DeCarvalho v. daSilva, 77-332-A

• Decision Date: 21 May 1980
• Docket Number: No. 77-332-A,77-332-A
• Parties: Manuel A. DeCARVALHO v. Manuel L. daSILVA. ppeal.
• Court: Rhode Island Supreme Court

Page 806

414 A.2d 806

Manuel A. DeCARVALHO v. Manuel L. daSILVA.

No. 77-332-Appeal.

Supreme Court of Rhode Island.

May 21, 1980.

Arcaro, Belilove & Kolodney, Abraham Belilove, Providence, for plaintiff.

Edwards & Angell, Knight Edwards, Joseph V. Cavanagh, Jr., Providence, for defendant.

OPINION

WEISBERGER, Justice.

This is an action wherein the plaintiff seeks compensatory and punitive damages for defamation of character arising out of four allegedly libelous publications. The case was tried in the Superior Court before a jury over a period commencing February 17, 1977, and ending on March 3, 1977. At the conclusion of the evidence, the plaintiff made a motion for a directed verdict on the issue of liability. The defendant also made a motion for a directed verdict. The trial justice reserved decision on said motions and submitted the case to the jury, which returned a verdict for the defendant. After verdict the trial justice denied both motions for direction. Subsequently, the plaintiff filed a motion for new trial which was denied by the trial justice. The plaintiff appeals from the denial of his motion for direction of verdict and the denial of his motion for new trial; he also asserts as error numerous evidentiary rulings and instructions given by the trial justice to the jury. The facts of the case from which the controversy arose are as follows.

The plaintiff is a member of the bar of this state, of the United States District Court for Rhode Island, and of the United States Supreme Court. He specializes in immigration practice and has been an attorney in good standing since 1960. Prior to his becoming a member of the Rhode Island bar, plaintiff, who is a native of Portugal, was appointed by the Government of Portugal as its Consul for the State of Rhode Island. He served in this capacity from 1950 until shortly after his admission to the bar in 1960. Thereafter, in 1966, he was appointed Honorary Portuguese Consul for the State of Rhode Island. In this capacity plaintiff signed visas for visitors to the Azores and 300 or 400 passports per year for Portuguese nationals who were resident in the Rhode Island area. He appeared at dinners from time to time and participated in functions of interest to the Portuguese-American community. He made addresses three to five times a year, served on community committees, and helped to entertain visiting Portuguese dignitaries. Evidence indicated that the Portuguese-American community in Rhode Island numbered between 70,000 and 100,000 people. In 1969 plaintiff, together with two other individuals, Joao Tomaz and Joao Pacheco, agreed to assist certain Portuguese workers who were natives of the Island of Sao Miguel in the Azores to emigrate to the United States, where plaintiff had arranged for employment with a Rhode Island firm that was desirous of obtaining a number of Portuguese employees. Apparently each employee recruited from the Azores would pay $250. In return for this sum, plaintiff and his two associates arranged for the necessary documents relating to emigration from Portugal and immigration into the United States. Such assistance in emigration was forbidden by a Portuguese statute, referred to in evidence as Article 25 of Portuguese Public Law 36.558, enacted October 28, 1947. This statute forbade the "engagement" of emigrants, an activity that might be defined as performing services as a go-between in order to assist in the emigration of a Portuguese national.

A Portuguese trial court at Ribeira Grande, Azores, found plaintiff and his associates guilty of the violation of this statute and imposed a fine of 90,000 escudos upon each "transgressor." The plaintiff was required to pay his fine because of his presumed knowledge of the law, since he had exercised the function of Portuguese Consul. The other two "transgressors" had their fines suspended since the court specifically found that their offenses arose out of their confidence in plaintiff and were committed in the belief that they were acting legally. This offense did not involve moral turpitude but reflected, rather, the policy of the Portuguese government that no "go-between" was necessary in order to assist a Portuguese emigrant. All responsibility for such work had been placed by the government in the Department of Immigration, which the court stated to be wholly responsible for all processes and formalities prior to the emigration of any Portuguese national and the necessary documentation incident thereto. The decision of the court of first instance was upheld by two appellate courts, including the Supreme Court of Portugal.

