author: BROCK, Justice.

text:
    MEMPHIS PUBLISHING CO., Petitioner, v. Ruth Ann NICHOLS and Bobby Lee Nichols, Respondents.
    Supreme Court of Tennessee.
    July 31, 1978.

      Leo Bearman, Jr., Memphis, for petitioner.
    Richard J. Ryan, Sr., Richard Joseph Ryan, Jr., Nancy E. Ryan, Memphis, for respondents.
   OPINION

BROCK, Justice.

On June 5,1971, the following news article appeared in the Memphis Press-Scimitar :

“WOMAN HURT BY GUNSHOT
“Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.
“A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.
“Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.
“Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.
“No charges had been placed.”

Ruth Ann Nichols and her husband, Bobby Lee Nichols, filed separate actions, which were consolidated for trial, charging defamation and an invasion of privacy. The crux of plaintiffs’ charge is that the article published by the defendant falsely implied that Mrs. Nichols and Mr. Newton, the assailant’s husband, were having an adulterous affair, and were “caught” by Mrs. Newton. Plaintiffs charged that “at the time of the publication of the said article the defendant knew, or could have known had it exercised reasonable care, and could have ascertained that the said matters were untrue.”

The undisputed proof showed that not only were Mrs. Nichols and Mr. Newton at the Nichols’ home but so, also, were Mr. Nichols and two neighbors, all of whom were sitting in the living room, talking, when Mrs. Newton arrived around three o’clock in the afternoon. Hearing a commotion, Mr. Newton went outside to investigate and there his wife fired several shots at him. Mr. Newton then ran behind the Nichols’ home whereupon Mrs. Newton entered the house and shot Mrs. Nichols.

A Memphis Press-Scimitar reporter, Men-no Duerksen, testified that he had written the article in question two days before it was published and that it was his practice to go to the police station about 4:30 a. m. each day to read through the reports in search of a story. Two police reports were written regarding the shooting incident at the Nichols’ home although the availability of both reports at the time Mr. Duerksen wrote his story was disputed. The arrest report made no mention of any individuals at the scene of the shooting other than Mrs. Nichols, Mr. Newton and Mrs. Newton. The offense report included information that Mr. Nichols and two neighbors were also at the house when Mrs. Newton arrived. Both reports indicated that the incident took place in the middle of the afternoon.

Mr. Duerksen testified that “police said” and “police reported,” terms he had used in his story, were commonly used by reporters to indicate either that the source of quoted information was a direct quote from a police officer or that the information was gathered from official police reports. Police officers testified that they had not given an oral interview regarding the incident.

The proof showed that the defendant newspaper printed a follow-up of the incident on July 2,1971, stating that an assault charge against Mrs. Newton had been dismissed and that the newspaper’s original account of the incident had regrettably failed to state that Mr. Nichols was present and had tried to prevent the shooting.

Mrs. Nichols testified at trial that “[t]he article in the paper has tore up my home and has tore up my children. We had to move. It’s tore up my reputation. My friends has turned down on me. People has talked about me. They’ve talked about my husband. They’ve talked about my children.” She testified that she had changed her telephone number four times because of harassing phone calls she received. “They would call me and say, ‘Oh, you finally got caught.’ Said, ‘How much did they charge — how much did it cost your husband to get the re-writeup in the paper or get the retraction wrote up? ’ ”

One of Mr. Nichols’ friends and fellow workers testified that people would talk about Mrs. Nichols. In response to the question of what people said about Mr. Nichols’ wife, the witness stated “They said she was a whore.”

At the close of all the proof the trial court granted the defendant’s motion for a directed verdict on grounds that (1) the matter was not “libel by innuendo,” (2) no “fault” had been shown, and (3) that no special damages had been proved. The court indicated uncertainty respecting the correct standard of liability for a newspaper alleged to have defamed a “private” person, in light of the United States Supreme Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The Court of Appeals reversed and remanded for a new trial, holding (1) that T.C.A. § 23-2601 had obviated the need for special damages where the defendant had published an imputation of adultery, (2) that the determination of whether the article was “libelous per se by innuendo” was a question for the jury, (3) that the standard of liability was ordinary care and (4) that there was evidence adduced at the trial from which a jury could find that the defendant did not act with reasonable care under the circumstances. The case was remanded for a new trial.

We granted certiorari to consider the effect of the Gertz decision upon the law of libel in this state and its application to this case.

I

Before the decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), libelous statements were considered to be undeserving of first amendment protection. The libel laws of the individual states traditionally had consisted of common-law principles. In New York Times, however, the Court departed from the common law, holding that the first amendment protected good-faith critics of the official conduct of public officials from defamation suits:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279, 84 S.Ct. at 726.

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) the New York Times doctrine was extended to defamation of “public figures” involved in “public issues.” In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the Court, in a plurality opinion, concluded that the New York Times standard of liability also applied in libel actions by “private” individuals against publishers of defamatory statements relating to matters of “public or general concern.”

However, in Gertz v. Robert Welch, Inc., supra, a majority of the Court concluded that the Rosenbloom plurality had extended the constitutional privilege too far and had failed to strike a proper balance between the reputation interests of private individuals and the interests protected by the first amendment. Although the Court did not mandate that the states must abandon the “actual malice” requirement in actions by private individuals, it did hold that

.so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual.” 418 U.S. at 347, 94 S.Ct. at 3010.

The Court reasoned that “[t]his approach provides a more equitable boundary between the competing concerns involved,” and “recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.” Id. at 347-48, 94 S.Ct. at 3011. The effect of the Court’s holding is to approve an ordinary negligence standard of liability in such cases as one that complies with the requirements of the first and fourteenth amendments.

Moreover, the Court concluded that common-law rules which permit recovery of presumed damages to reputation and the award of punitive damages unduly infringed upon first amendment freedoms.

Concerning presumed damages the Court said:

“For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.
“The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. ... It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” 418 U.S. at 349-50, 94 S.Ct. at 3011.

Likewise, the Court banned recovery of punitive damages unless actual malice is shown:

“We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.” 418 U.S. at 350, 94 S.Ct. at 3012.

In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), the Court further clarified the applicability of the Gertz damage principles. In Firestone the Court allowed recovery for mental pain and anguish as the result of the publication of a false statement even though plaintiff had withdrawn her claim for damages to reputation.

II

The Gertz decision permits each of the states to fashion a rule of liability based upon fault that is less than actual malice, so long as it does not impose liability without fault, to govern actions of libel by “private” individuals against media defendants. Some states have continued to apply the actual malice test, while others have adopted an ordinary negligence test, and still others appear to have chosen some kind of middle ground.

The overwhelming response to Gertz, however, has been to adopt the test settled upon by the Court of Appeals in this case, i. e., an ordinary negligence standard. As the Kansas Supreme Court said in Gobin v. Globe Pub. Co., 216 Kan. 223, 232, 531 P.2d 76, 83 (1975):

“[Pjersons are generally held accountable for their negligence — the lack of ordinary care either in the doing of an act or in the failure to do something. The whole theory of negligence presupposes some uniform standard of behavior for the protection of others from harm. The norm usually is the conduct of the reasonably careful person under the circumstances.”

See also Restatement (Second) of Torts § 580B (1977).

In our opinion, there are manifold reasons for adopting the negligence standard. Among these is the fact that the Gertz decision points to this result. In Gertz, emphasis is placed upon the need to balance freedom of the press with the private individual’s right to protection of his reputation. The New York Times test of actual malice strikes this balance where public officials or figures are concerned. This conclusion is based on the Court’s characterization of public figures as persons who are uniquely able to protect themselves through public rebuttal, and as persons who knowingly expose themselves to an increased risk of defamation. Private individuals, in the opinion of the Supreme Court, “are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” 418 U.S. at 345, 94 S.Ct. at 3010.

In drawing this distinction, Gertz makes it clear that the actual malice test would weight this balance too heavily in favor of the press:

“[W]e believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” 418 U.S. at 343, 94 S.Ct. at 3008-09.

One of the arguments used by opponents of the negligence test is that it will subject editors and publishers to such exacting self-scrutiny that it will have a chilling effect upon the constitutional interest in a free, robust flow of information to the public. E. g., AAFCO Heating and Air Conditioning Co. v. Northwest Publishing, supra. Obviously, this conclusion is contrary to that reached in Gertz, i. e., that a standard more stringent for the publisher than actual malice is entirely proper to protect both competing interests. Troman v. Wood, supra, 340 N.E.2d at 297. Moreover, the overwhelming majority of state courts considering this issue have concluded that no undue chilling effect or self-censorship would result. As was said in Taskett v. King Broadcasting Co., supra, 546 P.2d at 86:

“It is true that greater caution must now be exercised where the subject of a publication is a private person, yet such a rule is totally justifiable in light of the state’s overriding interest in providing a realistic remedy to an otherwise helpless private citizen. It cannot be gainsaid that any social value derived through a defamatory falsehood pertaining to a truly private individual is ‘clearly outweighed by the social interest in order and morality.’ ”

It is our conclusion that the ordinary negligence standard permitted by Gertz for all defamation actions brought by private persons against media defendants, is the only standard of liability that achieves the desired accommodation of first amendment guarantees and the interest in protecting individual reputation. Only this standard “recognizes that the special needs of the private plaintiff require a more stringent standard of liability than is imposed when the plaintiff is a public figure or official who has ready media access and has voluntarily assumed the risk of defamatory comment by placing himself in the public eye.” Note, State Court Reactions to Gertz v. Robert Welch, Inc., 29 Vand.L.Rev. 1431, 1444 (1976).

