Crump v. Beckley Newspapers, Inc. ( 1984 )

NEELY, Justice

concurring in part and dissenting in part.

Gimbel is said to have remarked once that he knew half of his advertising budget was wasted, but he didn’t know which half. I am faced with a similar predicament in reading the majority’s daunting opinion in this relatively straightforward case. I am fairly certain that ninety percent of what has been written here is unnecessary, but I am hard pressed to find the ten percent that is germane.

Perhaps verbosity is an occupational hazard and there is a real danger in tossing around stones within the crystalline judicial chambers. Nevertheless, it is troubling to read an opinion that purports to set out mankind’s thoughts on the issue of libel from the time of Moses (who apparently believed the crime involved but a single element) to that of Brooke Shields (whose opinion as to the necessary elements has apparently not yet been articulated). The danger is not simply that overworked lawyers will be required to pore through material that is of little or no use to them, although that in itself is a considerable burden. The real danger is that in trying to lay out all of the law in a complex field, it is inevitable that some misstatements will be made.

For example, Syllabus Point 10 of the majority opinion states: “The protection afforded by the law of privacy is restricted to persons of ordinary or reasonable sensibilities, and does not extend to the super-sensitive.” This is a clear misstatement of the law. All citizens are protected by the law from unreasonable invasions of privacy. It is not a defense to demonstrate that a particular individual is “supersensitive.” If a supersensitive individual is injured by a statement that would have offended the sensibilities of the reasonable man, that supersensitive individual is entitled to recovery. Although the standard of reasonableness is an objective one, the issue is whether the particular statement or photograph constitutes an unreasonable invasion of privacy; it is not whether the harmed individual would have felt injured by a statement that would not have been injurious to the reasonable man. Therefore, I dissent from today’s ruling to the extent to which it defines invasion of privacy as excluding a class of individuals rather than a class of particular claims.

I am also confused by an inconsistency in the majority’s approach to different legal theories of recovery. When dealing with the appropriation theory, the majority states as an uncontradicted fact that, “Crump’s photograph was not published because it was her likeness it was published because it was the likeness of a woman coal miner.” Therefore, the majority holds as a matter of law that Crump is not entitled to recovery under an appropriation theory. Turning to the false light theory, the majority states that whether the statements in the article referred to the appellant individually is a question of fact for the jury. This is blatantly inconsistent. If the statements and picture relate to a general female coal miner and not the individual plaintiff, no issue is left for the jury. Something that is a fact regarding one legal theory is a fact. It cannot be miraculously transformed into a “question for the jury” simply by attaching a different label to the legal theory of recovery.

The disturbing thing about this confusion is that it is simply unnecessary. This case comes before us on a motion for summary judgment. West Virginia has a long history of disfavoring such motions as a method for disposition of cases where genuine issues of material fact remain, Syl.Pt. 6, Johnson v. Junior Pocahontas Coal Co., Inc., 160 W.Va. 261, 234 S.E.2d 309 (1977), or where different inferences can be drawn from facts that are accepted as true, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 171, 133 S.E.2d 770, 779 (1963). We have also noted that “summary judgments should be entertained and granted with due restraint in civil actions involving issues of negligence ....” Anderson v. Turner, 155 W.Va. 283, 296, 184 S.E.2d 304, 313 (1971). Similarly, in Hutchinson v. Proxmire, 443 U.S. 111, 120 fn. 9, 99 S.Ct. 2675, 2680 fn. 9, 61 L.Ed.2d 411 (1979), Chief Justice Burger indicated that the use of summary judgment motions in libel cases should not be favored. All that was necessary for our decision in this case was to recognize that some factual questions remained unanswered and that a trial would develop a sufficient record for the determination of legal issues. Attempting to answer those legal questions in a factual vacuum is difficult at best and foolhardy at worst.

This opinion is an example of the “More is Better” philosophy. The majority tells us that at the time Moses returned with his sacred tablets, libel consisted of the single element of falsehood. Today the majority refines the definition so that there are now six elements to that offense. What progress we have made! Think of the improvements that can be grafted on to the other nine commandments.

Of course the ancient edict against lying has little more to do with the modern law of defamation than the miracle of the loaves and fishes has to do with the current proscriptions against selling food without a vending license. If the majority wish to look to the Bible for guidance in writing their future opinions I would suggest instead that they turn to the Book of Proverbs where they would find the sage advice in Chapter 17, Verse 28:

Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding.