Curtis Publishing Company v. Butts

Decision Date01 October 1965
Docket NumberNo. 21491.,21491.
Citation351 F.2d 702
PartiesCURTIS PUBLISHING COMPANY, Appellant, v. Wallace BUTTS, Appellee. Wallace BUTTS, Appellant, v. CURTIS PUBLISHING COMPANY, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

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Welborn B. Cody, Harold E. Abrams, Atlanta, Ga., Philip H. Strubing, Philadelphia, Pa., Emmet J. Bondurant, Thomas E. Joiner, Atlanta, Ga., Kilpatrick, Cody, Rogers, McClatchy & Regenstein, Atlanta, Ga., Pepper, Hamilton & Scheetz, Philadelphia, Pa., of counsel, for appellant.

William H. Schroder, Allen E. Lockerman, Milton A. Carlton, Jr., Robert L. Pennington, Gerald P. Thurmond, T. M. Smith, Jr., Atlanta, Ga., Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., of counsel, for appellant on Cross Appeal.

Before RIVES and BROWN, Circuit Judges, and SPEARS, District Judge.

SPEARS, District Judge:

This is a libel suit. Curtis Publishing Company1 published an article in the March 23, 1963 issue of the Saturday Evening Post2 entitled "The Story of a College Football Fix", characterized by the Post in the sub-title as "A Shocking Report of How Wally Butts and `Bear' Bryant Rigged a Game Last Fall."

On March 25, 1963, Wally Butts,3 former Athletic Director of the University of Georgia, instituted this action against Curtis. In August, 1963, the case was heard before a jury, which returned a verdict against Curtis for $60,000 general and $3,000,000 punitive damages. Conditioned upon the failure of Butts to remit that portion of the award for punitive damages in excess of $400,000, the trial court granted Curtis' motion for new trial. At the same time, Curtis' motion for judgment notwithstanding the verdict was denied. On January 22, 1964, after Butts had filed a remittitur, Curtis' motion for new trial was denied, and judgment for Butts in the amount of $460,000 was entered. Thereafter, Curtis filed motions for new trial under Rule 60(b), F.R.Civ.P., which were denied on April 7, 1964. This appeal is taken from the judgment of January 22, 1964, and from the trial court's denial of Curtis' motions for judgment notwithstanding the verdict and for new trial. We affirm.

Curtis publishes various magazines including the Post. Prior to the publication of the story in question, the editor-in-chief, undoubtedly hoping to attract more readers, had decided to "change the image" of the magazine by making it an "exposé" type, and embarking upon a policy of "sophisticated muckraking", in order "to provoke people" and "make them mad".4

The article5 involved was based upon a claim by one George Burnett that on September 13, 1962 he had accidentally overheard, and made notes of, a long-distance telephone conversation between Butts and "Bear" Bryant, football coach at the University of Alabama, in which Butts divulged certain information about football plays the University of Georgia would use in its opening game against Alabama. Georgia was subsequently defeated 35-0.

About four months after the alleged telephone conversation Burnett contacted various people, including Georgia football coach Johnny Griffith, and then decided to tell his story to the Post. A writer, Frank Graham, Jr., was assigned by the Post to investigate and write the story, and an Atlanta sports editor was retained to advise him. Graham never saw Burnett's notes, as they were at the time in the possession of Georgia school officials; he did not interview a witness known by him to have allegedly discussed the notes with Burnett on the same day the telephone conversation purportedly took place; he never viewed the game films; and neither he nor anyone else on behalf of the Post ever contacted Butts or Bryant. He agreed that both he and Curtis knew publication of the article "would ruin Coach Butts' career".

On March 11, 1963, eleven days before the article was published, Curtis was informed by telegram and letter, both sent by Butts' counsel, of the "absolute falsity of the charges" contained in the proposed story. The record does not disclose that any additional investigation was initiated, and the telegram and letter went unanswered. In addition, a long-distance telephone appeal that the article not be published, made by Butts' daughter prior to publication, was rejected. After the article was published, Curtis refused a demand that it publish a retraction.

The Post took the position from the beginning that the statements made in the article concerning Butts were true, and that because of their nature it had exercised great care by thoroughly checking every significant source of information as to their truthfulness and accuracy, in advance of publication.

