*1 Maurice J. Patten Warsaw Monument Works d/b/a Company. Richard Smith Smith Memorial d/b/a April February 24, Rehearing 3-1074A179. Filed denied [No. August 14, 1977. Transfer denied 1978.] Humphrey, Chipman, L. Humphrey, Jere Morrison <6 Plymouth, appellant. Rockaway, Joyce L. Kizer, Neu, Rockaway,
Peter & Plymouth, appellee. appeal judgment is an from a P.J. This on ver-
Staton, awarding $12,350.00 dict to Richard Smith actual $30,300.00 punitive damages against in a defamation suit Court, Maurice Patten in the J. Marshall Circuit Marshall County, May 23,1974. Indiana on liability out suit arises- for this datamation The basis mailing Patten entitled a brochure Maurice J. mailing Community”. Happen Let in Your “Never early Patten, late and occurred in was admitted *2 1973. a Plymouth resident, Smith, caused to be built
Richard a Cemetery, crypt, at Hill a 32 mausoleum Oak niche cemetery Plymouth, itself in The structure was com- Indiana. pleted mailing of after the the brochure. attending began Plymouth his
Mr. new venture Smith City meetings discussing project the and his with Council later, passed an the Council Ordinance Somewhat Council. stipulated the in construction of mausoleum was which city. city, part The of the the best interests as a overall agreement placed plan, upon lease the entered into a obligations city Addi- of maintenance and entombment. .city tionally, city the mausoleum was built on land with the paying expense paving of the road to the mausoleum. February, began advertising campaign his
Mr. Smith Plymouth running Pilot. The an advertisement end brochure mailed sometime around the of through beginning Warsaw, of- Indiana branch Approxi- fice Mr. Warsaw Monument Patten Works. d/b/a Plymouth mately were mailed to resi- 1500 or 2000 brochures random from the were selected at whose dents addresses Plymouth directly. telephone Dianis, from Mr. John Patten the brochure
Mr. obtained America, secretary of of North Monument Builders executive the trade association monument builders. compilation newspaper articles contained a
The brochure together a mausoleums, photographs of defective with and contained both admonitions and advice. cartoon. cartoon compiled by Monument Builders of North The brochure was being through clippings clipping with the obtained America buying public cautioned the The brochure to: service. “Look out for the slick salesman advertises who that there your
has been a demand for a mausoleum com- munity. it, community promoters
1. demands Who or the ? profit promoters your How much take 2. will out of community ? buy Why building completed 3. before the is or before you getting can what are ? see substantial, building why promoters If don’t complete yours? capital with their own instead crypts 5. Are the double sealed ? adequate provisions drainage 6. Have been for the made moisture to remove ? ventilation odors much Perpetual 7. How will be set aside for the Care deposited
Fund and where will the fund be ? Perpetual theWill interest on the keep Care Fund building repair eternity? your will 9. Who remove the bodies of loved from ones the mausoleum if it apart? fall starts deteriorate and *3 your lawyer Have INVESTIGATE before INVEST. may you money.” It save mailing brochure, Before the of the Smith Mr. had been unopposed presentation project community. of his to the presented by appeal
The for issues review this are: (1) give Did trial refusing court err in to Patten’s tendered final instruction number 8? (2) giving, objection, Did the court err in over Patten’s final
Smith’s instruction number 3 ? reviewing appeal, After in this we record conclude that erred, the trial court and we reverse. recognizes
The libel priv law of slander and two classes of ileged communication, qualified. Prosser, absolute and Law of
Torts, pp. 4th Ed. at of 776-796. The dissemination traditionally news communications media has safeguarded by qualified been two or conditional may privileges pleaded be as affirmative in a defenses libel action:
303 opinions (1) privilege (limited to of “fair comment” applicable to public on their conduct —not officials and newsworthy events) private and individuals or public pro- reporting of (2) The attached to ceedings. Prosser, supra, p. qualified privilege of 792. law at emerging expression brought of media the realm was into of New York First Amendment doctrine the landmark case Times 710, Co. v. (1964), 254, 11 Sullivan 84 376 U.S. S.Ct. L.Ed.2d 686. The Sullivan Court publisher that a who held activity public engaged questions protected an discusses It 282, 84 First Amendment. 376 U.S. at S.Ct. for further held Fourteenth Amendments First and public recovering bade “a official from a defama relating tory proved unless he falsehood his official conduct is, malice’ —that the statement was made with ‘actual it or with with that was false 279-280, at U.S. 84 false or not.” 376 at S.Ct. subsequent expanded in decisions 726. This standard was figures.” concerning “public interest cover matters Publishing 130, Co. v. Butts (1967), Curtis 388 U.S. 1094, finally recovery
