McDonald v. Murray ( 1973 )

Wright, J.

This is an action for libel. Appellant-plaintiff was a candidate for the state Senate from the first district in the 1968 primary election, and in 1969, a candidate for a position on the King County Council. Respondent, John S. Murray, was the principal stockholder in Queen Anne News, Inc., which corporation published several community newspapers, including The Lake City Star. Respondent Murray was editor of The Lake City Star.

The 1968 primary election was held on Tuesday, September 17, 1968. On September 11, 1968, an editorial was published in The Lake City Star.

The primary election for positions on the King County Council was on February 11, 1969. On January 29, 1969, an editorial unfavorable to appellant was printed in The Lake City Star.

In the 1968 primary election, appellant’s opponent for the Republican nomination for the Senate was Francis E. Holman. The editorial of September 11, 1968, was largely devoted to praise of Holman, and contained nothing actionable. It is only referred to by appellant to show respondent Murray’s “strong personal dislike” for appellant.

The editorial of January 29, 1969, was less restrained. Appellant was the contractor for the construction of a school building, the new Horizon View Elementary School, for the Shoreline School District. Respondent alleged appellant was unduly slow in completing the building. In connection with the delay issue respondent said: “McDonald has cost the district time, money and aggravation.”

On the same subject of delay in construction, respondent said appellant had endangered the lives of children by delay in getting them out of the old building. It was also said the new building was “scheduled for completion last August 15.” Appellant contends that statement was misleading due to delays in letting the contract.

The other allegation related to some four liens filed by subcontractors after appellant had certified that all work had been paid for. In the editorial, the certification was referred to as an “affidavit” which, appellant contends, implied he was guilty of perjury.

The editorial stated a bill was pending in the legislature at that time which would remove any doubt that appellant was guilty of larceny. The bill referred to was house bill No. 154 in the 1969 regular session. Murray was one of the sponsors of the bill. A similar bill, house bill No. 734, passed the House in the 1967 session, but did not pass the Senate.

Appellant complains because the editorial stated the penalty provided in house bill No. 154 was “up to five years in jail and a $10,000 fine”; whereas the bill actually provided “for imprisonment of not more than five years or a fine of $5,000, or both.”

The trial court granted to defendants (respondents) a summary judgment of dismissal. We are here concerned with the propriety thereof.

The rule is that a summary judgment will be granted only if there is no genuine issue as to a material fact. Barber v. Bankers Life & Cas. Co., 81 Wn.2d 140, 500 P.2d 88 (1972), and cases cited therein.

A “material fact” is defined in Hansen v. Sandvik, 128 Wash. 60, 63, 222 P. 205 (1924), as follows:

“Material” is defined as “important,” “more or less necessary,” “having influence or effect,” etc. Black’s Law Dictionary. And “a material fact is one that is essential to the claim or defense, application, etc. without which it could not be supported.” Black’s Law Dictionary.

Even if as is contended by appellant, the statements contained in the editorial of January 29, 1969, were highly unfair, they were not actually untrue. While it is obvious and admitted that respondent Murray did not like appellant, such does not constitute actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964). “Actual malice” is therein defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.” That the term “actual malice” does not include hostility, vindictiveness, nor spite is also stated in Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 19 L. Ed. 2d 248, 88 S. Ct. 197 (1967), and Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970).

In St. Amant v. Thompson, 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968), it was said: “Failure to investigate does not in itself establish bad faith.” In the instant case, respondent Murray did make investigation; he examined records and interviewed the school district employee in charge of construction. There being nothing to indicate actual malice as defined in the cases cited, and substantial negation thereof, the summary judgment must be and is affirmed.

Finley, Rosellini, Hunter, Hamilton, and Stafford, JJ., and Lawless, J. Pro Tern., concur.