Francis v. Lake Charles American Press

265 So. 2d 206, 262 La. 875, 1972 La. LEXIS 4998

• Court: Supreme Court of Louisiana
• Decided: June 29, 1972
• Docket: 51076
• Status: Published

Opinions

HAMLIN, Justice.

In the exercise of our supervisory jurisdiction we directed Certiorari to the Court of Appeal, Third Circuit, for review of its judgment .which amended the judgment of the trial court (this judgment was in accordance with the jury verdict).in favor of Earnest Francis from $15,000.00, defamation damages, to $1,500.00. Art. VII, Sec. 11, La.Const. of 1921; .La.App., 241 So.2d 73; 257 La. 602, 243 So.2d 272.

The facts of record disclose that at the instance of his wife, who had been prevailed upon by Mrs. Gervey Joseph LaRue, Earnest Francis signed, September, 1969, a surety appearance bond in the sum of $100.-00 for Gervey Joseph LaRue, whq was charged under a Lake Charles City Ordinance with being a peeping tom-rra misdemeanor.

LaRue did not appear for trial, and- the following judgment was rendered by the Lake Charles City Court, Parish of Calcasieu, Ward III, on September 23, 1969 (read and signed on September 25, 1969) :

"CITY OF LAKE CHARLES VS. NO. 1852 — G Gervey Joseph La Rue Ernest Francis

LAKE CHARLES CITY COURT PARISH OF CALCASIEU, WARD III STATE OF LOUISIANA

JUDGMENT OF APPEARANCE BOND FORFEITURE SECURITY BOND

In the above-entitled and numbered cause, the defendant was charged by an affidavit with Peeping Tom in violation of Chapter _, Paragraph - of the Code of the City of Lake Charles, 1956.

The said defendant, having been duly notified to appear in Open Court on the 23rd day of Sept., 1969, for the purpose of arraignment and/or trial, and/or fixing for trial, did fail to appear and answer when called, whereupon the City Prosecutor of the Lake Charles City Court moved that the Court forthwith render up judgment decreeing the forfeiture of the $100.00 surety appearance bond deposited with the Marshall of the City of Lake Charles by Earnest Francis — 209 N. Spencer Street

IT "IS ORDERED, ADJUDGED AND DECREED that the surety appearance bond of $100.00 deposited with the Marshal of the City of Lake Charles by the said Earnest Francis, be, and the same is-hereby forfeited, and accordingly there be judgment herein and the same is rendered in favor of the City of Lake Charles and against the said Gervey Joseph LaRuc, defendant, and Earnest Francis, surety, jointly and in solido, together with 5% per annum interest thereon from and after the date hereof, and for all costs of these proceedings.”

Joseph B. Goodwin, a court reporter for the Lake Charles American Press in 1969, covered the proceedings of both the Lake Charles City Court and the Fourteenth Judicial District Court. On September 23rd or 24th, 1969, after covering a narcotics trial in the Fourteenth Judicial District Court, Goodwin went to the City Court where he picked up the record of the above forfeiture. He testified:

“I think it was on Wednesday afternoon when I picked up on the thing. 1 made a check of Judge Murray Anderson’s office, and I found two — let’s see, I think I found one — I found this story'— I found another one. I don’t remember what it was. It was some minor jail sentence though, and I noticed that this bond forfeiture was in excess of $75.-00, and normally our policy at the paper is that any fine or bond forfeiture or anything over $75.00 we carry a story on it; under $75.00 we don’t. And so I noticed the bond forfeiture. I looked at the top and there were two names up there. Gervey LaRue and Earnest Francis, and I couldn’t tell from that who the defendant was. So I started reading down there and I came to a section of this — it’s a rather complicated paper. It’s very confusing at times. I came to a section where it pointed out that a bond forfeiture had been ordered of Earnest Francis at such and such an address. And so I picked this up as the peeping tom.

“Q. Did you honestly believe that Earnest Francis was the defendant on that charge when you so reported it to the paper?

“A. I honestly did.”

On September 25, 1969, the following news story appeared on page S of the Lake Charles American Press:

“Peeping tom bond forfeited

A $100 cash bond forfeiture has been ordered and a bench warrant issued for Earnest Francis, 290 Spencer St., who failed to appear in City Court for arraignment on a ‘peeping tom’ charge.

City Judge Murray Anderson took the action at the request of Assistant City Prosecutor Ben Short.”