1975, to include L.Ed.2d “private interest. individuals” involved matters Metromedia, Inc. Rosenbloom 403 U.S. S.Ct. 1811, 29 L.Ed.2d given
Recently option individual have been states privilege for defining their own standards constitutional they individuals, long private as as the defamation per (i.e., liability impose fault libel do without not se). Welch, Inc. v. Robert Gertz U.S. 2997, 3010, L.Ed.2d 809. This definitional the Rosenbloom “actual mal may option coincide with *4 either “simple negligence” standard. or with Gertz' ice” standard negligence” “simple Damages standard are limited under general repu damages. or Presumed to actual to figures public or to be public would continue officials tation contingent upon proof of New “actual malice” under the York Welch, Inc., supra, Times Gertz Robert standard. atU.S. 3011. v. Northwest Heating Conditioning In Air& Co. Pub- lications, Inc. App. 321 N.E.2d we rejected opinion upholding the Gertz favor standard enunciated in New York Times and in Rosenbloom. Aafco “requires private brings individual who a libel action involv- ing general an or prove event interest that defamatory published knowledge falsehood was with of its falsity disregard with or reckless it was false.” governs at disposition N.E.2d 586. This test our issues discussed below.
I. Disregard Reckless adopted following The trial court to the read instruction: by are “You instructed the mausoleum constructed plaintiff Cemetery Richard Smith at the Oak Hill under City Plymouth an ordinance of the is of interest anyone and therefore is entitled to make fair comment there- qualifiedly privileged by
on and such By are comments law. qualifiedly privileged plaintiff the term I mean that punitive damages Richard Smith cannot recover unless he actual proves by convincing clarity evidence that there was actual malice the defendant Patten.” Maurice De- Number fendant’s being: Actual malice was defined court as “ falsity ith of its or with reckless [W] as to whether it . . .” Final was false. Instruc- Defendant’s tion Number Patten contends was error for the court refuse to give defining disregard. his instruction rejected tendered
Patten’s instruction number which was court, the trial as reads follows: defendant, “I instruct that to establish that the Maurice Patten, or the pamphlets defendants with *5 Smith, disregard, plaintiff, Richard must show defendant, convincing that the Mau- clear and evidence Patten, serious doubts as to rice in fact entertained publication. If find from evidence truth of his the mat- the truth of Maurice Patten had reason to believe not pamphlet fact that he did ters contained in such verify does the truth of the statements contained therein disregard.” not constitute reckless Thompson from St. Amant v. instruction was taken whose 20 L.Ed.2d 390 U.S. a provides courts with formulation of the malice test trial relatively guidance. clear The St. Amant Court held reck reasonably pru less conduct not measured was investigated published have dent man would have or would rea publishing; rather, show that a before the evidence must the truth person would entertain serious doubts as to sonable of the statement. Heating,
In noted we that: “. . . factual inconsis- ublisher serious [P] negate materially contradict the im- tencies —facts which pression conveyed by nificant or sig- published to some statements highly probative evidence extent —would be probable falsity. publisher’s failure awareness of The any employ any effort to tual assertions investigatory methods or lack of reliable verify independently disputed questionable fac- also relevant to the issue of reckless would be disregard falsity statements. . . .” N.E.2d at 589. [Citation omitted.]. given Patten was instruction on the entitled to have his clearly definition of reckless an because pamphlet issue in the case: Patten secured the had from North America and Monument Builders of did accuracy verify therein, not articles either absolutely they applied project. or as to Smith’s
Moreover, disregard” legal the term “reckless is a j ury: term which must be for the defined general . The rule seems to be that it is error for “. . instructions technical or court to refuse to define its a legal issues, prop- phrases in with material when connection erly timely v. Hobbs requested to do. . .” Gwinn so . 439, 462, App. 118 N.E. especial significance in disregard” The term is of “reckless given legal trial a libel must be definition action and court.
II. Malice following defini- as to the trial court instructed tion of malice: *6 intentionally wrongful without doing “Malice of a act is
just Number 9. cause or excuse.” Plaintiff’s quote Patten maintains that while an exact from Black's Dictionary, proper applied Law this definition not in is when a libel action.
