Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co.

*106 Jackson, J. This is an appeal from an order of the Common Pleas Oonrt sustaining defendant’s motion for summary judgment. In 1969 plaintiff, Thomas H. Maloney & Sons, Inc., was hired to demolish a building. Through some mistake the plaintiff demolished not only the designated building but also a contiguous structure. The owner of this second building filed an action against Thomas H. Maloney & Sons, Inc. In March, 1970, the court granted partial summary judgment for the owner of the building on the issue of liability only. No determination of the amount of damages was made at this time. On Friday, March 13, 1970, defendant published the following account of this judicial proceeding in the final edition of its newspaper, The Cleveland Press: “Friday, The 13th Wasn’t Their Day “Wrong Building Wrecked — $15,000 “Common Pleas Judge August Pryatel ruled today that the Thomas H. Maloney & Sons Wrecking Co., 16891 Brookpark Ed., must pay United G-arage and Service Corp. $15,948.72 for a building wreckers demolished last Mar. 25. “They demolished the building, a repair station for taxicabs, by mistake. ‘ ‘ The station, at 17202 Lorain Ave., was next to a building the wreckers were hired to demolish. Having demolished the right building, Maloney & Sons then tore down the wrong one. “ ‘Well, somebody, I don’t remember who, said we should knock both buildings down,’ Thomas Maloney told the Judge. ‘I guess we got carried away.’ ” The newspaper article was inaccurate in the following respects: (1) The article stated that $15,948 damages were awarded when, in fact, there was no decision on damages. (2) The name of the plaintiff was reported as Thomas H. Maloney & Sons Wrecking Co., but plaintiff’s name is simply, Thomas H. Maloney & Sons, Inc. (3) The article stated that the building demolished was a repair station for taxicabs when, in fact, it was a service station. *107 (4) The story quoted Thomas Maloney as telling the judge, “I guess we got carried away,” when, in fact, Thomas Maloney had been retired for several years, and the business is run by his son, Timothy Maloney. The evidentiary material before the trial court failed to establish that either Thomas Maloney, Timothy Maloney or anyone else had made such a statement. Plaintiff filed this suit alleging that the contents of the newspaper article were false and defamatory in that it held the plaintiff company up to public ridicule and injured the company in its business. Summary judgment was granted for the defendant, whereupon plaintiff appealed and assigned one error: “The trial court erred in granting a Motion for Summary judgment filed on behalf of the Defendant-Appellee. ” For the reasons discussed below, we find this assignment of error is well taken. I. In a recent decision, Gerts v. Robert Welch, Inc. (1974), 418 U. S. 323, 41 L. Ed. 2d 789, the Supreme Court of the United States readjusted the delicate balance between the law of defamation and the freedoms of speech and press protected by the First Amendment. The various pronouncements of the Gerts case necessitate that Ohio’s present libel law be examined and reshaped to comply with the latest mandates of the United States Supreme Court. In Ohio, libel is defined as a false and malicious publication made with the intent to injure a person’s reputation or expose him to public hatred, contempt, ridicule, shame or disgrace, or to affect him adversely in his trade or profession. Becker v. Toulmin (1956), 165 Ohio St. 549; Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 118. Ohio has heretofore recognized two types of libel, libel per se, and libel per quod. There are several distinct differences between the two types. See, e. g. Becker v. Toulmin, supra. First, libel per se is libel by the very meaning of the words used; whereas, libel per quod depends upon interpretation, inducement or innuendo. Libel per se is thus a matter of law, to be determined by the court, whereas libel *108 per quod may be determined by a jury. Second, in libel per se, general damages are conelnsively presumed as a matter of law, and proof of special damages is, therefore, not a prerequisite to judgment. In an action for libel per quod general damages are not presumed and the plaintiff has the burden to plead and prove special damages. Third, if published words are libelous per se, malice of the character necessary to support a judgment is presumed; 1 whereas to make out a prima facie case of libel per quod, the plaintiff must allege and prove express malice. Pursuant to present interpretatioans of Ohio law, a newspaper publication which of itself, reflects upon the character of a person by bringing him into public ridicule, or which affects him injuriously in his trade or profession is libelous per se. Westropp v. E. W. Scripps Co. (1947), 148 Ohio St. 365; The Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 118. Therefore, the publication of a false statement ascribing to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade or profession is libelous. Landrum v. Dombey (1971), 30 Ohio App. 2d 200, 202. The inaccurate portion of the news article which plaintiff claims to be libelous is the alleged quotation from Thomas Maloney, “I guess we got carried away.” This alleged quotation subjects the plaintiff to public ridicule and ascribes characteristics to plaintiff’s workers which are incompatible with the demolition trade, i. e., a penchant for destruction which prevents them from stopping when the assigned demolition job has been completed. Were it not therefore, for the recently released Gerts decision by the United States Supreme Court, we would hold that the false quotation is libelous per se. *109 However, in Gertz, the Supreme Court has apparently . federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 states. ’ ’ 2 Eevelation of the full impact of the Gerts decision on Ohio libel law necessarily awaits possible future court interpretations and legislative enactments. 3 One clear result of the Gerts decision is that a plaintiff may no longer rely upon the doctrine of libel per se, as it was heretofore recognized in Ohio, to form the basis of a libel suit. This result is mandated by the holding of the Gerts case enunciated in the following two quotes: (1) “ [W]e hold that the states may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz, supra, at 810. (2) “We hold that, so long as they do not impose liability without fault, the states may define for themselves the appropriate standards of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Ger tz, supra, at 809. 