Anderson v. Dun & Bradstreet, Inc.

• Decision Date: 19 October 1976
• Docket Number: No. 75-1421,75-1421
• Citation: 543 F.2d 732
• Parties: Charles M. ANDERSON, Individually, and Gibson Products Company of Alamogordo, Inc., a New Mexico Corporation, Appellants, v. DUN & BRADSTREET, INC., a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 732

543 F.2d 732

Charles M. ANDERSON, Individually, and Gibson Products Company of Alamogordo, Inc., a New Mexico Corporation, Appellants, v. DUN & BRADSTREET, INC., a corporation, Appellee.

No. 75-1421.

United States Court of Appeals Tenth Circuit.

Argued and Submitted March 23, 1976.

Decided Oct. 19, 1976.

F. Randolph Burroughs, Burroughs & Rhodes, Alamogordo, N. M., for appellants.

Gary R. Kilpatric, Montgomery, Federici, Andrews, Hannahs & Buell, Santa Fe, N. M., for appellee.

Before LEWIS, Chief Judge, SETH, Circuit Judge, and MORRIS, Chief Judge. ^*

MORRIS, Chief Judge.

This is a libel action. The plaintiffs and appellants are Charles M. Anderson and Gibson Products Company of Alamogordo, Inc., a New Mexico corporation. The defendant and appellee is Dun & Bradstreet, Inc. Anderson is President and Chief Executive Officer of the plaintiff corporation. The essence of plaintiffs' claim is that the defendant published a series of reports stating that Anderson was a general partner and an owner of Gibson Products Company of Arizona; that in truth and in fact Anderson was not at the time the reports were published or at any other time a general partner of said company; that the defendant did not follow reasonable investigative procedures in ascertaining the facts; that Gibson Products Company of Arizona went into bankruptcy and thereafter the defendant started listing various matters involving Gibson Products of Arizona on the Gibson Products Company of Alamogordo, Inc.'s business reports; that the publication of these erroneous and false reports were both negligent and malicious and that both plaintiffs suffered extensive damages as a result thereof.

The jury rendered a verdict in favor of appellee. Appellants here urge four instances of error. They contend that the trial court erred (1) in excusing a juror for cause after the commencement of the trial; (2) in refusing to instruct on negligence; (3) in instructing that appellee is entitled to a qualified privilege in appellants' libel action; and (4) in its instruction regarding the proof of malice necessary to overcome such qualified privilege.

Appellee argues that no errors were committed in the discharge of the juror or in the instructions. Appellee further contends that no proper objection was raised at trial as to the instruction about malice so that this issue was not properly preserved on appeal. Appellee also asserts that the second, third and fourth propositions of error constitute assertions by appellants that the trial court incorrectly decided undecided questions of New Mexico law, but that appellants have not made any showing that such decisions were clear error, a showing which appellee contends is necessary before this court may consider the propriety of the trial court's rulings with respect to undecided questions of state law.

The four points raised by appellants will be discussed separately.

1. Dismissal of Juror.

On the morning of the fourth day of the trial the trial judge excused one of the jurors and seated an alternate juror. The original juror was excused after she revealed that during the evening recess she had inadvertently met and had a conversation in a local bar with a Mr. Briggs, whom she had not previously known, who was an employee of appellee. Although he had been in the courtroom during the trial she did not recognize him and was sure he had not recognized her until after he invited her to dance, and they began to talk. Each was alone and they were sitting at adjoining tables. Briggs had asked her to dance and while they were dancing had told her that he was the representative of appellee who had been sitting at the back throughout the trial. The juror said that Briggs said that "It's too bad that we met like this," to which she replied, "I think it is, it's rather inadvertent"; he then suggested their meeting be "a secret just between you and me." He also offered to buy her a drink, which she refused.

The juror herself brought the matter to the attention of the trial judge, who excused her on his own motion. The appellants objected when she was excused. Here, appellants contend that the dismissal of this juror was an abuse of discretion because the juror repeatedly asserted that she could still be fair and impartial; because on voir dire this juror had admitted an acquaintanceship with the attorney for appellants and hence the hint of impropriety would attach to appellants, not appellee, in the minds of the remaining jurors; because the substitution of an alternate juror after appellants' presentation of most of their case prejudiced appellants for the reason that alternate jurors are less attentive than seated jurors; and because appellee should not have been permitted to benefit from the wrongdoing of its own employee.

