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CHARLES B. FERGUSON, ET AL. v. WILLIAM E. WATKINS

FEBRUARY 29, 1984

CHARLES B. FERGUSON, ET AL.
v.
WILLIAM E. WATKINS, ET AL.



EN BANC.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This is a libel action brought against a newspaper and its editorial columnist.

 Three physicians operating the emergency room in a publicly funded hospital demanded ouster of the hospital administrator. They were subjected to searing commentary by an editorial columnist in a local newspaper.

 We hold that such persons are not libeled even though described in caustic if not contemptuous language and even though to a neutral observer the criticism is unfair, so long as clear falsity of fact is not found in the editorial commentary. Alternatively, we hold that such persons are vortex or limited purpose public figures who may not recover in a libel action absent proof of actual malice.

 II.

 A.

 The Marshall County Hospital was built in Holly Springs, Mississippi, many years ago. Construction was publicly funded under the old Hill-Burton Federal Hospital Construction Program. Substantial funding for the operation of the hospital since that time has been provided by the Marshall County Board of Supervisors from funds derived from taxes levied upon the citizens of that county. The hospital receives other public funds via payments on behalf of patients under the Medicare and Medicaid Programs.

 The hospital operates an emergency room the medical services in which are under the direction of three physicians, Drs. Robert P. Tate, Charles B. Ferguson, and David S. Anderson. The emergency room is open from 5:00 p.m. to 8:00 a.m. on weekdays and 24 hours a day on weekends. These three doctors are paid $135,000 per year for their services in the emergency room. In the past, these same three doctors also operated a publicly funded clinic, physically located next door to the hospital, and received from public funds $1,000 a week for this service.

 For a number of years the hospital had operated at a financial loss. On June 1, 1977, the hospital Board of Trustees employed Alvin Word, III as hospital administrator. One of Word's principal assignments was to get the hospital operating on a sound fiscal basis. However, Word "stepped on toes" and soon came into conflict with Drs. Tate, Ferguson and Anderson. This conflict culminated on April 12, 1978, when the doctors delivered to the Trustees a "him or us" ultimatum. The Board elected not to renew Word's contract. Word left the hospital when his contract expired on May 31, 1978. Insofar as the record reflects, Drs. Tate, Et Al. are still working at the hospital.

 On June 15, 1978, William E. Watkins, one of the Defendants below and one of the Appellees here, published an editorial column in The North Mississippi Times entitled "Marshall Viewpoint" . The North Mississippi Times is a weekly newspaper having its primary circulation in DeSoto County. It also has a limited circulation in adjoining Marshall County.

 The commentary in question, the entire text of which is an appendix to this opinion, gave Watkins' assessment of the situation at the Marshall County Hospital. It represents Watkins' somewhat inept defense of Administrator Word whose contract had not been renewed. Watkins claimed that Word had attempted to upgrade the hospital "without asking taxpayers to foot the bill" . After listing some of Word's contributions to the hospital, Watkins turned his attention to the problems he perceived. Watkins insisted that many local residents refused to use the hospital because they thought of it as a "welfare hospital" .

 Much of this editorial column criticized the hospital in general. Only two of eleven paragraphs refer to Drs. Tate, Ferguson and Anderson directly. In those, Watkins opined that Marshall County taxpayers were being "raked over the coals" with the emergency room operation at the hospital. He wrote:

 To be guaranteed $135,000 for three internists to man the emergency room from 5:00 p.m. to 8:00 a.m. and 24 hours on weekends seems very lucrative, especially insomuch as the doctors are not at the hospital all the time but rather available for immediate response if needed.

 I don't blame Drs. Robert Tate, David Anderson and Charlie Ferguson for wanting to get rid of Alvin Word, III, as if had such a good setup, I wouldn't want someone to come along and tear up my little playhouse either.

 Watkins then returned to his criticism of the hospital in general. He charged improper political influence in staffing and administration. He alleged that some people in power preferred to keep the hospital operating in "the red" than to see it become a self-supporting operation. He expressed his opinion that Word had been "let go" because he tried to upgrade the hospital.

 In conclusion, Watkins asked, "Do we have a bad hospital or do we have a bad county government?" He urged citizens to call the United States Department of Health, Education and Welfare and demand an investigation into alleged improprieties in the administration of the hospital.

 Soon after the publication of Watkins' column, the three physician plaintiffs in this lawsuit sent a letter to Pam McPhail, editor of the North Mississippi Times. The letter advised Ms. McPhail that the doctors considered the article libelous and asked that she print a retraction. Ms. McPhail refused to do so.

 B.

 On September 22, 1978, Plaintiffs Tate, Ferguson and Anderson filed their declaration in the Circuit Court of Marshall County, Mississippi. Named as Defendants were William E. Watkins, the columnist who wrote the editorial column in question, Pam McPhail, the editor of the newspaper, and North Mississippi Communications, Inc., publisher of The North Mississippi Times.

 The case was tried from January 6 through January 15 of 1981. At the close of the trial, the jury returned a verdict for the three plaintiff doctors, Tate, Ferguson and Anderson, in the amounts of $6,500, $5,000 and $5,000, respectively. The verdict was for compensatory damages only.

 In due course the Defendants moved for judgment notwithstanding the verdict. *fn1 Defendants argued, among other things, that the publication in question was not libelous and, in the alternative, that the three plaintiffs

 were vortex public figures and hence not entitled to recover absent proof of actual malice. In connection with the hearing on the motion, the Plaintiffs admitted that they had sustained no special damages as a result of the alleged defamatory publication.