Francis, an operator for Cities Service Oil Company and an agent for Williams Life Industrial Insurance Company (this work he performed at night and on weekends), was depressed by the untrue story. He said, “I couldn’t have been hurt worser than if I was shot with a shotgun.” He did not contact the newspaper, and his wife, who worked, was unsuccessful in her attempt to contact the proper newspaper parties the day the story appeared. On September 27, 1969, Francis spoke with his attorney, and on October 2, 1969, J. Clem Drewett of the firm of Drewctt, Jacques & Short addressed the following letter to the Lake Charles American Press:

“Gentlemen:

This is to inform you that I represent Ernest Francis relative to a newspaper article that was written about him on September 25, 1969. It was reported in your paper that a warrant was issued for Ernest Francis who failed to appear in City Court for arraignment on a ‘peeping tom’ charge. It appears that you have been in grave error about this through negligence of some of your personnel as Ernest Francis has never been charged on a ‘peeping tom’ charge. Ernest Francis did sign a bond for a man who was charged regarding such a matter and apparently your reporter did not research the matter adequately.

My client, Ernest Francis, works for Cities Service, as well as selling life insurance and he has been thoroughly embarrassed and humiliated by the said newspaper article. Also his family, including his nine children who arc in school, as well as his wife, has been humiliated and made fun of by the public in general and it is apparent that Mr. Francis is going to have a substantial loss of income in the future as a result of your newspaper article.

Our investigation indicates that this is a clear case of negligence on the part of your newspaper and that your paper should first make a front page retraction of the article as well as having either you or your insurance company enter into negotiations for a money settlement on this matter.

I am enclosing a copy of this letter for you to forward to your insurance company and would suggest that you have someone get in touch with this office immediately for further discussion of the matter.

Waiting to hear from you, I am Very truly yours,

DREWETT, JACQUES & SHORT

[Sgd] J. Clem Drewett J. CLEM DREWETT

JCD/sg

Enclosure”

On Saturday, October 4, 1969, after receipt of the letter, supra, the Lake Charles American Press, page 3, published the following retraction:

“ 'Peeping tom’ story in error

The American Press erred Sept. 25 when it said a $100 bond forfeiture had been ordered and a bench warrant issued for Earnest Francis, 290 Spencer St., for a failure to appear in City Court on a 'peeping tom’ charge.

Francis was not the defendant, but had signed an appearance bond for Gervey Joseph LaRue, no age or address available, who was charged on that count.

City Prosecutor Robert Jacques’ office-dropped the peeping tom charges against LaRue Sept. 30 and ordered the bench warrant recalled and the bond forfeiture-set aside.

On October 21, 1969, plaintiff filed the present suit for damages in the sum of $125,000.00, alleging in part:

“6.

The aforedescribed article was printed and subsequently sold in complete error and without justification, through the negligence of LAKE CHARLES AMERICAN PRESS, INC., its agents, servants and/or employees for the following reasons, not to be exclusive:

A. Failing to make an adequate, thorough investigation before printing a news article;

B. Failing to ascertain that certain facts are true before printing same; .

C. Failing to make a proper investigation before printing a news article to see if there is any basis for said news article;

D. Failing to check a news story to find out whether or not it was true before printing the same;

E. Printing and selling a newspaper which contained a false news article without checking the correctness of the same when proper and adequate investigation would have revealed the incorrectness of the said article;

F. Failing, in general, to adhere to the average principle regarding the publishing, printing and selling of a newspaper that is generally accepted in the newspaper business.

* * * * * *

10.

Since the printing of the aforedescribed news article on September 25, 1969, petitioner and his family have been harassed, embarrassed, and shunned by the public and their friends, has received anonymous telephone calls concerning the article, has felt lower self-esteem and [as] well as lower esteem from his friends, acquaintances and business associates in the community.

' 11.

Since the aforesaid printing of the news article on September 25, 1969, petitioner has been asked to resign from his job with Williams Industrial Life Insurance Company.”

Defendant answered plaintiff’s petition, averring that “the error in the news article in question was made inadvertently and innocently and not through any intentional or culpably negligent conduct on the part of defendant or anyone for whom it might be responsible.” Defendant further averred that upon learning of the error in the news article, it promptly published an article correcting the same, which article was printed in a place of equal or greater prominence than the original article.

The matter was tried to a jury which returned a verdict for Francis in the sum of $15,000.00 with interest. The trial judge, as stated supra, rendered judgment in accordance with the jury verdict.