The defendant, a doctor of medicine, had been active in Portuguese-American affairs for many years. He was a frequent volunteer and active worker in matters relating to the Portuguese-American community. The defendant became aware of plaintiff's "transgression" and shortly thereafter expressed his opinion with acerbic vigor in four publications. Two of the publications were printed in a Portuguese periodical entitled A Chama on July 8, 1971, and January 13, 1972. Two statements were broadcast over station WADK in Newport, Rhode Island, on January 16, 1972, and January 23, 1972. All four publications were in the Portuguese language. Translations of these publications were introduced into evidence in the course of the trial. In these publications the conduct of plaintiff was characterized as a "scandal upon scandal." The plaintiff was referred to as a "wolf in sheep's clothing" and as one who shames all Portuguese-Americans and the prestige of the glorious name of Portugal in the United States. Although the publications were substantially correct in describing the nature of the offense of which plaintiff was convicted, they contained a number of inaccuracies and exaggerations. For example, some of the publications stated that plaintiff had been suspended as honorary consul. This was not true. The publications contained statements that plaintiff and his associates had been previously fined as "engagers of emigrants," when in fact there had only been one fine and one conviction. It was suggested in the publications that plaintiff and his associates had charged the emigrants $1,000 each, while in fact only $350 had been charged by plaintiff's Portuguese associates and only $250 had been requested by plaintiff as necessary for documentation. The $100 in excess was returned to each individual. The Portuguese court found specifically that "they were not overcharged." The court further found that although twenty persons were to migrate from Sao Miguel, only eighteen received contracts and only fifteen took advantage of the opportunity; the remaining three decided to go to Canada. The publications suggested that nineteen emigrants were involved but that the initial plan was for sixty emigrants. The trial justice found as a fact in his decision on motion for new trial that a representative of a firm named Natco had requested plaintiff to arrange to bring in eighteen to twenty Portuguese nationals to work in the New England area, even though the Portuguese court had made reference to a plan to contract for a total of "some 60 Portuguese workers."

Generally plaintiff contends that the four publications exaggerated the incident out of all proportion to its real importance. The plaintiff asserts that the transgression of which he was convicted did not involve moral turpitude, that it was not scandalous, and that it represented only a minor violation of Portuguese law. He further asserts that this exaggeration, coupled with inaccuracies and certain statements of fact which were wrong, constituted defamation of character which in the classic sense brought plaintiff into public ridicule, hatred, and contempt.

Initially, it was the task of the trial justice in this case to determine the substantive and adjectival rules that were applicable to allegedly libelous publications. For approximately two centuries the doctrine of libel and slander was "almost exclusively the business of state courts and legislatures." Gertz v. Robert Welch, Inc., 418 U.S. 323, 369-70, 94 S.Ct. 2997, 3022, 41 L.Ed.2d 789, 822 (1974) (White, J., dissenting). In his dissenting opinion, Mr. Justice White faithfully sets forth the general rules concerning libel and slander as they prevailed in the vast majority of jurisdictions:

"Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment because until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment subject only to limited exceptions carved out since 1964." Id. at 370, 94 S.Ct. at 3022, 41 L.Ed.2d at 822-23 (White, J., dissenting).

The general rule described by Justice White was consonant with the law of Rhode Island. See Bray v. Providence Journal Co., 101 R.I. 111, 220 A.2d 531 (1966); Laudati v. Stea, 44 R.I. 303, 117 A. 422 (1922). Generally, the intent of a defendant was immaterial and care or lack of care was not relevant save in mitigation of damages. Folwell v. Providence Journal Co., 19 R.I. 551, 37 A. 6 (1896). The prevailing rule was that truth was a complete defense to liability in any action for defamation. Restatement Torts § 582 (1938). Punitive damages might be awarded in the event that the plaintiff proved that the article was published with actual malice or recklessness equivalent to malice. Folwell v. Providence Journal Co., 19 R.I. at 555, 37 A. at 7. Malice in the common-law sense connoted evil intent or motive arising from spite or ill will, or culpable recklessness or willful or wanton disregard of the rights and...