In determining the issue of liability the conduct of the defendant is to be measured against what a reasonably prudent person would, or would not, have done under the same or similar circumstances. This is the ordinary negligence test that we adopt, not a “journalistic malpractice” test whereby liability is based upon a departure from supposed standards of care set by publishers themselves. See Troman v. Wood, supra.

In our opinion, the appropriate question to be determined from a preponderance of the evidence is whether the defendant exercised reasonable care and caution in checking on the truth or falsity and the defamatory character of the communication before publishing it. In answering the question, the jury may rely on its own experience and instincts to determine whether an ordinarily prudent person would have behaved as the defendant did.

Ill

Under the common law as applied in this state prior to the Gertz decision, defama-tions were classified as either actionable per se or per quod. The primary distinction between libel per se and libel per quod lay in the nineteenth-century development requiring special damages to be plead and proved in libel actions unless the defamatory meaning of the words was apparent on their face. See Fry v. McCord Bros., 95 Tenn. 678, 33 S.W. 568 (1895); Continental National Bank of Memphis v. Bowdre Bros., 92 Tenn. 723, 23 S.W. 131 (1893); Note, Libel Per Se and Special Damages, 13 Vand.L.Rev. 730 (1960). Any libel which was defamatory on its face, i. e., the danger of injury to reputation was apparent from the mere words themselves, has been held to be actionable per se. In such cases actual injury has been conclusively presumed by the court.

Words which were defamatory only in the light of certain extrinsic facts were said to be libelous per quod. See Fry v. McCord Bros., supra, 95 Tenn. at 685, 33 S.W. 568. In the classic case of libel per quod the defendant’s newspaper falsely published a report that the plaintiff had given birth to twins. Such publication was defamatory in light of the fact that the plaintiff had been married only one month. Morrison v. Ritchie & Co., 39 Scot.L.Rep. 432 (1902).

Since Gertz has held that presumed damages are no longer permissible, the per se/per quod distinction no longer has any practical meaning. “A uniform requirement for proof of actual damages obliterates these often illogical distinctions, most of them relics from centuries past.” Eaton, The American Law of Defamation Through Gertz v. Robert Welch and Beyond, 61 Va.L.Rev. 1349, 1434 (1975). We hold, therefore, that the per se/per quod distinction is no longer a viable one. The plaintiff must plead and prove injury from the alleged defamatory words, whether their defamatory meaning be obvious or not.

IY

Whether the news article published by the defendant newspaper concerning the shooting episode at the Nichols’ home was, in fact, understood by readers in its defamatory sense is ultimately a question for the jury. But preliminary determination of whether the article is capable of being so understood is a question of law to be determined by the court. See Restatement (Second) of Torts § 614 (1977); Williams v. McKee, 98 Tenn. 139, 38 S.W. 730 (1897); Langford v. Vanderbilt Univ., 44 Tenn.App. 694, 318 S.W.2d 568 (1959); 50 Am.Jur.2d Libel and Slander § 22 (1970). In our opinion, defendant-newspaper’s motion for a directed verdict in this case must be resolved in favor of Mrs. Nichols. When read and construed in the sense in which the reader would ordinarily understand it, the clear implication of the article is that Mrs. Nichols and Mr. Newton had an adulterous relationship and were discovered by Mrs. Newton, thus precipitating the shooting incident. If so read, it can hardly be doubted that Mrs. Nichols’ reputation would be injured.

In libel actions the burden of proof rests upon the plaintiff to show defamation and prove damages. He need not show, however, that the statement is false. There is a legal presumption of falsity which the defendant may rebut by proving truth as a defense.

In this case, the defendant newspaper does not assert that Mrs. Nichols and Mr. Newton in truth had an adulterous relationship. Nevertheless, the defendant’s principal defense is that all material facts stated in the news article were substantially true, emphasizing in its brief:

“IT IS OF CRUCIAL IMPORTANCE TO NOTE THAT THE RECORD REFLECTS THAT EVERY MATERIAL FACT IN THE ARTICLE QUOTED ABOVE WAS TRUE.
“Mrs. Nichols was in fact treated at St. Joseph Hospital for a bullet wound in her arm after the shooting. A 40-year old woman was in fact held by police in connection with the shooting. A shot was in fact fired at the suspect’s husband. The suspect did in fact find her husband at the Nichols’ home with Mrs. Nichols. The suspect did in fact fire a shot at her husband and then at Mrs. Nichols and did in fact strike her in the arm. No charges had in fact been placed at the time of the writing of the article.”

In our opinion, the defendant’s reliance on the truth of the facts stated in the article in question is misplaced. The proper question is whether the meaning reasonably conveyed by the published words is defamatory, “whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537, 538 (1937). See Lawlor v. Gallagher Presidents Report, Inc., 394 F.Supp. 721 (S.D.N.Y.1975). The publication of the complete facts could not conceivably have led the reader to conclude that Mrs. Nichols and Mr. Newton had an adulterous relationship. The published statement, therefore, so distorted the truth as to make the entire article false and defamatory. It is no defense whatever that individual statements within the article were literally true. Truth is available as an absolute defense only when the defamatory meaning conveyed by the words is true. See Brown v. First National Bank, 193 N.W.2d 547, 553 (Iowa 1972).

V

Under the common law not only was published defamatory matter “presumed” to be untrue but, in many cases, it was “presumed” that the plaintiff suffered damage, even though he proved none and though in fact none may have existed. See W. Pros-ser, The Law of Torts §§ 113, 116 (4th ed. 1971).

Before the Gertz decision, our common law provided that if the plaintiff prevailed in a libel per se action, the jury could award “general” damages to compensate the defamed plaintiff for any proven injury to his reputation, or, in the absence of proof of actual injury, could award compensation for the presumed injury (including general injury to reputation, personal humiliation, and actual pecuniary loss that could not be specifically proven) which normally would be expected to result from the publication of the statement. See Fry v. McCord Bros., supra, 95 Tenn. at 684, 33 S.W. at 570. If proven, “special damages,” such as specific economic or material loss resulting from the defamatory statement could also be awarded to a plaintiff entitled to general damages. And, upon a finding that the statement was published with actual malice, punitive damages could be assessed. See generally, D. Dobbs, The Law of Remedies § 7.2 (1973).

T.C.A., § 23-2605, requires a plaintiff in a libel action to notify a defendant newspaper or periodical of the alleged defamatory statements and provides:

“If it appears upon the trial that said article was published in good faith, that its falsity was due to an honest mistake of facts, and that there were reasonable grounds for believing that the statements in said article were true, and that . a full and fair correction, apology, or retraction was published . . . then the plaintiff shall recover only actual, and not punitive, damages . . . .”

Now, however, as we have noted, supra, Gertz restricts damages to compensation for “actual injury,” and unless “actual malice” is shown, punitive damages are not to be permitted and compensatory damages must be proved, not presumed.

In light of the conclusions we have reached, Mrs. Nichols’ libel suit is remanded to the trial court for a new trial. Mr. Nichols’ suit for libel is dismissed. Both invasion of privacy actions are dismissed as being without merit. See Note, The Invasion of Privacy by Defamation, 23 Stan.L. Rev. 547 (1971). Costs are taxed against petitioner.

HENRY, C. J., and FONEB, COOPER and HARBISON, JJ., concur.

      . In this case, plaintiff is neither a “public official” nor a “public figure.” She holds no public office, does not have general fame or notoriety in the community, has no pervasive involvement in public affairs and has not injected herself into a public controversy.

      . E. g., Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975); AAFCO Heating & Air Conditioning Co. v. Northwest Pub., Inc., 321 N.E.2d 580 (Ind.App.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976).

      . Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216 (1977); Corbett v. Register Pub. Co., 33 Conn.Sup. 4, 356 A.2d 472 (1975); Cahill v. Hawaiian Paradise Park Corp., 56 Haw. 522, 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (1975); Gobin v. Globe Pub. Co., 216 Kan. 223, 531 P.2d 76 (1975); Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975); Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494 (1974), cert. denied, 423 U.S. 883 (1975); Martin v. Griffin Television, Inc., 549 P.2d 85 (Okl.1976); Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex. 1976); Taskett v. King Broadcasting Co., 86 Wash.2d 439, 546 P.2d 81 (1976).

        .E. g. Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975) (gross negligence).

      . See Prosser, Libel Per Quod, 46 Va.L.Rev. 839 (1960). See also Prosser, More Libel Per Quod, 79 Harv.L.Rev. 1629 (1966); Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv.L. Rev. 733 (1966).

      . The extrinsic facts must be plead by way of the “inducement” and the defamatory meaning with reference to those facts by way of the “innuendo.” The allegation showing that the language is directed against the plaintiff is the “colloquium.”
      The word “innuendo” has been a source of confusion in the law of defamation. Frequently, it has been improperly used in its generic sense as the meaning of the inference which may be properly drawn from the words complained of. See Eldredge, Practical Problems in Preparation and Trial of Libel Cases, 15 Vand. L.Rev. 1085, 1089 (1962).

      . The courts of this state have consistently followed the prevailing common-law practice of construing the allegedly libelous words in their “plain and natural” import. See, e. g., Continental Nat'l Bank of Memphis v. Bowdre Bros., supra; Fry v. McCord Bros., supra. Other jurisdictions have followed the seventeenth-century English doctrine of mitior sensu, applicable to slander, which required that words be given an innocent construction whenever humanly possible. See, e. g., John v. Tribune Co., 24 111.2d 437, 181 N.E.2d 105 (1962), cert, denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114 (1962); Johnson v. Campbell, 91 Ohio App. 483, 108 N.E.2d 749 (1952); Tulas Tribune Co. v. Kight, 174 Okl. 359, 50 P.2d 350 (1935); Ruble v. Kirkwood, 125 Or. 316, 266 P. 252 (1928); Manley v. Harer, 73 Mont. 253, 235 P. 757 (1925); Dalton v. Woodward, 134 Neb. 915, 280 N.W. 215 (1938); Ellsworth v. Martindale Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400 (1936).
      The art of construing in mitior sensu probably reached its zenith (or perhaps its nadir) in the famous case of Holt v. Astrigg, 79 Eng.Rep. 161 (1608). In that case the allegedly slanderous language was: “Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved his head; the one part lay on the one shoulder, and another part on the other.” The court held that this was not slanderous per se because “it is not averred that the cook was killed . [N]otwithstanding such wounding, the party may yet be living; and it is then but trespass.” The court was of the opinion that slander “ought to be direct.”

      . As mentioned above, special damages are most significant in a case of libel per quod. In such cases, the plaintiff has no cause of action at all unless he can prove special damages. If special damages are proven, the plaintiff may then recover general damages.


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    Robert F. SMITH, Commissioner, Tennessee Department off Transportation, Petitioner, v. Madison SHELTON and wife, Ollie Shelton, Respondents.
    Supreme Court of Tennessee.
    July 31, 1978.

      Brooks McLemore, Jr., Atty. Gen., Robert J. Ames, Asst. Atty. Gen., Nashville, Ray Hollis, Special Trial Counsel, Waynesboro, for petitioner.
    W. A. Harwell, Harwell, Bottoms & Plant, Lawrenceburg, for respondents.
   OPINION

FONES, Justice.

We granted certiorari in this condemnation case to resolve a conflict of opinion among the members and sections of the Court of Appeals on the question of the proper scope of review to be applied by the Court of Appeals where, after a jury verdict for plaintiff, the trial judge suggests an additur.

What is said herein with respect to the scope of review of additurs applies to remit-titurs, and vice versa. The cases cited herein prior to 1969 involve remittiturs, but insofar as the scope of review is concerned, would dictate the same results when applied to additurs. Remittiturs were authorized by case law in 1858 but additurs were first authorized by Chapter 137, Acts of 1969.

The older view, supported by a substantial majority of the cases, is that the Court of Appeals will not disturb the trial judge’s use of a remittitur, unless it finds an abuse of discretion.

The other view will be referred to as the de novo standard of review. It is of recent origin and has not attained uniformity of expression in the cases that are said to have applied it.

Although remittiturs were judicially authorized in Tennessee long before the turn of the century, we have not been able to find any cases wherein a standard of appellate review of a trial judge’s, use of remitti-tur was articulated prior to 1926. In Pryor Brown Transfer Co. v. Gibson, 154 Tenn. 260, 290 S.W. 33 (1926), the Court, responding to plaintiff’s contention that the amount remitted by the trial judge should be restored, said the following:

“This is only done where it appears that the trial court has abused his discretion, which is not the case here.” 154 Tenn. at 272, 290 S.W. at 36.

No citation of authority was given and no rationale discussed.

Many cases since 1926 have referred to the role of the Court of Appeals in passing on the trial judge’s use of remittitur, as limited to a finding of abuse of discretion, also without discussion of the basis for the rule.

The origin of the de novo review rule cannot be pinpointed with precision. The majority opinion in the instant case represents the strongest advocacy for that school of thought and relies upon Speight v. Newport, 503 S.W.2d 202 (Tenn.App.1973); Jones v. Cocke County, 61 Tenn.App. 555, 456 S.W.2d 665 (1970); Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440 (1958); and the verbiage of the remittitur and additur statutes.

Our research has convinced us that neither of these views provides the proper guidelines for appellate review where the trial judge has disagreed with the jury on the amount that a plaintiff is entitled to recover.

We agree with the dissenting member of the Court of Appeals that the abuse of discretion standard of review has obviously meant different things to different courts. A de novo standard of review, if applied to remittiturs and additurs, would sanction the substitution of judicial judgment for that of the jury in assessing damages, an inappropriate and legally untenable result.

I.

In Speight v. Newport, supra, also a condemnation case, the Court of Appeals observed that the process of reasoning applied to remittiturs could be applied in reverse to additurs, quoted the abuse of discretion rule from a case involving a remitti-tur, and concluded that there was no reason why it should not apply to additurs. At that point the opinion appears to have unequivocally endorsed the abuse of discretion rule. But, prior to an analysis of the proof of damages, the Court continued with a process of reasoning based upon the additur statute that resulted in the conclusion that the trial judge’s suggestion of an additur was reviewable pursuant to T.C.A. § 27-303, a de novo review. The reasoning was that when the trial judge suggested an additur, the State (in the posture of a defendant, in other than condemnation cases) had two choices, (1) a new trial or (2) accept the additur under protest and appeal; that rejection of the new trial amounted to a waiver of the right to try the issue again before a jury and a fortiori, “the question of additur became one which was decided by the trial Judge without intervention of a jury and this action is reviewed here pursuant to T.C.A. § 27-303, with the usual presumption that the judgment of the trial Court is correct unless the evidence preponderates against it.” 503 S.W.2d at 205. We do not agree that the election to accept a remittitur or an additur rather than a new trial results in transforming the case on appeal to a non-jury case reviewable pursuant to T.C.A. § 27-303. That section is expressly limited to cases tried without the intervention of a jury, from which a simple appeal lies. Speight and the instant case were tried with the intervention of a jury and the appeal is expressly governed by T.C.A. § 27-308, being in the nature of a writ of error. Neither the trial judge’s disagreement with the amount of the jury verdict, nor acceptance of a remittitur or additur rather than a new trial, provides a basis for the application of T.C.A. § 27-303 and we expressly overrule that holding in Speight.

In Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440 (1958), a jury verdict of $25,000 was reduced to $12,500 by the trial judge. Plaintiff and defendant appealed, and the Court of Appeals in response to plaintiff’s insistence that the jury verdict be restored held that the trial judge’s remittitur was excessive but that a $5,000 reduction of the jury verdict was proper. The majority opinion of the Court of Appeals in the instant case implicitly regards the following quote as supportive of a de novo review:

“The clear legislative intent, as reflected in the foregoing Sections of the Code, was to confer upon the appellate courts full power and authority to revise and correct all errors consistent with recognized rules of appellate practice and procedure.” 313 S.W.2d at 443.

The above quote was a portion of the Brown Court’s response to the question of whether or not the Court of Appeals had the authority to change the amount of the remittitur suggested by the trial judge. Later, responding to plaintiff’s contention that it was error for the Court of Appeals not to reinstate the jury’s verdict, the Court said this:

“While there is an expression in Lambert Bros. v. Larkins, supra [Tenn., 296 S.W.2d 353], which suggests that this was its duty pursuant to its right of revision to correct errors, we feel that the authority to do so, as well as to correct other errors, rests within the sound discretion of the court. It was not the intention of the Legislature to set up an arbitrary rule to be followed by the courts in every case. Any such attempt to limit the judgment of the courts would come close to the exercise of a judicial function.” 313 S.W.2d at 443-444.

We do not interpret Brown as specifically dealing with the appropriate scope of review of remittiturs and additurs. The Court appears to have restricted the opinion to the power of the Court of Appeals to select a figure different from that awarded by the jury or the trial judge.

The majority opinion in the instant case also relies on the language of the remittitur and additur statutes, to wit, “if the Court of Appeals is of the opinion that . . . ” as authorizing a de novo review. We do not find any language in the statutes prescribing a scope of review of the action of the trial judge in granting remittiturs or additurs. When the Legislature intends to address the scope of review applicable to a particular type of proceeding, it knows how to express it. For example, see T.C.A. § 4-523, § 27-303, § 27-408 and § 27-911.

We think the legislative purpose motivating its very limited entry into the remitti-tur and additur aspects of a civil suit can be clearly seen from the status of the case law at the time of passage of the three acts.

