William D. Hurley, Appellant, v. Northwest Publications, Inc., Appellee, 398 F.2d 346 (8th Cir. 1968)

This is a timely appeal by plaintiff, William D. Hurley, from final judgment dismissing his complaint asserting damages for libel and invasion of privacy upon the sustaining of defendant's motion for summary judgment. The record consists of pleadings, affidavits filed by both parties, and depositions of various persons, including plaintiff. Jurisdiction is based upon diversity of citizenship and the requisite amount.

Plaintiff asserts he is entitled to a reversal for the following reasons:

1. The court erred in determining that defendant had a conditional privilege to publish in its newspaper a fair summary of assertions alleged to be libelous which were contained in a complaint filed against plaintiff in a state court proceeding.

2. The court erred in determining as a matter of law that no genuine fact issue exists in support of the existence of malice on the part of the defendant.

Judge Neville, who heard this case in a well-considered opinion reported at 273 F. Supp. 967, has fully and fairly set out the factual background and has clearly demonstrated that the authorization of the commencement of the state court action containing the alleged libelous matter, by the probate court, after a full disclosure of the basis of such cause of action, makes the publication of a fair summary of the complaint conditionally privileged, and that no basis exists for a finding of malice on the part of defendant publisher. No purpose will be served by recovering the ground so well covered by the trial court in its reported opinion.

St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262, and Walker v. Pulitzer Publishing Co., 8 Cir., 394 F.2d 800 (May 15, 1968) lend additional support to Judge Neville's holding on the malice issue. Mahnke v. Northwest Publications, Inc., Minn., 160 N.W.2d 1 (May 31, 1968), relied upon by plaintiff, is readily distinguishable factually from our present case and in our view the legal principles there set forth are not inconsistent with the legal position taken by the trial court in our present case.

The judgment of dismissal is affirmed upon the basis of Judge Neville's opinion.