Defendant appealed, and the Court of Appeal correctly summarized the testimony of record as follows: “The facts and circumstances of this case indicate that the jury abused its discretion in awarding the $15,000.00 in damages. [The author of the opinion, stated, “The author agrees that the award by the jury was excessive. On the other hand, the award in this judgment is grossly inadequate, but in the interest of dispatch of justice yields to the greater pressure of the majority of-this court.”] Mr. Francis is the father of nine children. He has been employed by Cities Service Oil Company for 24 years, and for the last four years has done additional work on a part-time basis as an insurance agent. True, he nearly lost the agency because of the defamation but that threat was easily overcome. There is some evidence that plaintiff lost potential insurance clients and some existing accounts because of the publication, but there is also evidence that other insurance agents similarly lost business in the same period. Also, although he may have lost some potential insurance clients, the evidence shows that his overall earnings did not decrease after the libelous statement was published.”

The Court of Appeals concluded: “There •is considerable evidence that Mr. Francis enjoyed a good repittation in the community in which he lived, There is ample evidence that plaintiff was severely aggrieved because of the highly reprehensible nature of the publication. The offensive nature of the publication cannot be denied but we think the award can be reduced, particularly since the publication was solely the result of an error in reporting by the newspaper.” As stated supra, the Court of Appeal reduced the award to plaintiff to $1,-500.00, finding that sum to be satisfactory reparation for the harm done.

After denial of his application for a rehearing in the Court of Appeal, plaintiff applied to this Court for the instant Certiorari. He assigned, and still assigns, four' errors to the decision and judgment of the Court of Appeal; they recite in substance: (1) The Court erred under the facts of this case in re-examining the amount of a jury verdict; (2) The Court under the facts of this case erred in considering excessive the $15,000.00 judgment of the jury and in substituting therefor the grossly inadequate award of $1,500.00; (3) The Court erred in reducing the amount of the award in that it apparently did not consider all of the elements of damage properly cognizable in a defamation action; and, (4) The Court was in error in reducing the jury’s award to an amount less than actual damages solely because the defamation was due to negligence and was not intentional.

Defendant did not apply for a rehearing in the Court of Appeal. However, on June 21, 1971, it filed in this Court a Motion for Summary Judgment or Other Alternative Relief. The motion was filed under LSA-C.C.P. Art. 966,¹ and for the purpose of asserting the alleged new rule of law enunciated by the United States Supreme Court in the case of Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296. (Argued December 7 and 8, 1970, decided June 7, 1971.) In part, the motion averred: “The plaintiff in this case was admittedly neither a public official nor a public figure and accordingly defendant was not protected by the rule of law requiring actual malice on the part of a newspaper in stories concerning public officials or public figures as enunciated in the New York Times and Walker cases. The Rosenbloom case decided by the United States Supreme Court on June 7, 1971 for the first time extended this protection to newspapers in stories concerning private individuals such as the plaintiff in this case.” The motion further averred: “The Constitution of the United States and particularly the first and fourteenth amendments as now interpreted by the Supreme Court of the United States prohibits an award of damages in favor of a private individual such as the plaintiff against a newspaper for alleged libel in the absence of actual knowledge that the story was false or reckless disregard of whether it was false or not, and accordingly the plaintiff is now prohibited from recovering from the defendant in this action and defendant is entitled to a summary judgment from this honorable court in favor of the defendant rejecting all of plaintiff’s demands with prejudice'and at his cost.”

Plaintiff opposes the Motion for Summary Judgment, contending that defendant failed to plead any constitutional issues, in the trial court or in the Court of Appeal and is foreclosed from urging any such alleged issues in this Court. Plaintiff urges that because defendant did not apply for a rehearing in the Court of Appeal and did' not apply to this Court for Certiorari, it is foreclosed from seeking affirmative relief herein or from urging error in the Court of Appeal.

The Rosenbloom case involved a distributor of nudist magazines in the Philadelphia area, who was arrested at a newsstand while distributing his magazines. Obscenity charges were preferred against him, and thereafter news stories with respect to the magazines and the arrest were-newscast. A jury acquitted Rosenbloom of criminal obscenity, and he then brought suit for damages against defendant whose defense was truth and privilege. The United States Supreme Court disallowed damages, stating:

“If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety. * * * Whether the person involved is a famous large scale magazine distributor or a ‘private’ businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.

“We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. Calculated falsehood, of course, falls outside ‘the fruitful exercise of the right of free speech.’ Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964).”