The first remittitur statute became law on April 6, 1911, Chapter 29, Acts of 1911. Prior to its enactment, as heretofore noted, trial judges were authorized to reduce jury verdicts as an alternative to granting a new trial. See Branch v. Bass, 37 Tenn. 366 (1858). However, a plaintiff could not accept the remittitur under protest and appeal. Massadillo v. Railway Co., 89 Tenn. 661, 15 S.W. 445 (1891). If he accepted the reduced amount, rather than a new trial, judgment was entered for that amount, from which plaintiff could not appeal. Plaintiffs were given the right to appeal for the first time by Chapter 29, Acts of 1911.

In Lambert Bros. v. Larkins, 200 Tenn. 674, 296 S.W.2d 353 (1955), the trial judge remitted $5,000 of a $20,000 jury verdict and the Court of Appeals affirmed. De-. fendant’s petition for certiorari, seeking a further reduction of the award was granted, but the majority of the Court affirmed the Court of Appeals. The majority of the Court did not discuss the facts and stated the applicable rule to be that, in the absence of a corrupt verdict, the concurrence of the two lower courts as to the amount of damages, if supported by material evidence, would not be disturbed by the Supreme Court. The majority relied upon Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68 (1951), and some of the language in T.C.A. § 27-119. Mr. Justice Swepston, dissenting, objected to what he regarded as an overly rigid statement of the concurrence rule and factually found no material evidence to support the award at the figure of $15,000. Mr. Justice Swepston reached the conclusion that the Act of 1911 was enacted for the purpose of permitting a plaintiff to accept a remittitur under protest and appeal and that it had no relevance or application to a defendant’s appeal. He reasoned as follows:

“As the law stood before the enactment of sections 1 and 2 of Chapter 29, Acts of 1911, if the Trial Judge thought that the verdict was excessive he could only suggest that the plaintiff make a remittitur; if the plaintiff made the remittitur, then judgment was entered for the lesser amount and, so far as the plaintiff was concerned, that ended the lawsuit with no right of appeal by the plaintiff; the Trial Judge, however, could not require the plaintiff to make a remittitur and if the plaintiff refused to do so, then the only thing the Trial Judge could do was to grant a new trial.
“See the cases cited in Railroad Co. v. Roberts, 113 Tenn. 488, on page 494, 82 S.W. 314, on page 315, 67 L.R.A. 495, decided in 1904.
“The purpose, therefore, of Chapter 29, Acts of 1911, sections 1 and 2, was to change this rule so that whenever the verdict in the Trial Court’s opinion, was so excessive as to indicate passion, prejudice, corruption, partiality or unaccountable caprice on the part of the jury, and the Trial Judge for that reason suggested a remittitur, the plaintiff by said statutes was allowed to accept the suggestion of the remittitur under protest and then appeal to the Court of Civil Appeals at that time .
“Those Code sections, however, have no reference to the rights of the defendant. Again referring to Railroad Co. v. Roberts, supra, 113 Tenn. at page 494, 82 S.W. at page 315, the opinion cites Louisville & N. R. Co. v. Garrett, 76 Tenn. 438; Nashville, C. & St. L. R. Co. v. Foster, 78 Tenn. 351, and Tennessee Coal & R. Co. v. Roddy, 85 Tenn. 400, 5 S.W. 286, for the law before the Act of 1911, which was that even though the remittitur was suggested by the Trial Judge to the plaintiff, the defendant could not be required to abandon or waive his right of appeal as a condition to acceptance by the plaintiff. It is perfectly obvious that this is still the law and is not affected in the least by the Act of 1911, supra.” 296 S.W.2d at 355-356.

We agree with the above-quoted portion of the dissenting opinion. It does not run counter to the majority opinion, but if it should be said to do so, we have no hesitancy in overruling so much of Larkins as may be in conflict therewith, because, in our opinion, the case law and the language of the Act itself support the conclusions reached by Mr. Justice Swepston.

The 1949 amendment to the remittitur statutes was clearly for the sole purpose of permitting plaintiffs to accept under protest and appeal where the trial judge suggested a remittitur on the grounds of exces-siveness as well as on the grounds of passion, prejudice, corruption, partiality or unaccountable caprice. Ezell v. Post Sign Co., 30 Tenn.App. 256, 205 S.W.2d 13 (1947) held that an acceptance of a remittitur by plaintiff where the trial judge held the verdict to be excessive only, could not be reviewed on appeal; that the remittitur statutes authorized appeal only if the verdict was found to be so excessive as to indicate passion, prejudice, partiality or caprice.

“In all other cases the agreement of plaintiff to accept the remittitur has the effect of an agreed order on the question of the amount of the judgment.” 30 Tenn.App. at 262, 205 S.W.2d at 15.

Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445, a 1948 case, was to the same effect and the 1949 amendment followed shortly thereafter. T.C.A. §§ 27-118, 119.

By Chapter 137, Acts of 1969, and Chapter 590, Acts of 1970, the Legislature, in authorizing trial judges to grant additurs for the first time, granted defendants the identical right of acceptance under protest and appeal that the remittitur statutes had given to plaintiffs. T.C.A. § 20-1330.

It is our opinion that the remittitur and additur statutes were enacted for the purpose of giving the plaintiff, in the case of remittiturs, and the defendant, in the case of additurs, the right to accept, under protest, and appeal, a right that had been denied those respective classes of litigants by case law prior to the enactment of such statutes. The subject statutes make no reference whatever to the right of a defendant, in case of remittitur, to appeal and contest the inadequacy of the remittitur or the right of a plaintiff to appeal and contest the inadequacy of an additur, both of which rights unquestionably exist and are frequently pursued simultaneous with the opposite party’s appeal protesting any re-mittitur or additur. The scope of review must be the same for both sides of the same lawsuit. It would obviously be inappropriate to read into a legislative act, limited to plaintiff’s right to appeal, an intention to prescribe a scope of review governing all parties (and vice versa, in the instance of the additur act).

Finding no express statutory language and no legislative intent or purpose to impose a standard of review upon the appellate courts, it follows that the issue is controlled entirely by case law.

But for the disagreement between the trial judge and the jury over the amount of plaintiff’s recovery, review would be limited to a finding of any material evidence in support of the jury’s verdict. An essential element of the material evidence scope of review of jury cases is the approval of the verdict by the trial judge, as thirteenth juror. In the cases under discussion, the trial judge, as thirteenth juror, has approved the jury verdict in all respects, except for the amount of the award, and all aspects of the case, except that feature, remain subject to the material evidence scope of review. Obviously, remittitur — ad-ditur cases do not fit the mold of non-jury cases or jury cases fully concurred in by the trial judge, and cannot be appropriately reviewed by either the de novo or the material evidence standard. It is a unique situation that calls for its own scope of review.

The Courts are in agreement upon one guideline relevant to the standard of review under discussion, if no other. In Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38 (1928), this Court said:

“The amount of the verdict is primarily for the jury to determine, and next to the jury the most competent person to pass upon the matter is the judge who presided at the trial and heard the evidence.” 157 Tenn. at 176, 7 S.W.2d at 39.

That observation has been approved in many cases. E. g., Monday v. Millsaps, supra; Stark v. Yost, supra ; Templeton v. Quarles, supra; and Wilson v. Cook Mfg. Co., supra.

We agree with the following statement in Stark v. Yost, supra :

“It has been said so many times in cases wherein the question of the exces-siveness of the verdict is at issue, that the Trial Court should not interfere with the jury verdict on the ground of excessiveness unless the amount of the verdict is beyond the range of reasonableness.” 334 S.W.2d at 958.

We think it is the exclusive province of the jury to assess damages within the range of reasonableness established by the credible proof; that trial judges are without authority to reduce or increase jury verdicts that are between the upper and lower limits of that range. If a trial judge sitting as thirteenth juror cannot approve a jury verdict that is within the range of reasonableness established by the credible proof, he has the authority to order a new trial, but not to increase or reduce the verdict.

Thus, the appellate review of a trial judge’s actions in making use of remit-titur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof. The upper and lower limits of that range must be determined by a reasoned examination of the credible proof of damages and all factors that have bearing upon the amount of recovery. The use of the “conscience of the court”, sanctioned in some of the cases, is not appropriate, in our opinion. The credibility of expert and lay witnesses and the probative value to be given their respective testimony is, of course, involved in determining the range of reasonableness. Appellate review should involve a determination of whether the jury’s verdict or the trial judge’s use of a remittitur or additur has established or rejected the credibility of any witness. The amounts awarded by the jury and the trial judge may also indicate the probative value given to the testimony of the witnesses. Throughout the review, the jury’s determinations should be given primary weight and the trial judge's secondary weight.

If it is determined that the jury’s verdict is within the range of reasonableness or that both the jury’s and the trial judge’s awards are within that range, the appellate court must restore the jury verdict. If only the trial judge’s award is within the range, it must be affirmed. If neither are within the range of reasonableness, the Court of Appeals should make appropriate use of remittitur and render judgment within the range of reasonableness based upon the credible proof of damages.

