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07/31/78 MEMPHIS PUBLISHING CO. v. RUTH ANN NICHOLS

July 31, 1978

MEMPHIS PUBLISHING CO., PETITIONER,
v.
RUTH ANN NICHOLS AND BOBBY LEE NICHOLS, RESPONDENTS.



Brock, Justice wrote the opinion. Henry, C.j., and Fones, Cooper and Harbison, JJ., concur.

The opinion of the court was delivered by: Brock

BROCK, Justice.

On June 5, 1971, the following news article appeared in the Memphis Press-Scimitar:

"WOMAN HURT BY GUNSHOT

"Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.

"A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect's husband.

"Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.

"Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.

"No charges had been placed."

Ruth Ann Nichols and her husband, Bobby Lee Nichols, filed separate actions, which were consolidated for trial, charging defamation and an invasion of privacy. The crux of plaintiffs' charge is that the article published by the defendant falsely implied that Mrs. Nichols and Mr. Newton, the assailant's husband, were having an adulterous affair, and were "caught" by Mrs. Newton. Plaintiffs charged that "at the time of the publication of the said article the defendant knew, or could have known had it exercised reasonable care, and could have ascertained that the said matters were untrue."

The undisputed proof showed that not only were Mrs. Nichols and Mr. Newton at the Nichols' home but so, also, were Mr. Nichols and two neighbors, all of whom were sitting in the living room, talking, when Mrs. Newton arrived around three o'clock in the afternoon. Hearing a commotion, Mr. Newton went outside to investigate and there his wife fired several shots at him. Mr. Newton then ran behind the Nichols' home whereupon Mrs. Newton entered the house and shot Mrs. Nichols.

A Memphis Press-Scimitar reporter, Menno Duerksen, testified that he had written the article in question two days before it was published and that it was his practice to go to the police station about 4:30 a.m. each day to read through the reports in search of a story. Two police reports were written regarding the shooting incident at the Nichols' home although the availability of both reports at the time Mr. Duerksen wrote his story was disputed. The arrest report made no mention of any individuals at the scene of the shooting other than Mrs. Nichols, Mr. Newton and Mrs. Newton. The offense report included information that Mr. Nichols and two neighbors were also at the house when Mrs. Newton arrived. Both reports indicated that the incident took place in the middle of the afternoon.

Mr. Duerksen testified that "police said" and "police reported," terms he had used in his story, were commonly used by reporters to indicate either that the source of quoted information was a direct quoted from a police officer or that the information was gathered from official police reports. Police officers testified that they had not given an oral interview regarding the incident.

The proof showed that the defendant newspaper printed a follow-up of the incident on July 2, 1971, stating that an assault charge against Mrs. Newton had been dismissed and that the newspaper's original account of the incident had regrettably failed to state that Mr. Nichols was present and had tried to prevent the shooting.

Mrs. Nichols testified at trial that " article in the paper has tore up my home and has tore up my children. We had to move. It's tore up my reputation. My friends has turned down on me. People has talked about me. They've talked about my husband. They've talked about my children." She testified that she had changed her telephone number four times because of harassing phone calls she received. "They would call me and say, 'Oh, you finally got caught.' Said, 'How much did they charge -- how much did it cost your husband to get the re-writeup in the paper or get the retractiln wrote up?'"

One of Mr. Nichols' friends and fellow workers testified that people would talk about Mrs. Nichols. In response to the question of what people said about Mr. Nichols' wife, the witness stated "They said she was a whore."

At the close of all the proof the trial court granted the defendant's motion for a directed verdict on grounds that (1) the matter was not "libel by innuendo," (2) no "fault" had been shown, and (3) that no special damages had been proved. The court indicated uncertainty respecting the correct standard of liability for a newspaper alleged to have defamed a "private" person, in light of the United States Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The Court of Appeals reversed and remanded for a new trial, holding (1) that T.C.A. § 23-2601 had obviated the need for special damages where the defendant had published an imputation of adultery, (2) that the determination of whether the article was "libelous per se by innuendo" was a question for the jury, (3) that the standard of liability was ordinary care and (4) that there was evidence adduced at the trial from which a jury could find that the defendant did not act with reasonable care under the circumstances. The case was remanded for a new trial.

We granted certiorari to consider the effect of the Gertz decision upon the law of libel in this state and its application to this case.

I

Before the decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), libelous statements were considered to be undeserving of first amendment protection. The libel laws of the individual states traditionally had consisted of common-law principles. In New York Times, however, the Court departed from the common law, holding that the first amendment protected good-faith critics of the official conduct of public officials from defamation suits:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the 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." Id. at 279, 84 S.Ct. at 726.

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) the New York Times doctrine was extended to defamation of "public figures" involved in "public issues." In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the Court, in a plurality opinion, concluded that the New York Times standard of liability also applied in libel actions by "private" individuals against publishers of defamatory statements relating to matters of "public or general concern."

However, in Gertz v. Robert Welch, Inc. (supra) , a majority of the Court concluded that the Rosenbloom plurality had extended the constitutional privilege too far and had failed to strike a proper balance between the reputation interests of private individuals and the interests protected by the first amendment. Although the Court did not mandate that the states must abandon the "actual malice" requirement in actions by private individuals, it did hold that

"... so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual." 418 U.S. at 347, 94 S.Ct. at 3010.

The Court reasoned that " approach provides a more equitable boundary between the competing concerns involved," and "recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation." Id. at 347-48, 94 S.Ct. at 3011. The effect of the Court's holding is to approve an ordinary negligence ...


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