 After a full hearing, the learned circuit judge on August 24, 1981, released his opinion. He vacated the judgments previously entered in favor of the three Plaintiffs and in lieu thereof entered in favor of each Plaintiff and against each Defendant a judgment for the sum of One Dollar described as "nominal damages, together with their lawful costs" . *fn2 On the same date, final judgment was entered in accordance with the circuit judge's opinion.

 The three doctor plaintiffs have perfected an appeal to this Court in which they assign as error the aforesaid action of the Circuit Judge. They urge reinstatement of the judgments originally entered in accordance with the jury verdicts.

 c.

 We need be precise about our procedural context. We have here an appeal by the three doctor plaintiffs. They urge reinstatement of the judgments originally entered in their favor in accordance with the jury verdicts. Defendants, however, have not cross-appealed. Both in their brief and at oral argument they state to the Court that they accept the final judgment that they pay each Plaintiff the sum of One Dollar plus costs.

 Our only question, then, is whether the original judgments in favor of Plaintiffs should be reinstated. We examine the record and consider the arguments of counsel in order to determine whether there are grounds for reinstatement of those judgments. While many arguments have been advanced, we have found two independently dispositive, that is, two alternative reasons why as a matter of law these Plaintiffs are not entitled to reinstatement of the original judgments entered on the jury verdicts.

 To be sure, these same reasons may have been adequate to enable Defendants to prevail on a cross-appeal had one been perfected. We do not reach that question, however, for Defendants have taken no cross-appeal, have stated that they consider the matter de minimis, and say they are content to abide by the final judgment of August 27, 1981.

 Though they take no cross-appeal, these Defendants- Appellees are entitled to argue, without having filed a cross-assignment of error, any grounds which are sufficient to sustain the judgment or to reject the appeal of Plaintiffs-Appellants. The grounds upon which we rely below were asserted by Defendants-Appellees in their motion for judgment notwithstanding the verdict and were fully briefed here. Plaintiffs-Appellants have fully responded to those arguments in their rebuttal brief - indeed, Plaintiffs' rebuttal brief is longer than their affirmative brief.

 Without doubt the issues tendered are properly before us. Without doubt the issues have been fully and ably briefed and argued. Without doubt this matter is ripe for decision on the bases described below.

 III.

 We recognize at the outset that in the trial court jury verdicts were returned in favor of all three plaintiff physicians. The jury's verdict necessarily means that the jury found the Watkins' editorial commentary defamatory.

 In our review of this case, and in our decision today, we have scrupulously respected our familiar rules delineating when a jury verdict may be set aside. Paymaster Oil Mill Co. v. Mitchell, 319 So. 2d 652, 657, (Miss. 1975); City of Jackson v. Locklar, 431 So. 2d 475, 478-479 (Miss. 1983). Even so, we find inescapable the conclusion that a jury has returned a libel verdict in rank disregard of the law. See also, Gulf Publishing Co., Inc. v. Lee, 434 So. 2d 687 (Miss. 1983). IV. A.

 Our threshold inquiry into matters of substance is whether the offending editorial commentary was toward these three physician plaintiffs libelous in any context.

 We have repeatedly recognized the common law rule that:

 Any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem

 or lower him in the confidence of the community is actionable per se. See, e.g., Gulf Publishing Co., Inc. v. Lee, 434 So. 2d 687, 695 (Miss. 1983); Natchez Times Publishing Co. v. Dunigan, 221 Miss. 320, 326, 72 So. 2d 681, 684 (1954); Conroy v. Breland, 185 Miss. 787, 797, 189 So. 814, 815 (1939). See also, Restatement, Torts 2d 559 (1977).

 Two restrictions upon the action for defamation are and must be strictly enforced. First, the words employed must have clearly been directed toward the plaintiff. Beyond that, the defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture.

 There is no such thing as a libelous idea. Still, a defamatory communication may consist of a statement in the form of an opinion. Opinion statements are actionable only if they clearly and unmistakably imply the allegation undisclosed false and defamatory facts as the basis for the opinion. See Restatement, Torts 2d 566 (1977).

 On the other hand, nothing in life or our law guarantees a person immunity from occasional sharp criticism, nor should it. Short of becoming a hermit, no person avoids a few linguistic slings and arrows, many demonstrably unfair. It may be true that our law, quite wisely, has moved beyond the child's retort, "Sticks and stones may break my bones but words can never hurt me" . Still our sensitivity to the destructive power of words hardly suggests we assess damages for all bruised feelings.

 These considerations have shaped a rule of law in our "fair comment" cases. Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So. 2d 171 (1957); Reaves v. Foster, 200 So. 2d 453, 455-456 (Miss. 1967). Caustic commentary is simply not actionable libel.

 Viewed fairly, the thrust of Watkins' commentary is an attack upon the governing authorities of Marshall County. Watkins' complaints about the way the hospital is run is directed primarily toward persons other than Drs. Tate, Ferguson and Anderson. Only two of the eleven paragraphs of the article fairly target three physicians at all.

 Watkins does state that these three physicians are guaranteed $135,000 a year "to man the emergency room

 from 5:00 p.m. to 8:00 a.m. weekdays and 24 hours on weekends" . He further charges that "the doctors are not at the hospital all the time but rather available for immediate response if needed" . No one ...


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