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GULF PUBLISHING COMPANY, INC. AND DAVID BEAN v. WEBB LEE AND TOMMY GOLLOTT

MAY 25, 1983

GULF PUBLISHING COMPANY, INC. AND DAVID BEAN
v.
WEBB LEE AND TOMMY GOLLOTT



BEFORE BROOM, BOWLING AND HAWKINS

HAWKINS, JUSTICE, FOR THE COURT:

Gulf Publishing Company, Inc., and David Bean appeal from a judgment rendered against them by the Circuit Court of the First Judicial District of Harrison County in favor of Webb Lee and Tommy Gollott for $100,000 each actual damages and $50,000 each punitive damages, totaling $300,000.

The issue we address on this appeal is whether a newspaper publisher and one of its reporters are liable, under the decisions of the United States Supreme Court and this Court, for a factually inaccurate newspaper article concerning two elected officials. This question requires a consideration of the freedom of press clause of the First Amendment to the United States Constitution as heretofore interpreted.

 We are persuaded the judgment cannot stand. We reverse and render.

 FACTS

 Gulf Publishing is a corporation with principal offices in Gulfport, and publishes a daily newspaper, The Daily Herald. In 1979 David Bean, a reporter, covered county affairs for

 this newspaper. Webb Lee was the incumbent circuit clerk, serving his fourth term, and Tommy Gollott was an elected member of the House of Representatives of the Mississippi Legislature from Harrison County. Both were candidates for re-election in the Democratic primary and general election held that year. *fn1

 Hue Snowden was an elected member of the Harrison County Board of Supervisors from District 4, completing his second term. In the west central part of District 4, and within Section 20, Township 6 South, Range 12 West, there is a public road known as "Mennonite Road," running east and west. In 1979 there was a public road, its south end beginning at Mennonite Road and extending approximately three-sixteenths of a mile north, known as "Russ Road." Mennonite Road and Russ Road were hard-surfaced. The public right-of-way did not terminate at the north end of the paved portion of Russ Road; an old trail, which once was a log road, extended north from Russ Road for another four to five hundred feet.

 The right-of-way for Russ Road and the unimproved extension beyond its north end was encompassed in a right-of-way easement granted Harrison County by Norwood T. Latimer on June 5, 1972, 50 feet in width and extending north from Mennonite Road a distance of 1,309 feet.

 Also, on October 25, 1972, Templeton Fowlkes, the owner of approximately 270 acres adjacent to and north of the Latimer realty, granted a right-of-way easement to Harrison County 50 feet in width, beginning at the north end of the Latimer easement and running north to the north line of Section 20.

 Thus, in 1972, Harrison County acquired a road right-of-way 50 feet in width beginning at Mennonite Road on the south, and continuing north for almost a mile to the south section line of Section 17. The record in this case does not show whether Russ Road was a public road prior to 1972.

 On February 3, 1978, Mr. Fowlkes executed a warranty deed unto Webb L. Lee and Thomas A. Gollott to the 270 acres, subject to "any and all recorded restrictive covenants, rights-of-way and easements." A title opinion rendered Messrs. Lee and Gollott specifically noted this 50-foot easement from the north to the south boundary of the property they were acquiring.

 Subsequent to the acquisition of the property, Messrs. Lee and Gollott planned a rural subdivision of a

 part of the realty, consisting of lots ranging from slightly more than three acres to over eight acres in size. The subdivision was surveyed, platted, and titled "Big Hill Acres."

 The road running north and south through the center of Big Hill Acres is not named on the plat, but was called "Big Hill Road" by Mr. Lee. At the north end of the subdivision, running west off "Big Hill Road," is another road, not named on the plat, but which was named by a Board of Supervisors' order as "Tootle Road." Tootle Road is approximately 1,000 feet in length, and terminates in a cul-de-sac at its west end at lots 3 and 4 in the subdivision. The distance in length of Big Hill Road from the south end of the subdivision to the east terminus of Tootle Road is approximately 3,400 feet. *fn2

 Messrs. Lee and Gollott began improving the subdivision in 1978, clearing, draining, and preparing for roads. They contracted for and paid for the clearing, filling, and hard-surfacing of Big Hill Road through their subdivision to the intersection with Tootle Road, and also approximately 600 feet on the east end of Tootle Road. The paving was completed in May, 1979.

 During the same period the county also placed an asphalt overlay on Russ Road connecting with the subdivision.

 On June 1, 1979, Messrs. Lee and Gollott granted a road right-of-way easement to the county for Tootle Road, and on June 5, 1979, the Board entered an order accepting the road for public maintenance, and naming it "Tootle Road."

 Mr. Snowden's daughter, a Mrs. Tootle, lived in a trailer, and subsequently in a home constructed on a lot on the south side of Tootle Road.

 In 1979 there was an ongoing controversy between Mr. Snowden and some of his constituents who lived on or were required to travel Huston Ladnier Road located in District 4. *fn3 These constituents pressed the Board of Supervisors and Mr. Snowden to pave the road, and claimed they were being discriminated against by his failure to do so. Some of them appeared before the Board, and statements were made to the press.

 The Daily Herald published two editions daily, the Gulf Coast Edition and the Metro Edition, which will be more fully discussed below. On June 20, 1979, the Metro Edition published an article written by Bean highlighting the Huston Ladnier Road controversy. The article related that 23 families

 who lived on the road, two representatives of which had appeared before the Board and on television, wondered if their "attitudes" would ever improve enough for Snowden to pave the road, and one woman who appeared on television said Snowden told her he would not pave the road until she apologized. The article reported Snowden as stating at a Board meeting he would not pave the road until the people living there "change their attitudes."