Decisions about whether to seat or excuse jurors are in the discretion of the trial court, and such decisions will be reversed only where there has been an abuse of discretion. United States v. Mason, 440 F.2d 1293 (10th Cir. 1971), cert. denied 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971); United States v. Porth, 426 F.2d 519 (10th Cir. 1970), cert. denied 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970). There was no abuse of discretion here. On learning of the chance encounter between an employee of appellee and the juror, Judge Bratton promptly informed counsel and undertook on the record a series of private conversations with the juror; he discussed the details of the encounter, her reactions to it, and the possible effect it might have on her verdict. The juror repeatedly answered the court's questions that she felt her impartiality had not been affected, but she also expressed distress that appellee's employee, on learning her identity as a juror, had wanted to keep their meeting a secret. The trial court ultimately concluded, in conversation with counsel and outside the presence of the juror, that "Well what I'm going to do, I'm going to excuse the lady, much as I dislike doing so, because for many reasons, one of which is the embarrassment to her. Obviously, she's disturbed or she would not have reported it to me, and in spite of her expressed feelings, in my judgment, the incident is one which would affect her." When the judge informed the juror, again in private, that he would excuse her, the juror replied, "Well, I think that probably that might be best," and "it could be something that could cause a mistrial, and that would bother me."

The procedure followed by the court and the court's decision suggest no abuse of discretion. The trial judge conducted a thorough investigation of the matter and made his decision after ample opportunity to observe the juror and assess her ability to continue to serve. A record of each conversation with the juror was made and was on each occasion read to counsel. The court's discretion was carefully and prudently exercised.

Appellants argue that as a result of voir dire examination the other jurors were cognizant that appellants' attorney was acquainted with this juror. Because of this knowledge, appellants contend, the other jurors were bound to assume that appellants were responsible for the juror's discharge. This is pure conjecture. The explanation of the incident made by the judge to the remaining jurors was carefully calculated to avoid prejudice to either side. And we cannot conclude that any prejudice could or did result from the dismissal.

Appellants also speculate that they were prejudiced because the alternate juror seated in the place of the excused juror would not have been so attentive as the excused juror during the presentation of appellants' case in chief. Appellants neither argue nor attempt to show that the alternate juror was in fact inattentive. We have held that we will not impute to jurors a disregard of their express duties. United States v. Baca, 494 F.2d 424 (10th Cir. 1974).

Appellants also argue that appellee should not have been permitted to benefit from its own wrongdoing. Appellants did object to the dismissal of the juror and the trial judge noted concern at the time about excusing a juror satisfactory to appellants because of the conduct of appellee's employee. But appellants have failed to show that any prejudice resulted from this incident. Further, the substituted juror was accepted by appellants when seated as an alternate. A party to a lawsuit has no vested right to any particular juror; the right of challenge is the right to exclude incompetent jurors, not to include particular persons who may be competent. United States v. Chapman, 158 F.2d 417 (10th Cir. 1947). A litigant has no vested right to keep a particular juror on the panel. United States v. Rodriguez, 459 F.2d 983 (9th Cir. 1972), cert. denied, 409 U.S. 865, 93 S.Ct. 158, 34 L.Ed.2d 113 (1972). "(U)nless it is shown otherwise, the error of the court, if there be error, in discharging or excusing a qualified juror, is not prejudicial or reversible error." Chapman, supra, at 419. Appellants have failed to show prejudice or abuse of discretion in the trial court's action and hence no error is established with respect to appellants' first proposition.

2. Qualified Privilege.

Appellants contend that the trial judge erred in holding that appellee is entitled to a qualified privilege in libel actions. The trial judge instructed that appellee is protected by a qualified privilege in this lawsuit and that, accordingly, it was necessary for appellants to prove malice. Appellants contend that this instruction was erroneous.

Appellants admit that the question whether a qualified privilege protects credit reporting agencies in libel actions has not been decided in New Mexico. Appellee argues that because it is an undecided question of state law, this court must accept the trial judge's decision about it, absent a showing that his decision was clearly erroneous. This circuit has repeatedly honored the rule that "Absent a showing that the trial...