Initially, we shall determine whether defendant may file a motion for summary judgment, which it equates with a peremptory exception, in this Court when it neither applied for rehearing in the Court of Appeal nor applied to this Court for review. Peremptory exceptions founded on law may be pleaded in the Supreme Court. Bullock v. Bullock, 174 La. 839, 141 So. 852. An exception of no cause of action can be filed in the Court of Appeal or in the Supreme Court before final judgment. Columbia Oil Co. v. Police Jury of Natchitoches Parish, La.App., 184 So. 580. The exception of no cause of action can be filed at any stage of the proceedings; when it is filed, the plaintiff does not acquire rights which he previously did not have. Ross v. Justice, La.App., 229 So.2d 756. Exceptions of no right of action and no cause of action may be filed at any stage of the suit, even in the Supreme Court, but must be filed prior to judgment. Williams v. Missouri Pac. R. Co., La.App., 6 So.2d 79.

LSA-C.C.P. Art. 2167, Finality of Judgment, provides:

“A judgment of an appellate court becomes final and executory when the delay for applying for a rehearing has expired and no application therefor has been made.

“When an application for a rehearing has been applied for timely:

“(1) A judgment of the supreme court becomes final and executory when this application is denied; and

“(2) A judgment of a court of appeal becomes final and executory when the supreme court denies a timely application for a writ of certiorari in the case; or on the expiration of thirty days after the denial of a rehearing by the court of appeal, if no timely application has been made to the supreme court for a writ of certiorari.” (Emphasis supplied.)

In our determination of defendant’s right to file herein for summary judgment, we have to consider whether the Court of Appeal judgment against it was a final judgment. In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, 153 (1971), we distinctly said:

“Further, at the time a writ of certiorari is granted, this court may itself restrict its subsequent review. When, in granting a writ of review, this court lim- , its it to certain issues and denies it as to all other specifications of error, the court of appeal judgment is final as to the latter and cannot be reconsidered. Deposit Guaranty National Bank v. Shipp, 252 La. 745, 214 So.2d 129 (1968).

“Similarly, when (as here) both parties apply for review, this court’s denial of the application of one constitutes its final determination upon the matters included therein. This court then will not pass a second time upon these matters at the hearing on the review granted through the application of the other party. Gastauer v. Gastauer, 152 La. 958, 94 So. 897 (1922).

“Under the present circumstances, therefore, our denial of the defendant’s application for certiorari constitutes a final determination by us as to the issues presented therein. * * * ”

In Blades v. Southern Farm Bureau Casualty Ins., 237 La. 1, 110 So.2d 116 (1959), we held that a party who has not applied for a writ of review of a judgment of the Court of Appeal is considered as acquiescing in the judgment and cannot have it changed to the detriment of the adverse party when the case comes before this Court on a writ of review granted upon the application of the latter. (Legislatively overruled on other points. See, LSA-C.C. P. 4501.) See, McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183. Likewise, in Pennington v. Justiss-Mears Oil Company, 242 La. 1, 134 So.2d 53 (1961), we held that it has been held consistently that we cannot amend a judgment to the prejudice of one at whose instance a writ has been issued when the opposing litigant has failed to make application seeking such an amendment.

Under the above law and jurisprudence, we conclude that when the recited time for applying to the Court of Appeal for rehearing passed and defendant did not apply for such rehearing, the Court of Appeal judgment against defendant became final and the property of plaintiff. Despite the ruling of the United States Supreme Court, supra, in Rosenbloom — which supports in great part defendant’s contentions as to the instant award — defendant cannot now under the present facts and circumstances avail itself of the decision by means of a Motion for Summary Judgment filed herein. There is no retroactivity of Rosenbloom to these concluded procedural matters.

Lake Charles American Press, as defendant-respondent, filed a supplemental brief in this Court in which it urges that any recovery whatsoever to the plaintiff should be denied. It also reiterates many of the arguments submitted by it when the case was argued here on December 13, 1971.

Defendant states that it is aware of the rule of law, discussed supra, that a judgment of the Court of Appeal will not be modified by this Court to the benefit of the parties who did not apply for writs and to the detriment of the adverse party. It urges, however, that this Court under its equity powers may make an exception to the rule and has done so before; the case of Department of Highways v. Clemmons, 252 La. 51, 209 So.2d 18 (1968) ² is cited in support of defendant’s contention.

