Curtis Publishing Company v. Vaughan, 15201.

• Decision Date: 31 March 1960
• Docket Number: No. 15201.,15201.
• Citation: 107 US App. DC 343,278 F.2d 23
• Parties: CURTIS PUBLISHING COMPANY, Appellant, v. Harry H. VAUGHAN, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

107 US App. DC 343, 278 F.2d 23 (1960)

CURTIS PUBLISHING COMPANY, Appellant, v. Harry H. VAUGHAN, Appellee.

No. 15201.

United States Court of Appeals District of Columbia Circuit.

Argued December 9, 1959.

Decided March 31, 1960.

Mr. Philip H. Strubing, Philadelphia, of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of Court, with whom Messrs. David C. Acheson and John H. Schafer, Washington, D. C., were on the brief, for appellant. Mr. Jonathan W. Sloat, Washington, D. C., also entered an appearance for appellant.

Mr. Byron N. Scott, Washington, D. C., with whom Mr. Hyman Smollar, Washington, D. C., was on the brief, for appellee.

Before PRETTYMAN, Chief Judge, and EDGERTON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

Curtis Publishing Company appeals from a judgment entered in a libel action after a jury awarded the appellee compensatory damages in the sum of $10,000. Vaughan's complaint had charged that appellant had libeled him in the November 3, 1956 issue of its weekly magazine "The Saturday Evening Post."¹

We are concerned solely with appellant's claims that the District Court erred in failing to direct a verdict in its favor on any of three grounds, viz.: the allegedly defamatory matter was not libelous per se and no special damages had been pleaded or proved; (2) the matter complained of was subject to the defense of qualified privilege since the material dealt with events relating to a public official while in office and there was no evidence that the appellant had abused that privilege; and (3) the truth of the allegedly defamatory matter had been substantially established as a matter of law.²

I

The record before us shows that General Vaughan served as Military Aide to President Truman from 1945 to January, 1953. He also held a position identified as that of Coordinator of Veterans' Affairs. The Post in its issue of November 3, 1956, beginning at page 23, carried Part I of a series of four articles entitled "Confessions of `an S.O.B.'" by Drew Pearson, introduced in an editorial note as "America's most controversial reporter." The exhibit prominently included eight photographs which filled page 25 under the caption "Pearson Has Many Enemies." One person depicted was said in a caption to be "one of the three congressmen Pearson helped send to jail." Another former member of Congress was pictured and identified by legend as having been "convicted of war-fraud charges³ after Pearson exposed him." On the same page, the appellee Vaughan was shown in the uniform of a major general seated before a microphone, apparently testifying at a public hearing, with the legend under his photograph reading "Many Pearson charges against Harry Vaughan were later confirmed by testimony before Senate committee."

Vaughan's complaint, denouncing the caption accompanying the photograph as "false, malicious and libelous," submitted:

"The said publication specifically referred to Plaintiff by his name, in effect charged that he had committed some acts in his official capacity which had been the subject of `charges\' against him, that the said `charges\' had been investigated by a Committee of the United States Senate and confirmed by testimony before the said Committee, and was meant and intended to, could and did convey to the public the idea that Plaintiff had committed some malfeasances in office in his official capacity, that he had been `charged\' with these malfeasances by a widely read syndicated newspaper columnist, that the `charges\' had been investigated by a committee of the United States Senate, and that testimony before that committee had `confirmed\' the `charges\' of malfeasance in office, and did by insinuation and innuendo charge Plaintiff with having dealt dishonestly with the United States Government during his term of office, or with having been guilty of malfeasances in office, and was meant and intended to hold Plaintiff in contempt in the eyes of the people of the District of Columbia and throughout the United States."