[M] In this case, three witnesses testified on the issue of damages, the landowner, his expert and the State’s expert. The landowner testified that the value of the land taken and incidental damages totaled $24,500; his expert’s total was $18,500; and the State’s expert, $5,600. The jury verdict was $11,000, to which the trial judge added $6,000 and rendered judgment for $17,000. No witness was discredited, but obviously the jury and the trial judge disagreed on the probative value to be given their testimony. The jury verdict was $5,400 more than the State’s expert and $7,500 less than the owner’s expert, indicating that more probative value was given to the State’s expert than to the owner and his expert. The trial judge awarded only $1,500 less than the expert testifying for the owner. Of course, both awards are within the zone of reasonableness. It is apparent that the trial judge simply placed himself in the jury box and selected his own figure. That is not, in our opinion, the proper function of the trial judge in suggesting additurs.

Applying what we have said in this opinion to the credible proof of damages would require restoration of the jury verdict. The trial judge’s disagreement with the jury was substantial and if the guidelines in this opinion had been available to him, it is likely that he would have awarded a new trial as thirteenth juror. In these circumstances we think it proper that this case be remanded for a new trial. Costs will be divided equally between the parties.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

      . Clinchfield R. R. v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966); Wilson v. Cook Mfg. Co., 56 Tenn.App. 129, 405 S.W.2d 584 (1966); Dixie Feed & Seed Co. v. Byrd, 52 Tenn.App. 619, 376 S.W.2d 745 (1963); Templeton v. Quarles, 52 Tenn.App. 419, 374 S.W.2d 654 (1963); Stark v. Yost, 47 Tenn.App. 28, 334 S.W.2d 954 (1959); Graham v. Smith, 46 Tenn.App. 549, 330 S.W.2d 573 (1959); Spence v. Carne, 40 Tenn.App. 580, 292 S.W.2d 438 (1954); Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953); Olson v. Sharpe, 36 Tenn.App. 557, 259 S.W.2d 867 (1953); International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948); Yellow Bus Line v. Brenner, 31 Tenn.App. 209, 213 S.W.2d 626 (1948); Atlantic Coast Line R. R. v. Meeks, 30 Tenn.App. 520, 208 S.W.2d 355 (1947); Town of Clinton v. Davis, 27 Tenn.App. 29, 177 S.W.2d 848 (1943); City of Lawrenceburg v. Dyer, 11 Tenn.App. 493 (1929).

      . See Tennessee Coal & R. R. v. Roddy, 85 Tenn. 400, 5 S.W. 286 (1887).


author: HENRY, Chief Justice.

text:
    David Garland HOWELL, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    July 31, 1978.

      Gus D. Hatfield, Jr., Hatfield, McColpin, Morgan, Nielsen & Van Cleave, Chattanooga, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Nashville, Gary Gerbitz, Dist. Atty. Gen., Stanley Lan-zo, Asst. Dist. Atty. Gen., Chattanooga, for respondent.
   OPINION

HENRY, Chief Justice.

We granted certiorari in this criminal action arising under the Post-Conviction Procedure Act (§ 40-1801, et seq., T.C.A.) to deal with the troublesome and recurring problem of the proper method of computing parole eligibility in cases wherein consecutive determinate or life sentences are imposed.

I.

Petitioner pled guilty on February 20, 1974, to two charges of first degree murder. In this petition he does not deny guilt but insists that he agreed to plead guilty and take consecutive life sentences because his attorney and the trial judge advised him that he would be eligible for parole earlier under two consecutive life sentences than under the two consecutive thirty-five year sentences upon which he was insisting.

The Court of Criminal Appeals found as a fact that “his lawyers apparently told him that his parole eligibility date would come sooner on consecutive life sentences than on the thirty or thirty-five year consecutive sentences which he hoped for; and that the trial judge advised him according to T.C.A. § 40-3613 as it existed prior to amendment in April 1973 . that life sentences would be treated the same as twenty-five year sentences for purposes of service.” Thereafter, the Court of Criminal Appeals held:

Unquestionably Howell agreed to the life sentences under mistaken advice as to their true effect.

We accept these findings made by the Court of Criminal Appeals; however, we cannot accept that court’s conclusion that “the mistake really makes no difference in terms of parole eligibility” and that in either case he is “eligible for parole after 30 full calendar years.” This conclusion not only overlooks significant aspects of consecutive sentencing but sub silentio is premised upon a treatment of two or more consecutive sentences as being a single sentence.

II.

The Court of Criminal Appeals, in arriving at a total service of 30 years, in effect, held that the two consecutive sentences of thirty or thirty-five years should be combined and eligibility computed on the basis of a single sentence of sixty to seventy years, subject to the maximum limitation of thirty full calendar years, as set forth in § 40-3613, T.C.A. The facts show that the alternative sentence was either to be 30 or 35 years. For sake of clarity we will assume a 35 year figure. Graphically, this is the resulting situation, according to the Court of Criminal Appeals and the state:

30 years IN PENITENTIARY

40 years ON PAROLE

This, according to the Court of Criminal Appeals, is the same as two consecutive life sentences because of the same limitation of thirty years.

We reject this reasoning. It assumes a single sentence of 70 years and a single life sentence. If this were the situation, we would agree with the Court of Criminal Appeals; however, we are not dealing with single sentences but with two consecutive sentences.

§ 40-3613, T.C.A., reads in pertinent part: [A]ny person who shall have been convicted and sentenced to a term of imprisonment in the state penitentiary for a period or term of sixty-five (65) years or more, or life, may become eligible for parole provided such person shall have been confined or served a term in the state penitentiary of not less than thirty (30) full calendar years . . . . (Emphasis supplied.)

It is self-evident that this statute does not contemplate consecutive sentences. It originated as Sec. 3, of Chapter 8, Public Acts of 1913 (the indeterminate sentence law) and has no application to determinate sentences, with the exception of life sentences — but not to multiple life sentences.

The parole eligibility date on a determinate sentence is set by § 40-3612 at “one half (V2) of the sentence imposed by the court.” (Emphasis supplied). This section originated as a part of Chapter 276 of the Acts of 1937; it contains no provision for aggregating sentences and also is singular in concept.

The Court of Criminal Appeals cites no authority for the concept of cumulating the sentences. The State’s brief, however, supporting the position taken by the Court of Criminal Appeals, relies upon § 40-2710, T.C.A., for the proposition that if a person is sentenced for two or more separate offenses, the total of the sentences should be treated as one continuous term of imprisonment. This insistence completely ignores the fact that this Code section was lifted verbatim from Section 1, Chapter 8, Public Acts of 1913, which created Tennessee’s Indeterminate Sentence Law, and has no application to determinate sentences. The indeterminate sentence law does not apply to murder in the first degree. Franks v. State, 187 Tenn. 174, 213 S.W.2d 105 (1948).

We reject the approach taken by the Court of Criminal Appeals and the position advocated by the state.

III.

The petitioner takes the position that two consecutive thirty-five year sentences are significantly more advantageous in terms of parole eligibility to two consecutive life sentences.

His reasoning is ingenious and superficially plausible. He argues that when one is sentenced to two consecutive sentences, the second does not commence until the first has expired. Thus, he says that a 35 year sentence, under § 40-3612, is “built” in seventeen and one-half years, assuming all other conditions of parole eligibility have been met, and that at that time he is entitled to be released for the second half, or seventeen and one-half years. He would not begin to serve his second 35 year sentence until his 17½ years of parole on his first 35 year sentence had expired. Graphically, this is his insistence:

He relies very heavily upon Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891 (1960). Dicta in Doyle is supportive of petitioner’s petition; however, all Doyle actually holds is that Doyle’s right to a parole rested in the discretion of the Board of Pardons and Paroles.

Doyle was sentenced to life imprisonment for rape and to five to twenty-five years for robbery, with the robbery sentence to run consecutively with the rape sentence. It was Doyle’s insistence that the rape sentence was a nullity because the life sentence never expires.

Justice Burnett, writing for the Court, approached the matter with characteristic simplicity:

Parole, under our statutes, is nothing more than a conditional suspension of sentence. See State ex rel. Neilson v. Harwood, supra [183 Tenn. 567, 194 S.W.2d 448], for a full discussion of the question. The sentence of the man does not expire because of the parole, nor during the pendency of the parole. He during this time is still in the custody of the penal authorities of the State and subject to the provisions upon which he has been paroled. State ex rel. Nicholson v. Bush, 136 Tenn. 478, 190 S.W. 453. During this period of parole the prisoner, or petitioner as in this case, cannot be re-arrested under a capias, or whatnot, and placed in the penitentiary, jail or workhouse under a conviction had prior to the conviction upon which he is serving as a parolee from the State penitentiary. See State ex rel. Nicholson v. Bush, supra. So it is, that so long as the petitioner, or prisoner, is serving as a parolee under his term of confinement of life he remains on parole or under confinement of this sentence. The sentence for robbery, of course, is held in abeyance until the life sentence is served and it does not become effective for any purpose until the life sentence expires, or the prisoner has had a complete pardon under this sentence. Of course, under the life sentence, the prisoner, or petitioner here, cannot be made to serve the term for robbery because the life sentence continues as long as there is life, or a pardon has been granted. (Emphasis supplied.) 207 Tenn. at 403-404, 340 S.W.2d at 893.