We do not find that Clemmons is apposite to the present matter. It had peculiar and exceptional facts and circumstances of its own, and under its unusual facts we were constrained to exercise our equity powers. Herein, because of our findings supra, we neither acquiesce in defendant’s contentions nor find that this is a matter demanding exception to the extent that we should exercise our equity powers.

The case of City of New Orleans v. Grosch, La.App., 49 So.2d 435, La.App., 49 So.2d 867,³ cited by counsel for defendant, is not apposite to this case. That case involved a constitutional amendment which had not been ratified at the time of trial in the district court; the case was remanded to the district court by the Court of Appeal for consideration of constitutional issues. Herein, as stated supra, we are concerned with a United States Supreme Court decision, Rosenbloom, rendered after Francis had become the owner of the Court of Appeal judgment; therefore, there is a finality in this case which did not exist in the Grosch matter.

In supplemental brief, defendant further contends, “In the alternative, this Court should remand this case to the district court with instructions for the trial judge to consider a motion for summary judgment in favor of defendant denying any relief whatsoever to the plaintiff on its merits.” Under our findings supra and infra, this case neither demands nor merits a remand to the trial court for its consideration of defendant’s motion for summary judgment.

We must, however, take cognizance of Rosenbloom insofar as it affects plaintiff’s application for an increase in the award to him by the Court of Appeal. We must also determine the correctness of the errors, supra, assigned by plaintiff to the Court of Appeal judgment in the light of Rosenbloom. We find that the erroneous reporting of Joseph B. Goodwin, reporter for defendant, was an honest mistake; we likewise find that plaintiff has been exonerated as a “peeping tom,” although he and his family suffered humiliation and some loss of income. At the time Goodwin reported the news story, he did not know that his reporting was false; he exercised no reckless disregard for its falsity vel non. His uncontradicted testimony, supra, supports these findings.

We find that the matter reported by Goodwin was one of public concern and general community interest, although it involved a private citizen. It was a matter protected by the First Amendment to the United States Constitution. Rosenbloom v. Metromedia, supra. Therefore, since the judgment against the Lake Charles American Press is final, as found supra, we are constrained to affirm the judgment of the Court of Appeal awarding plaintiff the sum of $1,500.00.

For the reasons assigned, the judgment of the Court of Appeal, Third Circuit, is affirmed. Defendant’s Motion for Summary Judgment is denied. All costs of this Court are to be borne equally between plaintiff and defendant.

DIXON, J., concurs.

1 . “The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may he made at any time after the answer has been filed. The defendant’s motion may be made at any time.

“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P., Art. 966.

2 . “Where Court of Appeal ruled that landowners were entitled to recover approximately $119,000 from department of highways and highway contractor and contractor’s surety for activities for which under contract the department was ultimately liable, and contractor and its surety failed to apply for a rehearing in that court, and landowners sought to enforce judgment on theory that it was final as to contractor and surety, and on certiorari by the department, the Supreme Court ruled that landowners were only entitled to recover approximately $25,000, the Supremo Court under its equity jurisdiction would direct district court to enjoin enforcement of money judgment rendered by the Court of Appeal.” Syllabus #2 from Department of Highways v. Clemmons, 252 La. 51, 209 So.2d 18, 19 (1968).

3 . “The City of New Orleans and others brought suit against John J. Grosch, Sr., Criminal Sheriff of the Parish of Orleans, and his Chief Deputy to enjoin them from interfering with the Police Department of the City of New Orleans in operation of a ‘Central Lockup’ in building, and the defendants, in reconven tion, prayed that writ of mandamus issue. The Civil District Court for the Parish of New Orleans, Division ‘C’, No. 299,724, Louis H. Yarrut, X, rendered a judgment adverse to plaintiffs, and they appealed. The Court of Appeal, Janvier, J., held that as plaintiffs had no opportunity to present in the Civil District Court their contention that certain act violated constitutional provision adopted after trial in the Civil District Court, the case should he remanded for determination of the constitutional question.” Resumé by West Publishing Co., City of New Orleans v. Grosch, La.App., 49 So.2d 435.

“ * * * On application for rehearing, McBride, Jr., held that all the court intended to do originally and all that they did do was order the case remanded in order that the contention that Act No. 23 of the Second Extraordinary Session of 1950 was unconstitutional could be considered, and since court had no intention of expressing either approval or disapproval of findings of district court on first trial original decree would be amended so that the judgment would be set aside and the matter remanded for further proceeding.

“Decree amended with reasons. Rehearing refused.” Resumé by West Publishing Co., City of New Orleans v. Grosch, La.App., 49 So.2d 867.