Crowell-Collier Pub. Co. v. Caldwell

• Decision Date: 17 January 1949
• Docket Number: No. 12446.,12446.
• Citation: 170 F.2d 941
• Parties: CROWELL-COLLIER PUB. CO. v. CALDWELL.
• Court: U.S. Court of Appeals — Fifth Circuit

170 F.2d 941 (1948)

CROWELL-COLLIER PUB. CO. v. CALDWELL.

No. 12446.

United States Court of Appeals Fifth Circuit.

December 7, 1948.

Rehearing Denied January 17, 1949.

Robt. R. Milam, of Jacksonville, Fla., and Chester H. Ferguson, of Tampa, Fla. (Ralph H. Martin, of Jacksonville, Fla., on the brief), for appellant.

John T. Wiggington and Julius F. Parker, both of Tallahassee, Fla., for appellee.

Before HUTCHESON and SIBLEY, Circuit Judges, and UNDERWOOD, District Judge.

HUTCHESON, Circuit Judge.

When this cause was here before¹ on Caldwell's appeal from a judgment dismissing his complaint, we held that a case of libel per se was alleged. Saying: "Privilege and want of malice should await final decision on the trial", we sent the cause back for trial on the merits. It is here again, this time on Collier's appeal from a judgment on a verdict for $237,500.00.

Urging upon us that the undisputed evidence made out a case within the decision of the Supreme Court of Florida in Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 86 A.L.R. 466, showing neither wantonness, recklessness, nor carelessness in its publication, and that the case proven, as contrasted with the case alleged, was one of no libel, appellant is here insisting that a verdict should have been directed, or judgment, notwithstanding the verdict, entered in its favor, and that because this was not done, the judgment must be reversed with directions to enter judgment for defendant.

In addition, appellant points to the puffed and swollen verdict as indisputable testimony in support of its insistence that there were so many and such flagrant and prejudicial errors of omission and commission, including the failure to restrain plaintiff's counsel from and rebuke them for making arguments² designed and calculated to arouse local and sectional prejudices and inflame the minds of the jury, as to deprive the defendant of a fair trial. It insists, in short, that the case, instead of having been tried to the jury as a case of libel upon an individual, was tried as a sectional conflict, a case of North against South, and because of the errors of the trial court is not properly charging the jury and in permitting the trial to get out of bounds, the result, as evidenced by the verdict, was a complete miscarriage of justice requiring a reversal.

We cannot at all agree with appellant's view that, under the authority of Layne's case, its defense of qualified privilege was made out as matter of law and a verdict should have been instructed for it on that ground. Forward looking in its point of view as the Layne case is, it does not go to the extent claimed for it by appellant. That there is a qualified privilege to publish matters affecting the interest of the general public, there is no doubt, nor any that the publication in this case had to do with such matters.

The authorities, however, are in disagreement as to the nature and extent of this privilege when there is publication to the general public rather than to duly constituted authority and the publication contains misstatements of fact. A majority of the courts have held that the privilege of public discussion is limited to comment or opinion and does not extend to false assertions of fact. A minority have held that even false statements of fact concerning officers and candidates are privileged if they are made for the public benefit and with an honest belief in their truth.³

In holding in the Layne case that a daily newspaper may, under particular circumstances, publish a false news dispatch without liability, the Florida Supreme Court has aligned itself with those courts which believe that the public interests are better served by an extension than by a restriction of the privilege. But making plain the narrowness of the way and the straitness of the path when truth, though unwittingly, is forsaken, the court declares that wantonness, recklessness, or carelessness in making such publication would be an abuse⁴ of the privilege.

It is well settled, too, that a false injurious publication in a public journal for sensation and increase of circulation is in a legal sense malicious.⁵ Though, therefore, the general nature and circumstances of the publication and the evidence defendant offered in connection with it do furnish support to the claim of privilege, the evidence taken as a whole presents a jury issue.

We are not in any doubt, however, that the judgment must be reversed. As was made clear in the former opinion of this court, the publication attacked was libelous per se only because spoken of the plaintiff in his capacity as Governor. We said 161 F.2d 335:

"The imputations here do not appear to be such as would affect the plaintiff as an attorney, if he were now practicing, but they would naturally affect him in his office as Governor. * * *

"If the imputations published hold the Governor up as indifferent to a lynching in his State, or condoning it, and approving the work of the mob as saving trouble to the courts, they grievously reflect on him in his office, and if false and unprivileged are actionable per se, injury and damage being implied. * * * A jury might well conclude that the Governor was being held up as unfaithful to his office by reason of facts falsely stated and implied in the editorial."

The injury and damage implied from accusations of this kind is actual pecuniary injury and damage,⁶ and while it is settled that damages will be awarded in a substantial amount, because of imputations of official misconduct, the illustrations given in the text⁷ show that it would have been fanciful in the extreme for the jury to find upon pleadings and proof in this case actual damages in any considerable sum. If, therefore, the verdict in this case were for actual damages alone, it would, of course, be a monstrosity. Nor does the fact that the jury was harangued⁸ for heavy punitive damages and the judge in effect directed their allowance⁹ substantially help the appellee. It is a general rule of law, more strictly observed in some jurisdictions than in others that the punitive power of the jury is not unrestrained but is to be exercised with discretion, and that exemplary or punitive damages awarded must bear some, though not an exact relation to actual damages.¹⁰ If the verdict in this case were merely excessive in respect both of actual and punitive damages and in respect of the relation between the two, these facts standing alone would not constitute reversible error. But the verdict here was not merely in the ordinary sense an excessive verdict. It was an inordinate one, without precedent or sound legal basis.¹¹ Induced, as it was, by inflammatory pleading and evidence and by argument which was allowed to go unchecked and unrebuked, the judgment would have to be reversed¹² if the trial had been attended with no other error.

But this is by no means the case. Carried away by the sense of unfolding drama presented by the spectacle of a sectional row, a struggle of North against South, Florida against New York, David against Goliath, Ivanhoe against the Templer, litigants, witnesses, lawyers, and jury seemed to regard the contest as a sporting event, a wager by battle, in which the best battler ought to and would win. As to the judge, though he maintained his complete detachment throughout, he held himself a little too aloof from the trial, was a little too much the moderator, not quite enough the administrator, with the result that the trial got out of bounds.¹³ It was not only that the judge refused to grant the motion for a change of venue so that the drama...