We do not here quarrel with these generalized statements of the law; however, we note that they are, in part, inconsistent with prevailing practices. Perhaps, they would permit the conclusion reached by the petitioner but we do not believe they mandate a result that would erode, if not destroy, the whole concept of consecutive sentencing. The petitioner’s position, as well as that taken by the Court of Criminal Appeals and the respondent, would wholly and utterly nullify consecutive life sentences and would discount and dequantitate consecutive sentences for terms of years.

IV.

The State, in brief, correctly cites the philosophy behind the imposition of consecutive sentences as being “confinement for such term [as] is necessary in order to protect the public from criminal conduct by the defendant,” and then goes on to say that “[o]bviously, this philosophy would have no practical basis if consecutive sentences were given the effect petitioner urges.”

In reaching this conclusion, the State, as did the Court of Criminal Appeals, relies upon the cumulative approach, with a resulting maximum of a total of thirty (30) years. Quite aside from the fact that this maximum has no application in cases involving determinate consecutive sentences, by parity of reasoning the same maximum, if applicable, would apply to multiple consecutive life sentences. The result would be that all murders beyond the first would be “on the house” and that society could protect itself only to the extent of the first murder.

We have no statutory limitation on the number of years a convicted criminal may be required to serve under consecutive determinate sentences.

We reject the conclusion reached by the Court of Criminal Appeals, the position advanced by the State, and the approach made by the petitioner. In so doing we neither follow nor decline to follow any particular statutory scheme, since none is controlling and none is particularly relevant.

We think the concept of consecutive sentencing, judiciously administered by trial judges and reviewed on a fair and meaningful basis by the appellate courts, is in the public interest. It is an established part of our system of criminal jurisprudence and has become a part of the public policy of our state, both by statutory and decisional law.

The theory of consecutive or cumulative sentencing is that where a criminal defendant has been convicted of two or more offenses, his malefactions may merit separate and cumulative penalties. Bundy v. State, 176 Tenn. 198, 140 S.W.2d 154 (1940).

When separate convictions are obtained and separate sentences are decreed, they “run concurrently or cumulatively in the discretion of the trial judge” (§ 40-2711) and, in the absence of a specific order, they run concurrently. Headrick v. State, 519 S.W.2d 403 (Tenn.Cr.App.1974). See also Tenn.R.Crim.P., § 32(a) and (b). Thus the statutory and decisional law recognize that consecutive sentences are awardable both to protect the public and punish the offender by requiring that two or more sentences be served successively.

In our recent case of Gray v. State, 538 5.W.2d 391 (Tenn.1976), we dealt with the matter of consecutive sentences and established guidelines for their imposition. Among other things we said:

Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.
The object is to use consecutive sentencing, where appropriate, to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle. 538 S.W.2d at 393.

V.

Our solution to this troublesome problem, wherein guidance is lacking and precedent is not conclusive, derives its validity from the fact that we deal with separate and distinct determinate sentences which the trial judge has specifically ordered to be served consecutively. Our solution is further founded in the established legal proposition that a parole does not terminate the sentence nor does it terminate custody. Parole normally terminates confinement, but the parolee continues in constructive custody until the expiration of the full term of his sentence.

It is our duty to harmonize these considerations with the purpose of consecutive sentences and to arrive at a solution that simultaneously respects the interest of the state and protects the rights of the defendant. In doing so we reiterate that the fact of separate convictions and separate sentences is a controlling consideration.

We hold that two consecutive determinate sentences of thirty-five years each are served thusly:

a. The first 35 year sentence is served in 17½ full years, at the end of which the prisoner is eligible for regular parole. (§ 40-3612.)
b. When parole is granted or the first sentence is otherwise completed, the second sentence is commenced without an intervening period of release.
c. During the ensuing 17½ years, the prisoner simultaneously serves the first portion of his second sentence and, as a resident parolee, or cell-parolee, completes the remaining portion of his first sentence.
d. At the end of the second 17½ year period he is eligible for parole and release from physical custody. (But see footnote 6.)

Graphically, we reach these results:

The result, as applied to this petitioner, is that consecutive 35 year sentences are served in 35 full years of actual confinement (subject to the conditions listed in footnote 6).

The same process of reasoning leads to the conclusion that consecutive life sentences entail 60 full years of actual confinement. Again, we note that the 30-year limitation contained in § 40-3613, T.C.A., does not apply to consecutive determinate sentences. Graphically, this is the solution:

Any other conclusion would completely nullify consecutive life sentences. Reading § 40-3613 as insisted by the state would mean that a prisoner who committed one murder with resulting life sentence would serve 30 years. Precisely the same time would be served by a prisoner who had committed ten murders with ten consecutive life sentences. Two thirty-five year sentences would be served in thirty years; ten thirty-five year consecutive sentences would be served in the same 30 years. These results border on the ludicrous.

The result is that petitioner, who insisted on two thirty-five year sentences, with an assumed parole eligibility at the end of 30 or 35 years, winds up with two consecutive life sentences with parole eligibility, as interpreted by this Court, coming only after he has served 60 years.

The thrust of his petition, as indicated by the Court of Criminal Appeals, is “that his constitutional rights were violated because he was misinformed and misled by appointed counsel and the trial court as to the consequences of his pleas of guilty, thereby rendering his pleas involuntary and defense counsel’s representation ineffective.”

Both the trial judge and defense counsel were dealing with what the majority opinion of this Court in Farris v. State, 535 S.W.2d 608 (Tenn.1976), classified as a “highly specialized area” of the law, and one in which “few practicing attorneys, otherwise knowledgeable in criminal law, or judges at any level” have a complete understanding. We cannot, and do not, hold, under these circumstances, that counsel was incompetent.

But the fact remains that, as held by the Court of Criminal Appeals, “Howell agreed to the life sentences under mistaken advice as to their true effect.” He is entitled to relief.

We remand this case to the Criminal Court at Chattanooga. That court may (1) vacate the sentence and award a new trial or (2) enter judgment of two consecutive sentences of thirty or thirty-five years each, whichever term is appropriate.

This opinion is prospective only and shall have no effect upon those cases wherein parole eligibility dates have already been established or to cases already final in the trial court.

Reversed and remanded.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . Other than the death penalty Tennessee has three types of felony sentences, viz., determinate, indeterminate and life. A determinate sentence is one in which the jury fixes a specific sentence with no minimum or maximum. See §§ 40-2707 and 2708, T.C.A., for a listing. Generally speaking, all other sentences, except life sentences, are indeterminate. This opinion has no bearing on indeterminate sentences and relates solely to parole eligibility.

      . Chapter 370, Public Acts of 1973, effective May 6, 1973, changed the maximum period of service, for parole eligibility purposes, of a life sentence from 25 to 30 years.

      .The Court of Criminal Appeals specifically held that the “parole eligibility date is exactly the same” under the consecutive 30-35 year sentences and two consecutive life sentences. We disagree.

       Actually a prisoner in this situation is not on parole for the full 40 years because good conduct credits reduce the parole time and the prisoner is discharged or builds his sentence in 36 years and 1 month on a 70 year sentence. See § 40-3622 and footnote 6, infra. The result is that he is on parole for a total of 6 years and 1 month.

      . There is no diminution for good conduct for parole purposes on a determinate sentence. McFadden v. State, 532 S.W.2d 944 (Tenn.Cr.App.1975).

      . Sec. 40-2710 provides: “If a person be sentenced for two (2) or more such separate offenses, sentence shall be pronounced for each offense, and imprisonment thereunder may equal, but shall not exceed, the total of the maximum terms provided by law for such offenses, which total shall, for the purpose of §§ 40-2707 — 40-2710, be construed as one (1) continuous term of imprisonment.”

      . Other factors enter into the picture. The prisoner is eligible for probationary parole in I6V2 years (§ 40-3612), for mandatory parole in 18 years and 1 month (§ 40-3614), and has fully satisfied or “built” his sentence in 18 years and 7 months (assuming the accumulation of all good and honor time). It is important to keep in mind that good and honor time affects the flat release date but does not count toward parole eligibility. McFadden v. State, 532 S.W.2d 944 (Tenn.Cr.App.1975).

      . See footnote 6.

      . See In re Fitzpatrick, 9 N.J.Super. 511, 75 A.2d 636 (Mercer County Ct.1950), affirmed 14 N.J.Super. 213, 82 A.2d 8 (App.Div.1951).

      .Since parole release is such an important consideration, especially in bargained pleas of guilty the question of computation of parole needs to be stated simply where consecutive determinate sentences are involved. To compute a prisoner’s “real” parole date, figure the regular parole dates on each sentence and add the resulting sentences together. Thus consecutive sentences of 20 and 30 years result in regular parole dates of 10 and 15 years respectively. The total of 25 years equals his regular parole date under paragraph two of § 40-3612. The fourth paragraph of § 40-3612 deals with probationary parole where the “prisoner has been accorded a bona fide offer of employment.” We hold that this provision contemplates an actual parole from behind prison walls as opposed to the “in-house” parole discussed in sub-paragraph c of this section. Therefore the 1 year probationary parole is deducted from the aggregate regular parole dates, and not from each regular parole date. Thus, in the above example the aggregate parole date is 25 years minus 1 year probationary parole equalling 24 years, which is the earliest time the prisoner could expect a “real” parole. Another example would be sentences of 15, 20 and 30 years, with regular parole dates of 7⅛, 10 and 15 years respectively, the sum being ?2½ years less 1 year probationary parole, which equals 31‘A years for an expectation of a real parole. Mandatory parole under § 40-3614 also contemplates a “real” parole date and the above rules are applicable.

