551 F.2d 910 (2nd Cir. 1977), 674, Hotchner v. Castillo-Puche

Docket Nº:674, Docket 76-7479.
Citation:551 F.2d 910
Party Name:A. E. HOTCHNER, Plaintiff-Appellee, v. Jose Luis CASTILLO-PUCHE, Defendant, and Doubleday & Company, Inc., Defendant-Appellant.
Case Date:March 23, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 910

551 F.2d 910 (2nd Cir. 1977)

A. E. HOTCHNER, Plaintiff-Appellee,


Jose Luis CASTILLO-PUCHE, Defendant,


Doubleday & Company, Inc., Defendant-Appellant.

No. 674, Docket 76-7479.

United States Court of Appeals, Second Circuit

March 23, 1977

Argued Feb. 14, 1977.

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Mervin Rosenman, New York City (Simon J. Hauser, New York City, on the brief), for plaintiff-appellee.

Robert M. Callagy, New York City (Satterlee & Stephens, James F. Dwyer and James F. Rittinger, New York City, on the brief), for defendant-appellant.

Henry R. Kaufman, New York City, on the brief, for amicus curiae, Association of American Publishers, Inc.

Before LUMBARD and TIMBERS, Circuit Judges, and WYATT, District Judge. [*]

LUMBARD, Circuit Judge:

Doubleday & Company, Inc. appeals from a judgment of $2 compensatory damages and $125,000 punitive damages for libel and invasion of privacy entered by Judge Brieant on a jury verdict after a one-week trial in April 1976 in the Southern District. The plaintiff is A. E. Hotchner, a successful writer and lecturer who was a friend of Ernest Hemingway's and published a memoir about him, Papa Hemingway, in 1965. The suit involves unfavorable remarks about Hotchner made in Hemingway in Spain, an English translation of personal reminiscences by a Spanish writer Jose Luis Castillo-Puche, which was published by Doubleday in 1974.

The district court determined that for first amendment purposes Hotchner in his relationship with Hemingway was a public figure. 1 Liability must therefore rest on clear and convincing proof that the defendant published with knowledge of falsity or with reckless disregard for truth. Because the evidence on this issue is inadequate to support the jury's verdict, we reverse with instructions that plaintiff's amended complaint be dismissed.

Castillo-Puche's Hemingway: Entre la Vida y la Muerte was published by Ediciones Destino in Spain in 1967. The book collects in 388 pages the author's impressions of Hemingway which were garnered in Spain and Cuba in the late 1950's. It makes roughly twenty references to Hotchner, who was a travelling companion of Hemingway's in Spain.

At trial, a professor of Spanish who had written her Ph.D. thesis on Castillo-Puche testified that he had written a number of novels, earning several literary awards and establishing himself as "an important novelist." She also described Ediciones Destino as a "very prestigious" publisher. A journalist employed by a major Spanish newspaper testified that Castillo-Puche was "one of the most important reporters in Spain."

Doubleday editor Kathryn B. Medina testified that she first became interested in the book after it was favorably mentioned in the Saturday Review in 1969. She asked two experienced literary critics to read the Spanish version, and both returned with positive reports on it. Doubleday proceeded to acquire the English-language rights to the book from Ediciones Destino and to engage an experienced translator, Helen Lane, for the translation.

In editing Lane's translation, Medina noticed that the book contained very uncomplimentary references to Hotchner. She

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had the passages reviewed by William Austin, a member of the Doubleday contracts department, and between them they agreed that some eleven statements should be eliminated or toned down. 2 Medina relayed this proposal to Castillo-Puche by letter. He vouched for the statements but accepted the suggested modifications. 3

As published in 1974, the translation contained six passages which the jury ultimately found to be libellous. In five of these Castillo-Puche describes Hotchner as a manipulator, a "toady," a "hypocrite" who exhibited "two-faced behavior" toward Hemingway's true friends and "put up a very good front...

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