Butts v. Curtis Publishing Company

• Citation: 242 F. Supp. 390
• Decision Date: 07 April 1964
• Docket Number: Civ. A. No. 8311.
• Parties: Wallace BUTTS, Plaintiff, v. CURTIS PUBLISHING COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

242 F. Supp. 390

Wallace BUTTS, Plaintiff, v. CURTIS PUBLISHING COMPANY, Defendant.

Civ. A. No. 8311.

United States District Court N. D. Georgia, Atlanta Division.

April 7, 1964.

Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., for plaintiff.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., for defendant.

MORGAN, District Judge.

Defendant, on February 28, 1964, under Rule 60(b) (2), Federal Rules of Civil Procedure, 28 U.S.C.A., filed a motion for a new trial upon the ground of the discovery of new evidence, contending that such evidence conclusively demonstrates the falsity of the testimony of two of the plaintiff's witnesses, Dr. Frank A. Rose and Coach Paul Bryant, and strongly supports the defense of justification. The motion is also based upon alleged conduct of plaintiff in attempting to avoid the conditions on which defendant's motion for a new trial was denied and a judgment in plaintiff's favor was granted.

Thereafter, defendant filed an additional motion for a new trial pursuant to Rule 60(b), Federal Rules of Civil Procedure, because of a change in the law of libel and the constitutional restrictions placed upon an action for libel by virtue of the United States Supreme Court decison of March 9, 1964, in the case of New York Times Company v. Sullivan 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.

Even though a final judgment had been entered in the case at hand and an appeal from such judgment has been perfected by the filing of a notice of appeal, this District Court retains jurisdiction to consider and deny such motions under Rule 60(b). See Ferrell v. Trailmobile, Inc. (5 C.A., 1955), 223 F.2d 697.

The gist of Part I of the first motion is that there is substantial variance between the testimony of Dr. Rose and Coach Bryant in their testimony at the trial of this case and depositions which were later given by Dr. Rose and his secretary, Mrs. Marian H. Park, in an action pending in the Northern District of Alabama in the case of Paul Bryant v. Curtis Publishing Company, Case No. 63-166, which testimony by deposition was taken on January 8, 1964.

In attempting to sustain its plea of justification, the defendant introduced at the trial of this case a letter dated March 6, 1963, written by Dr. Rose, as President of the University of Alabama, to Dr. O. C. Aderhold, as President of the University of Georgia. The letter concerns certain telephone calls relating to conversations on new football rule changes which had transpired between Coach Bryant and plaintiff Butts. At the trial, Dr. Rose in his testimony, in attempting to explain the contents of the Aderhold letter, stated that the letter was hurriedly dictated on the morning of March 6, 1963, and signed by his secretary, Mrs. Park, as he (Dr. Rose) was attempting to catch an early morning plane for Washington, D. C., to attend a meeting of the American Council on Education.

In the depositions taken in the Bryant case, defendant shows that Dr. Rose did not go to Washington, D. C., on the date of March 6, 1963, nor was the letter hurriedly dictated as there was a previous draft of the Aderhold letter, dated March 5, 1963, which draft was substantially the same as the contents of the March 6, 1963, original letter mailed and received by President Aderhold.

The defendant further asserts that Dr. Rose, in his testimony at the trial testified that Coach Bryant told him he did not remember the call of September 16, 1962, to Coach Butts in Athens, Georgia, although he could have made it, and even though Rose had interrogated Bryant several times between February 24, 1963, and March 6, 1963. However, by a recently discovered letter, dated February 28, 1963, written by Bryant to Rose, Bryant, in this letter, informed Rose that he remembered the call to Butts in the middle of September very well, and that although Rose admitted receiving the letter dated February 28, 1963, prior to March 6, 1963, Rose still maintained throughout his testimony in said deposition that Bryant reported to him through all the investigation that he had no recollection of the Sunday, September 16, 1962, telephone call to plaintiff Butts.

Defendant contends that on the issue of the letter (Exhibit D-21) plaintiff was able to explain away the contents of the letter by means of Rose's characterization of Exhibit D-21 as a hasty, errorladen letter, and Bryant's total lack of recollection concerning the telephone call, when in fact the newly discovered evidence establishes that Bryant did recall the Sunday telephone call and that the letter was not a hasty, error-laden letter, but was a careful and thoughtful letter, and that someone received the draft of such letter dated March 5, 1963, prior to its final draft on March 6, 1963.

The phrase "newly discovered evidence" refers to evidence of facts in existence at the time of the trial of which the aggrieved party was excusably ignorant. In the case of Chemical Delinting Company v. Jackson, 193 F.2d 123, 127, the Fifth Circuit Court of Appeals has held:

"The motion must show that the evidence was discovered since the trial; must show facts from which the court may infer reasonable diligence on the part of the movant; must show that the evidence is not merely cumulative or impeaching; must show that it is material; and must show that such evidence will probably produce a different result."

See also King v. Leach (5 C.A., 1942), 131 F.2d 8.

The evidence clearly shows that the letter from Bryant to Rose was in existence in the latter part of February, 1963. The evidence further shows that the draft of the letter from Rose to Aderhold was in existence prior to March 6, 1963. Under the liberal discovery rule provided by the Federal Rules of Civil Procedure, the defendant could have obtained all of this evidence which it now has available prior to the trial of this case in August, 1963. No facts have been shown by the movant here from which this Court may infer reasonable diligence on its part.

Even assuming the evidence could not have been produced at the trial in August by due diligence — inferences not fairly conveyed by the record — the evidence now presented tends merely to affect the weight and credibility of the evidence of Dr. Rose and does not constitute a proper basis for a new trial. See English v. Mattson (5 C.A., 1954), 214 F.2d 406, 409; Grant County Deposit Bank v. Greene, 6 Cir., 200 F.2d 835.

After considering the "newly discovered evidence" presented in the motion at hand, and from this Court's review of all the evidence presented at the trial of the case, even if all the testimony entered at this hearing on the motion had been presented at the trial in August, this new evidence affecting the credibility of Dr. Rose would not have changed the verdict in this case. See Chemical Delinting Company v. Jackson, supra, and English v. Mattson, supra.

The second ground advanced by the defendant for a new trial under Rule 60(b) is to vacate the judgment entered against the defendant and to grant a new trial because after the plaintiff had filed his written consent to the remittitur (this consent still being on file) that, to the defendant's motion for a new trial, the plaintiff has filed a notice of cross-appeal. The question of the cross-appeal and the merits thereof are not for decision by this trial Court, but is a matter to be considered on appeal. See Woodworth v. Chesbrough, 244 U.S. 79, 37 S.Ct. 583, 61 L.Ed. 1005.

The thrust of defendant's additional motion for a new trial under Rule 60(b) is based upon the recent decision of the United States Supreme Court, rendered on March 9, 1964, in the case of New York Times Company v. Sullivan. The Supreme Court's ruling in the Times case, speaking through Mr. Justice Brennan, held:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages

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