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May 12, 1969

William W. SELLERS, the Sellers Company, Inc. and Sellers Service, Inc.

The opinion of the court was delivered by: KRAFT

 This is defendant's motion to dismiss and for summary judgment in this action for damages arising out of an alleged libel which appeared in an article published in "The Law" section of defendant's magazine on May 6, 1966. The article reads as follows:

' Duffer's Dilemma
'William Sellers runs a heating-equipment company near Philadelphia, and he plays golf for business rather than pleasure. One June day in 1964, Sellers' game was running true to form at the Manufacturers Golf and Country Club in Oreland, Pa. At the third tee, his mind on a potential deal, Sellers hit the ball so awkwardly that it flew to the rear and struck one of his partners, James Walsh, sales manager of the tank division of Bethlehem Steel in Dunellen, N.J., As a result. Walsh was blinded in his left eye.
' Since Sellers was working while golfing Walsh sued both him and his company for $250,000 claiming that Sellers had negligently failed to wipe his hands before swinging, causing the club to slip. In answer. Sellers moved to have the suit dismissed on a seemingly unassailable ground: anyone who ventures on a golf course 'assumes the risk of being struck by a ball' and is thus barred from seeking damages.
'To everyone's surprise, Sellers' motion was shot down by Judge Alfred Luongo of the Philadelphia U.S. District Court, which had jurisdiction because Sellers and Walsh live in different states. Judge Luongo readily agreed that every golfer 'assumes the risk or is guilty of contributory negligence if he intentionally or carelessly walks ahead or stands within the orbit of the shot of a person playing behind him.' But when the ball struck Walsh, said the judge, he was sitting in a golf cart 20 ft. to Sellers' rear - a place of supposedly perfect safety. As a result Walsh cannot be said to have 'voluntarily assumed the risk' of being partly blinded. Ruled the judge: Duffer-Defendant Sellers must stand trial." (The above italicized excerpts represent the alleged defamatory portions of the Article)

 In their complaint, plaintiffs, in part, allege that the article "* * * is replete with statements that are false, misleading, or flip, which defame Plaintiff by holding him up to public ridicule as a stupid, awkward and incompetent person and portrays him as a crass, materialistic, selfish and thoughtless businessman, interested in nothing in life but business. * * *"

 Additionally, plaintiff and his corporations complain that the article defames their position in business and has subjected them to public disgrace by portraying plaintiff "* * * as one who has traded solely on personal and social friendships and relationships as a means of advancing his own business interests and career to the exclusion of all other factors."

 Apart from defendant's contention that the article is not libelous, Time argues that: "* * * even assuming, contrary to fact, that the article were susceptible of a defamatory meaning, it is privileged under the common law rule of a fair report of judicial proceedings * * *" *fn1" and under the constitutional privilege *fn2" accorded to publications touching upon public issues or matters of public concern which has developed since its promulgation in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Time Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967); Curtis Publishing Co. v. Butts and Associated Press v. Walker, (together) 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967); United Medical Laboratories, Inc. v. Columbia Broadcasting Systems, Inc., 404 F.2d 706 (9 Cir. 1968), cert. denied 394 U.S. 921, 89 S. Ct. 1197, 22 L. Ed. 2d 454 (March 24, 1969); Bon Air Hotel, Inc. v. Time, 295 F. Supp. 704 (S.D.Ga.1969).

 Plaintiffs do not dispute the public interest in the decision of this Court in Walsh v. Sellers. *fn3" However, they claim that the aforesaid privileges were lost because of the improper way in which Time unfairly and inaccurately portrays plaintiff in a "slanted", "smart alecky" and "flippant" manner with a reckless disregard of the actual facts caused by defendant's failure to properly check out the story.

 After argument and careful consideration of the motion, with its attached materials, the article and the pertinent law, it is the opinion of the Court that the article comes within the common law and constitutional privileges previously set forth.

 We disagree with the plaintiff's contention that the article loses its privilege by reason of the alleged "flippant" and "smart alecky" style of writing which was utilized by Time to create reader interest. Even such a respected periodical as United States Law Week, sometimes adds "color" to enliven an otherwise routine and dull account of a legal decision. *fn4"

 The Time article, read as a whole, fairly reports the result of Judge Luongo's decision. Plaintiff argues that Time's failure to explain to its readers the legal effect of a motion for summary judgment, whereby the facts must be construed in the light most favorable to the party opposing the motion, gave the readers of the article the false impression that Sellers did not dispute the ...

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