4 Prior to the two pronouncements quoted above, a private individual could make out a prima facie case of libel per se by showing that the defendant published a false statement concerning the plaintiff, and that the false statement was defamatory on its face. General damages were presumed, as was the malice of the publisher. The publisher’s belief in the truth of the false publication, even if based on probable cause was not a defense, although such belief could be considered to mitigate damages. Wilson v. Ap *110 ple (1827), 3 Ohio 270. The degree of care exercised by the publisher to ascertain the truth of the defamatory statement was irrelevant. Therefore, libel per se is a doctrine which permits a finding of liability without proof of fault in the sense that malice is presumed and belief in the truth of the published statement, even if based upon reasonable diligence to ascertain such truth, is not a defense. The Gerts decision specifically prohibits the imposition of liability without fault in defamation cases. We, therefore, hold that a private individual bringing a libel suit based upon a publication which is defamatory on its face must prove not only the publication of such statement but also actual injury, 5 and fault on the part of the publisher. Such fault may consist of either negligent failure to exercise due care, or a greater degree of fault such as express or actual malice. 6 II. Having reviewed the general legal principles announced in the Gerts decision, and some of their implications and effects upon the law of libel in Ohio, we turn now to application of these principles to the facts and evidence of the case at bar. Initially, we must reject the defendant-appellee’s contention that the substance of the published article is. true, and that any untrue words contained therein are not defamatory. The gist or the sting of the . article was the admittedly false quote attributed to Thomas Maloney that “I guess we got carried away,” which followed his alleged statement to the judge that “Well, somebody, I don’t remember who, said we should knock both buildings down.” This statement is defamatory because of the adverse effect it would tend to have on the plaintiff in his trade or profes *111 sion. See, Goudy v. Dayton Newspapers, Inc. (1967), 14 Ohio App. 2d 207. Defendant’s contention that the publication is protected by the so called “Times Eule” is also rejected. In New York Times v. Sullivan (1964), 376 U. S. 254, the Supreme Court announced what has become known as the “Times Eule,” which is stated at p. 279 of the opinion as follows: “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.” This requirement of a finding of “actual malice” was later extended to suits by public figures in Associated Press v. Walker (1967), 388 U. S. 130, and further extended to suits by private individuals involving matters of public or general interest in Rosenbloom v. Metromedia, Inc. (1971), 403 U. S. 29. The Eosenbloom extension of the “Times Eule” to private persons has been eradicated by the Gerts decision. Litigation involving private individuals who seek damages for publication of a defamatory falsehood are now governed by the principles announced in Gerts, and discussed above. Summary judgment may be granted only when the evidence properly considered discloses no genuine issue as to a material, fact, and the movant is entitled to judgment as a matter of law. The record before us contains evidence which, when properly considered under Civil Eule 56(C), reveals that issues of fact made material by the Gerts decision are genuinely disputed by the parties. The decision of the lower court granting summary judgment for the defendant is consequently erroneous, and must be reversed. Finding that the false quotation is defamatory on its face, we remand to the trial court for a determination of the material issues of fact, to-wit: (1) Was the article published with actual malice? If this finding is made, *112 general damages may be presumed, and the plaintiff may be entitled to punitive damages; 7 (2) If the article is found to have not been published with actual malice, was the defendant guilty of some other degree of fault, whether negligence or express malice; (3) If it is found that the defendant was guilty of negligence or express malice, but not actual malice, the plaintiff is entitled to prove his actual damages. Accordingly, the judgment of the trial court is reversed and remanded for further proceedings consistent with this decision. KkenzleR, P. J., concurs. Manos, J., dissents. Footnotes [1] Such malice has been termed “express malice” and consists of an express design to injure, based upon ill will, hatred, revenge or reckless disregard of the rights of another. 34 Ohio Jur. 2d Libel and Slander, Sec. 58 Express and Implied Malice (1958). Express malice is to be distinguished from actual malice, defined by the U. S. Supreme Court to mean knowledge of falsity or reckless disregard of the truth. [2] Gertz v. Robert Welch, Inc. (1974), 418 U. S. 823, 41 L. Ed. 2d 789 (Dissenting Opinion of Mr. Justice White). [3] See the dissenting opinion of Mr. Justice White for a thorough discussion of the impact of the Gertz case upon state defamation laws. [4] The majority opinion written by Mr. Justice Powell merely forbids the imposition of “liability without fault,” leaving definition of that term to the state courts. The concurring opinion of Mr. Justice Black-mun, however states, “. . . The court now conditions a libel action by private persons upon a showing of negligence,.. .” Gertz, supra, at 813. [5] Actual injury is not limited to out of pocket expenses, but may include customary types of actual harm inflicted by defamatory falsehood such as impairment of reputation, personal humiliation, mental anguish and suffering. Gertz, supra, at 811. [6] See Note 1, supra, for a discussion of the difference between express malice and actual malice. [7] Plaintiff alleges that the article was printed with knowledge that it was false. Defendant denies this claim.