Wilhoit v. WCSC, Inc., No. 0892

• Court: Court of Appeals of South Carolina
• Writing for the Court: GARDNER; SANDERS, C.J., and SHAW
• Citation: 293 S.C. 34,358 S.E.2d 397
• Parties: , 13 Media L. Rep. 2156 Juanita B. WILHOIT, Respondent, v. WCSC, INC., and Lawrence Aaron, Appellants. . Heard
• Decision Date: 15 December 1986
• Docket Number: No. 0892

Page 397

358 S.E.2d 397 293 S.C. 34, 13 Media L. Rep. 2156 Juanita B. WILHOIT, Respondent,
v.
WCSC, INC., and Lawrence Aaron, Appellants. No. 0892. Court of Appeals of South Carolina. Heard Dec. 15, 1986.
Decided March 2, 1987.

Page 398

[293 S.C. 36] Thomas S. Tisdale, Jr., and Carol B. Ervin, both of Young, Clement, Rivers & Tisdale, Charleston, for appellants.

James H. Abrams, Jr., of Pretty Man & Abrams, Summerville, for respondent.

GARDNER, Judge:

Juanita Wilhoit (Wilhoit) sued WCSC, Inc., and Lawrence Aaron (the appellants) for defamation; the jury returned a verdict of $1 actual damages and $45,000 punitive damages. We affirm.

Only a brief review of the facts is necessary. Wilhoit testified as a character witness for Barbara Koester, who pleaded guilty to bank embezzlement. After Wilhoit testified, she was approached by Aaron, a reporter for WCSC; Wilhoit testified that though she told Aaron she was not Barbara Koester, Aaron had a cameraman film her. While she was being filmed, Wilhoit covered her face with her hands. That night WCSC aired the film simultaneously with the story about Barbara Koester's sentencing. The broadcast was shown five times by WCSC.

Wilhoit is an independent real estate broker.

Wilhoit offered no testimony as to the net worth of either defendant.

By way of preface to the issues presented by this case, we observe that the U.S. Supreme Court, in interpreting First Amendment impact on libel and slander cases, has held that in cases against mass media defendants, a public official cannot recover damages for defamatory falsehood unless he proves by clear and convincing evidence that the false statement was made with actual malice--that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Later, this same principle was extended in similar cases to public persons. [293 S.C. 37] Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Later, in the case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the United States Supreme Court laid down the rule that a private individual may not recover presumed or punitive damages against a mass media defendant without a showing of actual malice as herein defined; the standard of proof, the court held, is clear and convincing.

We address the issues of merit sequentially as presented.

First, the appellants argue that since the alleged defamation consisted of a film clip of Wilhoit with her face shielded by her hands, shown simultaneously with the broadcast which did not mention Wilhoit's name, the trial judge erred in denying their motion for directed verdict and post-trial motions on the grounds (1) that the broadcast

Page 399

was not of and concerning Wilhoit and (2) that Wilhoit failed to offer any evidence that a third party understood the broadcast to refer to her (Wilhoit).

We first address whether Wilhoit could have been recognized from the film clip. This court has reviewed a video tape of the broadcast. We hold that whether the picture revealed Wilhoit to the extent that she could have been recognized by some one or more of the viewing audience was a question of fact for the jury, who saw and heard a video tape of the broadcast. The jury found against the appellants on this issue. We hold that there is of record sufficient evidence to support this finding of fact by the jury.

Whether the broadcast was of and concerning Wilhoit raises a novel issue in this state. The theory of Wilhoit's case is that by the association of her picture with the accompanying broadcast of the news report of Koester's pleading guilty to embezzlement there was an implication that Wilhoit was an embezzler. The general rule applicable in situations as the one before us is stated in 50 Am.Jur.2d, Libel and Slander, Section 24 (1970); we quote:

[I]t is generally held that the publication of a person's portrait accompanied by the name of another, or not accompanied by any name, in connection with an article which refers to the photograph and is defamatory, entitles[293 S.C. 38] the person whose portrait is so published to maintain an action for libel. In such a case, the publication of the plaintiff's portrait sufficiently identifies him as the subject of the accompanying text. (Emphasis added.)

From our reading and study, we think the applicable law is well set forth in the West Virginia case of Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W.Va.1984); we quote:

Turning to the facts surrounding the present case, it is well established that although libel is generally perpetrated by written communication, it also includes defamation through the publication of pictures or photographs. See Burton v. Crowell Pub. Co., 82 F.2d 154 (2d Cir.1936); Thayer v. Worcester Post Co., 284 Mass. 160, 187 N.E. 292 (1933); Dunlop v. Dunlop Rubber Co., 1 Ir.Rep. 280 (1920); Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1904); Morrison v. Smith, 177 N.Y. 366, 69 N.E. 725 (1904); De Sando v. New York Herald Co., 88 A.D. 492, 85 N.Y.S. 111 (1903); DuBost v. Beresford, 2 Camp. 511, 170 Eng.Rep. 1235 (1810).

In Wandt v. Hearst's Chicago American, 129 Wis. 419, 109 N.W. 70 (1906), the defendant newspaper published an article accusing a certain person of being a "suicide fiend," mistakenly accompanied by a photograph of the plaintiff. The Supreme Court of Wisconsin held that, even though the name of the person referred to as a "suicide...