Curtis chose not to use as a witness either the author of the article or any of its editors who had made contributions to the article after it had been submitted. Nor did it use the Atlanta sports editor who had assisted in the preparation of the story. As one of its principal witnesses it called upon George Burnett, who was known by Curtis to have been convicted of writing bad checks, and to be on probation at the time he claimed to have listened in on the conversation.

Both Butts and Bryant testified. Each emphatically denied the charges contained in the article and stated that there was never any conversation between them having as its purpose the fixing or rigging of any football game. Several football players, past and present, expressed their opinions to the effect that the outcome of a football game cannot be rigged or fixed without participation by the players themselves, and that there is no way in which two coaches can rig or fix the outcome of a football game without the players' knowledge. Other "experts" stated their opinion that the information contained in the "so-called" Burnett notes would not be of any assistance at all to the University of Alabama in preparing for its game with the University of Georgia. In several instances Butts' witnesses denied direct quotations attributed to them in the article.

In an opinion written by the district judge the facts are stated in some detail,6 and no useful purpose could be served by repeating them here, although portions thereof pertinent to specific issues later discussed may be utilized. It is significant, however, at this point, to say that in view of the verdict it rendered, the jury undoubtedly accepted Butts' version that the story was "willfully, maliciously and falsely" published, as a result of which he has suffered substantial injury to his "peace, happiness and feelings", as well as to his "honor, reputation and integrity". As the trial judge saw it: "The article was clearly defamatory and extremely so. * * * The guilt of the defendant was so clearly established by the evidence in the case so as to have left the jury no choice but to find the defendant liable."7 We wholeheartedly agree with that appraisal.

THE ISSUES PRESENTED

Curtis submits twenty-eight specifications of error which are argued in its brief under ten propositions. The issues involved are: (1) Was the article libelous per se? (2) Does the court's judgment violate Curtis' rights under the First, Fifth and Fourteenth Amendments? (3) Did the arguments of Butts' counsel, not objected to at the trial, require a new trial? (4) Did the court err in excluding certain testimony offered to impeach the credibility of Butts and the witness John Carmichael? (5) Were the extrajudicial statements of George Burnett, and the statements made to him by third person, properly excluded? (6) Did the trial court commit plain error in instructing the jury? (7) Did the trial court err in refusing to charge the jury that it should construe Butts' testimony "most strongly against him"? (8) Did the trial court err in refusing to charge the jury that it should disregard the entire testimony of any witness whom it found to have knowingly and wilfully testified falsely? (9) Does the "newly discovered evidence" offered in Curtis' motion under Rule 60(b), F.R.Civ.P. require a new trial? (10) Is the award of punitive damages so excessive that it cannot be cured by the remittitur?

THE ARTICLE AS LIBELOUS PER SE

The trial judge charged the jury that the article was libelous per se. This was objected to by Curtis on the ground that Butts was not actively engaged in the profession of a football coach at the time of publication, and, that no special damage was shown.8 Curtis took the same position in its motions for directed verdict and for judgment notwithstanding the verdict.

Curtis' contention in this regard cannot be sustained. This is a libel suit as distinguished from a slander suit.9 Under Georgia law, a plaintiff may recover in a libel action where the defamation is apparent from the writing itself, without the necessity of alleging or proving special damages,10 and it is not necessary that he be engaged in the pursuit of his trade, business or profession at the time of publication.11

But even if the law necessitated a showing that Butts was actively engaged in the profession of a football coach at the time of publication, we think this requirement has been satisfied.

The story was purchased by Curtis on February 22, 1963. Butts resigned as Athletic Director effective February 28, 1963. The article was published in the March 23, 1963 issue of the Post. Thus it may be assumed that Butts was at least temporarily out of work on the day of publication, but it hardly follows that he had completely abandoned the coaching business.

Actually, Curtis admitted in its answer that Butts "has enjoyed a national reputation as a successful and respected member of the coaching profession", and that he "has been approached and offered employment as head football coach by several colleges and professional football teams in the country due entirely to his reputation as a successful member and leader in his profession." This admission, in and of itself, would indicate a recognition that Butts...

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