made no further attempt to verify the story. He testified he did not intend to imply a criminal charge in the story. He also testified that the content of his story was not dictated by his superiors at The Spokesman-Review, nor was he motivated by spite or ill will in writing the story. There is no evidence that Mr. Roberts had actual knowledge that any of the facts or charges related in the story were untrue.

The story written by Mr Roberts, which forms the basis of this action, was published the next day, Sunday, October 24th, under a front page headline in the following form:


Sunday Morning

October 24, 1965

Spokane, Wash.

In Strong Mayor Campaign


By Jack Roberts

Spokesman-Review Staff Writer

Court appearance summonses were being served Saturday on 23 Police-Fire-Public Safety Committee members involving alleged 'unlawful' and 'unauthorized' appropriation of $5,300 in Fraternal Order of Police funds for political and financial support of a City Charter change for a Strong Mayor-Council form of city government.

The summons, complaint and notice of hearing on a temporary injunction were being served on as many defendants that could be located. They were being instructed to appear Tuesday at 9:30 a.m. in Superior Court.

The actions, which will be filed Monday, were brought by Assistant Police Chief E. W. Parsons and Wesley W. Natwick, Police Department secretary.

Named defendants were Richard O. Tilton, William A. Beeman, Thomas R. Curtiss, Floyd E. Lockie Jr., Raymond O. Bolstad, Mark R. Bauer, Homer C. Hall, Fred C. Judd, Arthur J. Corbett, Richard R. Olberding and Patrick H. Colliton, all officers and trustees of Spokane Lodge No. 1, Fraternal Order of Police.

Remaining defendants, all members of Local 29, International Association of Fire Fighters, included Kenneth D. Miller, Robert E. Munk, William L. Cooke, James K. McBride, Raymond P. LaVigne, James C. Burger, Ted E. Mills, Douglas G. Amsbury, Jack A. Waller, Kenneth A. Bye, Robert J. Hayes and Howard J. Vietzke.

All defendants are members of the Police-Fire Public Safety Committee.

Two law firms are representing plaintiffs Parsons and Natwick. They are Hennessey, Curran & Bentley and Hamblen, Gilbert & Brooke.

Complaint Detailed

The complaint alleges those defendants who are members of the Fraternal Order of Police 'joined with the remaining defendants herein, as members of the Public Safety Committee' to:

'Give political and financial support to a proposed amendment to the charter of the City of Spokane to change the form of government of the City of Spokane from the Council-Manager form to the Strong Mayor-Council form.'

The complaint further alleges $5,300 was appropriated from the FOP treasury, which was 'unlawful, unauthorized and ultravires for the following reasons':

1. The defendants were not authorized to engage in such activities by the FOP membership through 'written ballot after due notice to the members as required by the by-laws of said organization.'

2. That no regular or special meeting, as required by the FOP Constitution, was ever called for this purpose.

3. That these activities were in violation of the City Charter and the Police Department's rules and regulations.

Injunction Sought

The plaintiffs seek a temporary injunction restraining the defendants from continuing to engage in these activities.

The plaintiffs also seek a court order declaring that appropriation of $5,300 from the FOP treasury was unlawful and directing the defendants to redeposit the funds in the treasury.

Moreover, it is alleged in the motion for a temporary injunction that the FOP Constitution provides that all matters affecting policies, aims and means of accomplishing the purposes of the lodge not specifically provided for in the Constitution or by action of the lodge shall be decided by the Board of Directors. It is maintained the expenditure of funds of the lodge must be authorized by the board--and, that a majority of the board must be present for a quorum.

Written Vote Required

The plaintiffs contend that the by-laws of the lodge require that 'all matters of great importance to all members which are not pressing be submitted to a vote of the members by written secret ballot at an election.'

The motion stated:

'A substantial number of the members of the lodge have stated to affiant (Parsons) that they object to the action taken by defendants for the reason that the members were never given an opportunity to vote thereon and the action of defendants was unauthorized and undemocratic.'

It is alleged that Parsons asked the FOP secretary to see the minutes of the board concerning the proposal to support the charter amendment and the appropriation of $5,300 from the treasury, but was informed the board 'had no meetings on said subjects.'

However, the motion contends, the lodge secretary verified that $5,300 had been paid to the Public Safety Committee by direction of Robert O. Tilton, president.

Plaintiffs claim the article is libelous. Defendant pleaded substantial truth and privilege as defenses. At the conclusion of all the evidence, defendant moved for a directed verdict claiming, among other things, that there was insufficient evidence of malice to go to the jury. The motion was denied and the case was submitted to the jury. The jury was instructed that the article in question was published under a qualified privilege and recovery should be allowed only if the jury found by a fair preponderance of the evidence that the defendant was actuated by malice in publishing the story. The jury returned a verdict for each plaintiff in the sum of $13,000....

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    ...760 P.2d 368 (citing Herron v. KING Broadcasting Co., 109 Wash.2d 514, 523, 746 P.2d 295 (1987) (Herron I); Tilton v. Cowles Publ'g Co., 76 Wash.2d 707, 722, 459 P.2d 8 (1969)). "To prove actual malice a party must establish that the speaker knew the statement was false, or acted with a hig......
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    ...(9th Cir.1968) 392 F.2d 417, 418--420 (cert. den. (1968) 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110; Tilton v. Cowles Publishing Company (1969) 76 Wash.2d 707, 716--717, 459 P.2d 8, 13--14, cert.den. (1970) 399 U.S. 927, 90 S.Ct. 22, 38, 26 L.Ed.2d 792; Grayson v. Curtis Publishing Co. (196......
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    ...being made paramount to the former. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Tilton v. Cowles Publishing Co., 76 Wash.2d 707, 459 P.2d 8 (1969). However, the court lacked solidarity on this basic issue as witnessed by the fact that each time the New York Times r......
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  • Libel: Taskett v. King Broadcasting Co.-a New Washington Standard
    • United States
    • Seattle University School of Law Seattle University Law Review No. 1-01, September 1977
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