      . Parole eligibility on a life sentence can only occur in 30 years. Good and honor time do not reduce it. It is extinguished solely by the death of the prisoner or pardon.

      . See footnote 6.


text:
    PRESS, INC. d/b/a the Johnson City Press Chronicle, et al., Petitioners, v. Sherry L. VERRAN, Respondent.
    Supreme Court of Tennessee.
    July 31, 1978.

      C. T. Herndon, III, Herndon, Coleman, Brading & McKee, J. Frank Bryant, Johnson City, for petitioners.
    Richard W. Pectol, Johnson City, for respondent.
   OPINION

HENRY, Chief Justice.

We granted certiorari in this action of libel to consider the extent of a publisher’s constitutional privilege against liability for defamation. We focus on the specific issue of whether plaintiff is a “public official” or a “public figure” under the law of libel as it has developed under recent decisions of the Supreme Court of the United States.

The trial judge sustained the motion of petitioner for summary judgment, holding that respondent, a junior social worker in the Washington County office of the State Department of Human Services, was a public official and a public figure within the meaning of the libel laws and that there was no proof of actual malice, nor any “indication of any reckless disregard for the truth or falsity of the matters printed.” The Court of Appeals reversed, holding that plaintiff was neither a public official nor a public figure and only a negligence test applied against the publisher.

We granted the writ in order to analyze the status of the plaintiff. We conclude that the Court of Appeals reached an erroneous conclusion and, accordingly, reverse.

I.

The defendants to this action are Press, Inc., the publisher of the Johnson City Press Chronicle, a daily newspaper, one of its stockholders (presumably the chief executive or manager), and two of its bureau chiefs.

This action grew out of a series of ten articles appearing in the Chronicle, at periodic intervals from July 2, 1975, through September 3, 1975, all relating to the actions and activities of plaintiff in connection with the performance of her official duties. None related to her conduct as a private citizen.

On April 1,1975, plaintiff received a telephone call from a school principal suggesting that some of the ten children of Elmer and Mary Tolley were the victims of child abuse. Pursuant to § 37-1206, T.C.A., plaintiff conducted an investigation during the course of which she visited the Tolley residence in a remote rural section, interviewed Mrs. Tolley, observed the children and arranged for them to be examined by a medical doctor.

The medical examination indicated signs of abuse and plaintiff recommended to her supervisor that the children be placed in foster homes pursuant to § 37-1201, et seq., T.C.A. After approval by her supervisor and the legal staff of the Department, she completed the proper documents for submission to the Juvenile Judge, who ordered the children placed in foster homes. Plaintiff accompanied law enforcement officials to the Tolley residence and aided in the removal of the children. Soon thereafter, she met in her office with the Tolleys, who came in an effort to determine how they could get their children back.

According to the newspaper publications, among the requirements for the return of the children was that Mrs. Tolley submit to a bilateral tubal ligation. This condition was reported by the Tolleys to the Chronicle, which, after investigating the matter, ran the series of articles featuring the charge that Mrs. Tolley was “coerced into submitting to sterilization” in order to procure the return of her children.

When the Chronicle declined to make a retraction, this suit was filed.

It should be reiterated that while other issues are framed by the pleadings the only question presented to us for determination is whether plaintiff is a “public official” or “public figure.” Nothing in this opinion is to be construed as holding that the complaint states a cause of action, or as resolving any other issue.

II.

An analysis of the issues involved in this controversy must start with the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), wherein the Supreme Court, considering the ease “against the background of a profound national commitment to the principle that debate on public issues should be- uninhibited, robust and wide-open,” fashioned a new rule of “constitutional privilege”:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” —that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (Emphasis supplied). 376 U.S. at 279-280, 84 S.Ct. at 726, 11 L.Ed.2d at 706.

The Court bottoms this rule upon the First Amendment guarantee of freedom of speech and of the press, made applicable to the states by the Fourteenth Amendment. While the Court applied the new rule to defamatory publications involving the “official conduct” of a “public official,” it did not define the term “public official” nor determine how far down into the lower ranks of government employees the “public official” designation would extend, nor did it determine the boundaries of the “official conduct” concept.

Two years later, however, in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Court undertook a definition of the term “public official”:

[T]he “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. 383 U.S. at 85, 86 S.Ct. at 676, 15 L.Ed.2d at 605.

In 1967, the case of Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, came before the Supreme Court. When the various opinions by the Court are analyzed, it becomes evident that the constitutional privilege was extended to “public figures” along with “public officials.” The plurality opinion suggests that á public figure is one who

may have attained that status by position alone . . . [or] by his purposeful activity amounting to a thrusting of his personality into the “vortex” of an important public controversy, but commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able “to expose through discussion the falsehood and fallacies” of the defamatory statements. 388 U.S. at 155, 87 S.Ct. at 1991, 18 L.Ed.2d at 1111.

Here, the volition of the injured was a critical consideration.

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), “[t]he Court was sadly fractionated,” and could not agree on an opinion. Justice Brennan wrote for a plurality of three. In effect the plurality held that the status of the individual was not the controlling consideration; instead the test was whether there was involved an issue of “public or general interest.” 403 U.S. at 44, 91 S.Ct. at 1820, 29 L.Ed.2d at 312. The effect of this holding was to extend the New York Times “knowledge — or—reckless disregard” rule to any issue of public interest. The Court said:

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not “voluntarily” choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety. (Emphasis supplied.) 403 U.S. at 43, 91 S.Ct. at 1819, 29 L.Ed.2d at 311.

Thus, the Court abandoned the status of the individual test. The fragile foundation of Rosenbloom endured for only three years.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court retreated from the plurality position of Rosenbloom and declined to extend the New York Times privilege to defamation of private individuals, even though a matter of public interest was involved. The Court’s rationale is evident from this quotation from the opinion:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. 418 U.S. at 344-345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.

After pointing out that the media may assume that public officials and public figures have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood,” the Court further amplified the theme of the protection of private individuals thusly:

No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an “influential role in ordering society.” (Citation omitted). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. 418 U.S. at 345, 94 S.Ct. at 3010, 41 L.Ed.2d at 808.

The Court declared that “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” 418 U.S. at 343, 94 S.Ct. at 3008-3009, 41 L.Ed.2d at 807. Following this rationale, the Court specifically authorized the states to “define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood” but only “so long as they do not impose liability without fault.” 418 U.S. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. Our recent case of Memphis Publishing Company v. Nichols, Tenn., 569 S.W.2d 412 (Tenn.1978), quotes and follows this authorization. Memphis Publishing Company establishes standards for suits by private individuals and has no application to those involving public officers or public figures, acting in their official capacities.

With respect to the term “public figure”, the Court in Gertz, gives substantial guidance:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in. all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. (Emphasis supplied.)
Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation. (Emphasis supplied.) 418 U.S. at 351-352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812.

The Court, however, provided no significant guidance on the meaning of “public controversy.”

The major effect of Gertz was to provide greater protection for the reputational interests of private individuals.

This trend was followed and the meaning of the term “public figure” was further amplified in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), and, in so doing, the Court instructed us as to what is not a public controversy.

There the underlying controversy was a divorce action between Russell Firestone, “the scion of one of America’s wealthier industrial families,” and his wife, Mary Alice Firestone, a case referred to by the Florida Supreme Court as a cause célébre. An ambiguous divorce decree was entered and Time Magazine reported that the divorce was awarded to the husband on the basis of the wife’s extreme cruelty and adultery.

Time contended before the Supreme Court that the divorce action was a “public controversy” and that Mrs. Firestone should be treated as a “public figure.” Responding to this, the Court said:

[Petitioner seeks to equate “public controversy” with all controversies of interest to the public. Were we to accept this reasoning, we would reinstate the doctrine advanced by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which concluded that the New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest. In Gertz, however, the Court repudiated this position, stating that “extension of the New York Times best proposed by the Rosen-bloom plurality would abridge [a] legitimate state interest to a degree that we find unacceptable.” (Citation omitted.) 424 U.S. at 454, 96 S.Ct. at 965, 47 L.Ed.2d at 163.

The Court held that Mrs. Firestone (a) “did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society”; (b) “did not thrust herself to the forefront of any particular public controversy”; and (c) “assumed no ‘special prominence’ in the resolution of public questions.” Therefore, the Court said she “was not a ‘public figure’ for the purpose of determining the constitutional protection afforded petitioner’s report of the factual and legal basis for her divorce.” Further, the Court said that a divorce proceeding “is not the sort of ‘public controversy’ referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public.” 424 U.S. at 453-455, 96 S.Ct. 965-966, 47 L.Ed.2d at 162-163.