The Curtis Publishing Company placed a very different construction upon the allegedly defamatory matter. As the trial record shows, its position as to the meaning to be ascribed to the language in question was summed up in a proposed instruction submitted to the trial judge. The publisher there contended

"that the caption, reasonably construed, would tend to be understood by the ordinary, average reader to mean that Pearson had charged General Vaughan with having interceded with Government agencies and departments on behalf of friends and `five percenters\' or lobbyists, and those whom they represented, and with thus having used, or permitted them to use, the great prestige of the White House, as derived from its privileged position as an important member of its staff, in obtaining or attempting to obtain special treatment for themselves or those whom they represented."⁴

Where the meaning of the words of the publication is in dispute, an issue of fact arises and must be determined by the jury.⁵

The publication "`must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So the whole item, including display lines, should be read and construed together, and its meaning and signification thus determined. * * * If * * * it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say * * *.'"⁶

In applying these rules we have observed that a construction that the language might be defamatory does not depend upon an innocent meaning which some might ascribe to the words. "The law does not strip words to their minimum meaning and ignore their implications. It does not ignore their context. The words `Smith got rich fast' would not imply corruption but the words `Smith got rich fast while he was a tax assessor' might."⁷

Here the issue was submitted to the jury, properly we think, for the trial judge found himself unable to rule as a matter of law that the publication was not libelous.⁸ Who might have authored the legend did not appear. No staff writer from the Post testified. What the "charges" were or in whose opinion the "Pearson charges" were "confirmed" was not shown. Neither in the full page illustrating Pearson's "enemies" nor in the accompanying article of November 3, 1956 could a reader discern a predicate for what the Post's staff writer had said. From beginning to end, that article, Part I of Pearson's "Confessions," made no reference whatever to Vaughan except in connection with a person whom Pearson "helped send to jail after exposing him for influence peddling under the shadow of Gen. Harry Vaughan * * *."

Considered then in the context of Pearson's having sent one former Congressman to jail as the Post's illustrations showed and its comments claimed, and of the conviction of another on warfraud "charges" after Pearson exposed him, the jury might reasonably conclude that the very use of the word "charges" might be thought to imply some malfeasance, possibly criminal in nature, by a White House staff member. There was no suggestion that Pearson's later articles were to deal only with impropriety, and the November 3, 1956 illustrations and captions, it seems to us, gave not even a hint that impropriety and not criminal conduct was meant. We see no basis upon which we may substitute our view for that established by the jury's verdict.

The jury might readily have concluded that the Post's caption, in the setting and context described, meant to the ordinary reader everything the complaint charged that it meant. A contention that, so construed, the material is not libelous cannot stand in the face of the motion for directed verdict.⁹ The trial court did not err in denying the motion, for if otherwise actionable,¹⁰ the defamatory matter gave rise to the presumption that some damage was inevitable.¹¹

The Post argues otherwise on the ground that Vaughan had been a public official from 1945 to 1953, and thus the reading public in 1956 was entitled to its published appraisal of "confirmation" of Pearson's "charges" which were aired before a Senate committee in 1949. On this aspect of the case the Post relies upon its reading of Sweeney v. Patterson.¹² Sweeney had charged that while a member of Congress, he had been libeled by published statements that his political conduct had been actuated by anti-Semitism. No special damage was alleged.¹³ We refused to pass upon whether or not the statement was privileged, for clearly it had involved "no charge of crime, corruption, gross immorality or gross incompetence." We noted that under such circumstances, the public interest in Sweeney's political conduct and views was paramount since he was a member of Congress representing the whole public and all inhabitants were vitally concerned.¹⁴

The appellant quite overlooks a vital point which we carefully noted in the Sweeney case. Distinguishing the lack of actionable character of the statement there relied upon from publications which charged officials with crime or gross immorality, we emphasized that "no such charges are involved here * * *."¹⁵

On the other hand, our appellant over Vaughan's objection, offered in evidence as its own exhibits, the Pearson articles of November 10, 17 and 24, 1956. It has pointed us to these articles upon which the Post's staff writers relied in compiling the offending caption in Vaughan's November 3, 1956 exhibit. In appellant's statement of the case in its brief, we are told that Pearson in the articles explained his purpose "in trying to report what really happens in Washington: he hoped to `have contributed somewhat to cleaner government' (Pl.Ex. 1, J.A. 96)." The Post tells us further that Pearson

"conceived of himself as `a sort of public watchdog and goader of government on graft and inefficiency.\' (Def.Ex. 3, p. 150). General Vaughan was one of Pearson\'s targets; Pearson did not join

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