The distinction
York Times’
of
between
New
standard
falsity
disregard
of
of the truth
reckless
brought
“actual malice” in the traditional
ill
sense of will was
Beckley Newspapers Corp.
(1967),
out
in
Hanks
v.
81,
197,
jury
U.S.
S.Ct.
than intent falsehood ...” involving qualified in a is a term art case Malice privilege: upon “The rule seems to be that when comment qualified privilege, then the is one
the action is based false, charge question is true or but is not only that there exists actual malice the extent whether the has been abused to knowl- or an utterance with disregard for edge truth or falseness.” Evans v. falsity, its complete of its or a and utter Virg. 1972), 351 (W. Larson F.Supp. Thus, incorrect trial instruction on malice is court’s a libel action. adopt
The trial court’s refusal to Patten’s instruc- tendered defining tion and its rendition an erroneous definition malice constitutes reversible judgment reversed, error. The the trial court is and the grant trial Patten a new court instructed trial. J., J.,
Garrard, opinion; Hoffman, in result with con- concurs opinion Garrard, curs in J.
Opinion Concurring
Result
my
Heating
dissent in
J.
I adhere to
&
Garrard,
Conditioning
Pub. Inc.
Air
Co. v. Northwest
App.
and reiterate that actual
N.E.2d
*7
negligent publication
the
a defama
should be allowed for
involving
tory
private
a
individual who is neither
falsehood
figure. However,
even under
nor a
the
a
official
Aafco,
majority holding
predicated
in
reversal should not be
majority
upon
opinion.
in
upon
instructions relied
the
the
qualified
Assuming appellant Patten was entitled to the
Aafco,
correctly
majority
the
observes
described
jury
for the
have defined
“reckless dis
that
the court should
However,
presented
appeal
is
regard.”
issue
8,
refusing
Instruction
court erred
defendant’s
whether the
supra
For the court’s action to constitute re
at 304.
forth
set
a
error,
have
the tendered instruction must
been
versible
See, e.g.,
(1889),
Mosier
Stoll
of the law.
v.
statement
correct
244,
752; Indianapolis
System,
119 Ind.
20 N.E.
Transit
Inc.
(1971),
App. 649,
543;
Williams
269 N.E.2d
(1969),
App. 159,
NIPSCO
Ind.
v. Otis
passed in
Inevitably
one infallible definition.
its outer limits
through case-by-case
will
adjudication.
be marked out
. . .”
U.S.
Defendant’s jury tendered Instruction 8 restricted the considering whether the defendant entertained serious doubts as to pamphlet. the truth matters contained in the As such, misleading it was and an incorrect statement of the properly The court law. (Upon refused instruction. properly same basis the court refused defendant’s tendered which instructed the that truth is a my In own view a defamation this kind of innuendo underscores problem majority opinion created since it rewards publisher making inquiry the his no reasonable to ascertain whether target subject proper Compare, e.g., condemnation. opinion National Labor Relations Board’s in Plochman & Harrison —. n — Foods, Cherry (#11), Lane Inc. 140 N.L.R.B. 51 L.R.R.M. 1558, holding allegedly that an accurate film dramatization of a violent effectively strike so tarred and feathered the labor movement its showing prior employees representation to the conduct of a election per require would se the election be set aside. *8 deferisé if the pamphlet and statements in the were true their verdict defendant.) would be for the agree plaintiff’s
I given by Instruction 9 which was inadequately court However, defined malice. the instruction finding did not mandate a and when considered with the other given, especially instructions defendant’s quoted majority opinion, in the jury I find was ade- quately instructed. defendant, however, also error asserted in an instruc-
tion which advised the that the defendant had the burden proving qualified privilege stated, and then instructed, however, “You are false statements disparaging quality facts competitor’s goods of a or business, regarded conduct of his are as unfair methods of competition, privileged.” and are never qualified Even in the absence constitutional adopted by majority,''this the' language require would reversal in this case. The preju- instruction was erroneous and qualified dicial privilege (whether because the reckless disre- gard negligence) would attend the communication even if question the tort in were labeled interference with commercial or economic rather relations than libel in its historical sense.2 judgment
I therefore concur that
must be reversed.
Reported at
Louise February 28, Rehearing 1-376A36. Filed April 7, [No. denied July 13,1977.) Transfer denied See, e.g., 2. Several writers make Prosser, this distinction. Law of (4th Ed.) 128, citing Torts pp. Section sources recognizing availability qualified privileges.