Clearly, in Firestone the Court bases its action on the nature and extent of the controversy as opposed to the status of the injured party. Firestone makes it clear that an injured party will not be classified as a “public figure” solely because he or she is deemed newsworthy by the media.

As will be seen from the foregoing analysis, the Supreme Court of the United States has constitutionalized the law of libel and, in material particulars, has preempted state statutory and decisional law in cases and controversies involving the communications media.

There may be no liability without fault, but the more highly placed the individual, the greater is the required degree of fault. The escalating range is from the private individual engaged in private pursuits, whose cause of action is to be tested by conventional negligence standards, up to public officials engaged in public duties, where the “knowledge — or—reckless disregard” rule indicative of actual malice is the constitutional criterion.

Under the New York Times — Rosen-blatt-Butts line of cases a public official or a public figure may not recover in a defamation action from a media defendant in the absence of proof of “actual malice— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The New York Times rule is restricted to “official conduct”; however, subsequent cases indicate that involvement in public issues and controversies of interest to the public may be sufficient to trigger the constitutional privilege.

While the term “public official” has not been defined with precision, it causes us no particular concern. Generally the title and nature of the office will provide the answer. However, we find nothing magical, mysterious or mystical in the terminology. The occupant of any position in any branch of government who exercises any public function is subject to the New York Times rule as to all conduct in his official capacity or as to any conduct that might adversely affect his fitness for public office, if he has or “appear[s] to the public to have, substantial responsibilities for or control over the conduct of governmental affairs.” Rosenblatt, supra.

This does not necessarily apply only to high public position. Any position of employment that carries with it duties and responsibilities affecting the lives, liberty, money or property of a citizen or that may enhance or disrupt his enjoyment of life, his peace and tranquility, or that of his family, is a public office within the meaning of the constitutional privilege.

The term “public figure” has been defined variously by the courts as reference to the above cases will indicate. Included within this classification must be those who have thrust themselves into the vortex of important public controversies; those who achieve such pervasive fame or notoriety that they become public figures for all purposes, and in all contexts; those who voluntarily inject themselves, or are drawn into public controversies, and become public figures for a limited range of issues; and those who assume special prominence in the resolution of public questions. There, no doubt, are other involvements that would invoke the “public figures” designation.

Finally, we think that a critical concern must be the nature and extent of the individual’s participation in the particular controversy. See Gertz, supra. The status of the individual and the nature and extent of his involvement must be considered in those cases wherein the defamed party is involved in an activity affecting the public, but may not precisely fit into the pattern of a public official or public figure. It is a fact of life that one may be a public official today, a public figure tomorrow and a nonentity the next. His status must, in the last analysis, be dependent not only upon title or some convenient nomenclature, but also upon the character, nature, purpose, intent and extent of his participation in the particular controversy.

III.

While the law of libel has now been federalized, or at least constitutionalized in substantial part under the federal constitution, we consider the provisions of Tennessee’s constitution to be both relevant and significant. Section 19, Article I reads, in pertinent part:

That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.

To the extent of this controversy this is a substantially stronger provision than that contained in the First Amendment to the Federal Constitution (“Congress shall make no law . . . abridging the freedom . of the press”) in that it is clear and certain, leaving nothing to conjecture and requiring no interpretation, construction or clarification.

This mandate of Tennessee’s Constitution requires that any infringement upon the “free communication of thoughts” and any stumbling block to the complete freedom of the press “to examine [and publish] the proceedings ... of any branch or officer of the government” is regarded as constitutionally suspect, and at the very threshold there is a presumption against the validity of any such impediment.

But it does not constitutionalize false and malicious defamations, and publishers are answerable for abuse. We equate “abuse of that liberty,” as used in our constitution, with the phrase “actual malice” as used in New York Times.

IV.

We are impressed with Standards 580A and 580B, Restatement (Second) of Torts (1977). They read as follows:

§ 580A. Defamation of Public Official or Public Figure. One who publishes a false and defamatory communication concerning a public official or public figure in regard to his conduct, fitness or role in that capacity is subject to liability, if, but only if, he
(a) knows that the statement is false and that it defames the other person, or
(b) acts in reckless disregard of these matters.
§ 580B. Defamation of Private Person. One who publishes a false and defamatory communication concerning a private person, or concerning a public official or • public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he
(a) knows that the statement is false and that it defames the other,
(b) acts in reckless disregard of these matters, or
(c) acts negligently in failing to ascertain them.

We believe that these standards meet the criteria of our federal and state constitutions and we adopt them as the law of this jurisdiction.

In adopting these standards, we look to the “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” We are guided by our belief that the news media have not only a right but a duty to make searching inquiry into all phases of official conduct and to realistically evaluate and assess the performance of duty by public officials.

Only under the most compelling circumstances should the courts place obstacles in the way of the news media, or muzzle or deter their investigative efforts and reporting, even though the end result may be distasteful, despicable and shorn of all sense of fairness. The right of the news media to criticize official conduct is limited solely to their answerability for actual malice, which means that the publication was made with knowledge of its falsity or with reckless disregard for the truth.

Any other standard would have a chilling effect upon one of the most cherished of all the freedoms specified in our bill of rights.

From the days of the lonely pamphleteer operating clandestinely in Colonial America and crying out against the usurpations of the Crown, we have elected to reap the benefits and bear the burdens of a free and courageous press. It may disturb our tranquility; if may vex our peace of mind; it may outrage our sensibilities; it may shock our conscience; and it may even momentarily shake our beliefs in the right of freedom of the press; but so deeply grounded is our national commitment to a free press that we as a nation tolerate its abuses. The quid pro quo is that we profit by the very freedom that sometimes causes us to squirm.

It has been said that the fire siren in the nighttime disturbs our slumbers, but it also keeps us from burning up in our beds. So long as we have a free press to focus on false prophets and to expose chicanery and skullduggery within our government, official misconduct will not go undetected or uncorrected. As Mr. Justice Brandéis observed, “sunlight is the most powerful of all disinfectants.” See Freund, The Supreme Court of the United States 61 (1949). “A responsible press has always been regarded as the handmaiden of effective judicial administration . . . .” Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600, 613 (1966).

V.

In the instant case the trial judge determined that the respondent was a “public figure or official in at least a limited sense.” He based his conclusion upon the following finding of fact:

The evidence available to this Court in considering this motion indicates that in this entire matter, beginning with the telephone call from a school official reporting to plaintiff, as a representative of the Tennessee Department of Human Services, a possible case of child abuse; her going to the home of Mr. and Mrs. Tolley to investigate this allegation pursuant to her duty under our code; her taking the children for examination by a physician; her making her own and the physician’s recommendation to her supervisor that legal action be taken in the Juvenile Court; her accompanying the officers to take the children from the Tolley home pursuant to the court order; her making herself available to the Tol-leys to discuss requirements for return of the children; and in any and all other matters connected with this case, the plaintiff acted in her capacity as a Junior Social Worker employed by a unit of the state government, not in her individual capacity as a private citizen.

We concur in his findings and conclusions. It is true that as a public official she ranks rather low in the hierarchy of state government; however, we do not perceive that the “pecking order” is pertinent. To the Tolleys she had sufficient power to remove or cause their children to be taken from their custody and placed in a foster home, and to lay down conditions fraught with financial, physical and psychological problems. While this action may have been proper in all respects, its employment was unquestionably heady.

To the Tolleys she was the very epitome of government.

VI.

The only issue before us for determination is whether respondent was a public official or public figure. We have made that determination. In the present posture of the lawsuit, we can only reverse the Court of Appeals and affirm so much of the judgment of the trial judge as found respondent to be a public official, within the meaning of the constitutional privilege.

In the interest of the administration of justice, we direct that the trial judge, on remand, address the significant issue raised by the pleadings, (but not by motion for summary judgment and, therefore not at issue in this appeal), i. e., is the publication defamatory or libelous? A negative response to the question concludes the controversy.

Assuming, but by no means suggesting, an affirmative response, the trial court would proceed to try the sole remaining issues of (a) the truth of the publication and (b) if untrue, whether it was made with actual malice as defined in New York Times v. Sullivan, supra.

The judgment of the Court of Appeals is reversed; that of the trial judge affirmed; and the cause is remanded for further proceedings not inconsistent with this opinion.

FONES, COOPER and HARBISON, JJ., and OLIVER, Special Justice, concur.

      . The status of the libelled party is the only issue raised by the assignments of error.

      . Our recent case of Memphis Publishing Co. v. Nichols, Tenn., 569 S.W.2d 412 (1978), disposes of the question of the correct standard. This issue is not before the Court in this case.

      . Gertz v. Robert Welch, Inc., infra, 418 U.S. at 354, 94 S.Ct. at 3014, 41 L.Ed.2d at 813.

      . Mrs. Firestone was “prominent among the ‘400’ of Palm Beach society, and an active ' [member] of the sporting set, . whose activities predictably attracted the attention of a sizable portion of the public.” She subscribed to a clipping service and held news conferences during the course of the 17-month trial. The trial drew national coverage and “elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times.” 424 U.S. at 485, 96 S.Ct. at 980, 47 L.Ed.2d at 180-181.