 The article further stated Snowden denied this and gave as his reason for not paving the road that he had not been given the necessary easements. Continuing, the article stated some of the residents might file for a court order stopping paving of another road which had no houses on it.

 The article stated that Snowden, during his current term expiring in 1979, had paved many miles of road in his district, most of which did not have as many people on them as Huston Ladnier Road, and most of the roads were only about 10 feet wide and some too narrow for cars to pass. Further, it stated Snowden had previously told a reporter, "It's all these people out here need," when asked why the roads were so narrow.

 The next two paragraphs of the article, resulting in the lawsuit, are as follows:

 He has also widened and paved Hill Top Road on which there are only a half dozen houses but which also provides access to a new subdivision being built by Circuit Clerk Webb Lee and State Rep. Tommy Gollott.

 At the end of Hill Top Road, Snowden has paved the mile-long Tootle Road. The only home on that road is a trailer occupied by Snowden's daughter.

 The article continued with a quote from Snowden that he was going to pave the roads in his district one by one, with the ones on which he had right-of-way easements first, and he was not going to take roads by eminent domain.

 The article concluded with a quote from Snowden that the families on Huston Ladnier Road were "mad, bitter and fighting me. As soon as the election is over, I'm hoping they'll come in and go along with me." *fn4

 The following day, on June 21, 1979, the same article appeared in the Gulf Coast Edition of the newspaper,

 with the two paragraphs above quoted in full deleted.

 Also on that day the Metro Edition contained an article giving Mr. Lee's version of the story, in which he denied that the county had paved any portion of the road in the subdivision. *fn5

 On June 30, 1979, the newspaper published the following correction:

 CORRECTION

 The Metro editions of the The Daily Herald for Wednesday, June 20, 1979, and Thursday, June 21, 1979, erroneously alleged that Harrison County Supervisor Hue Snowden "had widened and paved Hill Top Road . . . which provides access to a new subdivision being built by Circuit Clerk Webb Lee and State Rep. Tommy Gollotte," and that "Snowden has paved the mile-long Tootle Road. The only home on that road is a trailer occupied by Snowden's daughter."

 The statements are incorrect. The roads are on private property owned by Lee and Gollott, and they are paying for the paving themselves.

 The Daily Herald regrets the error and offers its sincere apologies to Supervisor Snowden, Circuit Clerk Lee and Rep. Gollott.

 As a result of the June 20, 1979 article, Lee and Gollott sued Gulf Publishing and Bean for malicious libel.

 The testimony of the witnesses as to the circumstances leading to the publication of these two paragraphs is in conflict.

 Mr. Lee testified that he had two conversations with Bean on June 20. The first occurred at approximately 8:00 a.m. Lee stated that Bean told him he had "reliable information that Hue Snowden paved that road out there, those two roads out there, and he wanted to know if that was true or not." He said Bean first referred to the road as "Hilltop Road," and asked, "Do you know if Mr. Snowden paved Hilltop Road?" Lee testified he replied that he did not know anything about "Hilltop Road." Then, Bean stated it might be "Big Hill Road." According to Lee he then told Bean that Big Hill "is on my property and I know Mr. Snowden didn't pave that." Lee testified Bean asked about Tootle Road, and he was also informed "Mr. Snowden did not pave Hilltop Road - did

 not pave Tootle Road." Mr. Lee also testified that he offered to furnish Bean records of cancelled checks and invoices to prove he had paid for the paving, but that Bean had told him this was unnecessary.

 Mr. Lee stated that later in the day he received a message at his office that Bean wanted to talk with him, and that he telephoned Bean at the newspaper office. There is some question about the time of this second conversation. According to Mr. Lee's testimony during trial, the conversation took place between 11:00 a.m. to 12:30 p.m. In a pretrial deposition, when questioned about the time of this second conversation, he replied:

 Right, about one; sometime between twelve and one, and I called him back no later than, I would say, one-thirty. It might have been closer to one; I couldn't say for a fact.

 In the second conversation Mr. Lee testified Bean asked him again, "Didn't you tell me this morning that Mr. Snowden didn't have anything to do with paving Hilltop, Big Hill, Russ, or Tootle Road, any of those that you may own?" Mr. Lee then testified he reaffirmed to Bean that Mr. Snowden did not have anything to do with paving anything on "our private property." He then stated Bean told him that was funny, that Mr. Snowden had told him he (Snowden) did the paving.

 According to Mr. Lee he then told Bean it was hard for him to believe Mr. Snowden would tell him he had done something that might make him liable to go to the penitentiary, and that he was going to call Mr. Snowden and "get it definitely straightened out."

 He testified that when he hung up the phone he called Mr. Snowden.

 There is no reference in the record, however, from further testimony of either Mr. Lee or Mr. Snowden, as to any conversation between the two of them following this second conversation between Mr. Lee and Bean.

 According to Mr. Snowden the only conversation he had with Bean was on June 15, the Friday previous to the publication. He testified he and Bean joked with one another, and then Bean "started talking to me about the Huston Ladner Road and Big Hill and Tootle Road." Bean first asked Snowden how many houses were on Huston Ladner Road, and he replied ...


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