Dunaway v. Troutt

• Decision Date: 24 October 1960
• Docket Number: No. 5-2153,5-2153
• Citation: 232 Ark. 615,339 S.W.2d 613
• Parties: Harold F. DUNAWAY et al., Appellants, v. Bob TROUTT, Appellee.
• Court: Arkansas Supreme Court

Page 613

339 S.W.2d 613

232 Ark. 615

Harold F. DUNAWAY et al., Appellants, v. Bob TROUTT, Appellee.

No. 5-2153.

Supreme Court of Arkansas.

Oct. 24, 1960.

Rehearing Denied Nov. 28, 1960.

Rose, Meek, House, Barron & Nash, Little Rock, for appellant Gazette Pub. Co.

Alston Jennings, Little Rock, for appellants Dunaway and Hill.

Howell, Price & Worsham, Little Rock, for appellee.

ROBINSON, Justice.

This is a libel action wherein appellee, Bob Troutt, was awarded a judgment in the sum of $100,000 against appellants, Harold F. Dunaway, Cecil B. Hill and Gazette Publishing Company. The publishing company publishes the Arkansas Gazette, a daily newspaper having statewide circulation. Dunaway and Hill are engaged in the business of the distribution and operation of music and pinball machines. Troutt is a newspaper reporter employed by the Arkansas Democrat, a daily newspaper published in Little Rock and circulated throughout the State.

On March 9, 1959, Troutt filed the complaint in this action in the Pulaski Circuit Court, alleging that on the 26th day of February, 1959, the defendants falsely and maliciously accused him of extortion, blackmail and accepting a 'pay-off'; that the defendants 'did unlawfully, wrongfully, and maliciously fabricate, invent and cause to be prepared certain tape recordings of purported telephone conversations and interviews' with him and caused such tape recordings to be materially altered and spliced and changed so as to distort and falsify the purported conversations. The complaint further alleges that Dunaway and Hill entered into a scheme and conspiracy with the Gazette to use the alleged 'spurious and falsified tape recordings for the purpose of publicly discrediting the plaintiff, Bob Troutt, with his newspaper and destroying his reputation as a competitve newspaper reporter by depicting and portraying him as an extortionist and blackmailer, thereby exposing him to the public hatred, ridicule and contempt.' And the complaint further alleges 'that on or about the 27th day of February, 1959, the defendant Gazette Publishing Company falsely and wilfully and maliciously published in the Arkansas Gazette the said defamatory articles.'

The defendants answered and admitted the publication of the alleged conversations between Troutt and Dunaway and Hill and alleged as a defense that such conversations as shown by the tape recordings did take place. The newspaper account of the alleged conversations is libelous per se, and since defendants admitted the publication of the defamatory matter, the burden was on them to prove that such alleged conversations between Troutt and Dunaway and Hill did occur. Stallings v. Whittaker, 55 Ark. 494, 18 S.W. 829; 33 Am.Jur. 256.

In support of Dunaway's and Hill's testimony that the conversations with Troutt took place as alleged, it was shown that on February 26, 1958, Dunaway and Hill bought a tape recording machine and installed it in their place of business at 11th and Main in Little Rock. The machine is such as will record on a tape telephone conversations without the knowledge of those using the telephone. It does not appear that at the time of purchasing the tape recorder on February 26th Hill and Dunaway knew Troutt, but on March 4th Dunaway called Troutt and told him that someone had been making pictures of Dunaway's and Hill's place of business and wanted to know if Troutt knew anything about it. Both Dunaway and Hill testified that subsequently they had telephone conversations with Troutt which resulted in Hill's paying to Troutt the sum of $2,000 for the purpose of preventing him from publishing in the Arkansas Democrat false articles that would be detrimental to Dunaway's and Hill's business. By its verdicts the jury necessarily found that Dunaway and Hill did not pay Troutt $2,000 as they claimed they did, and that the purported conversations as recorded on the tapes produced by Dunaway and Hill in corroboration of their testimony did not occur. The tapes were introduced in evidence, appellants contending that they are what they purport to be, a true record of the conversations between the parties; that they are the original tapes and have not been spliced or altered in any respect. On the other hand, Troutt maintains that Dunaway and Hill paid him no money whatever; that the proposition of Dunaway and Hill paying money to him was never discussed; that the only conversation he had with them about money was when they called him in February, 1959, and indicated that the pinball operators' organization wanted to donate $2,000 to the March of Dimes and that pursuant to such conversation that organization did donate $2,050 to the proper officials of the March of Dimes. Troutt contends that Dunaway and Hill changed, altered and spliced the recorded tapes to make it appear that they made a deal with him whereby he was paid $2,000 for an improper purpose, as heretofore mentioned.

In support of his contention that the tapes were altered, Troutt produced as a witness Mr. Robert Oakes Jordan, a qualified expert in the field of recording devices. He testified that it is easy to alter tapes like the ones introduced in evidence and that in his opinion those particular tapes had been altered and spliced. Mr. Jordan testified that there are 50 or 60 spots in the tapes that indicate they have been altered in one way or another and that about 15 of such places give him absolute assurance that the tapes are altered. Mr. Jordan used the tapes to point out to the jury those things upon which he based his opinion that they have been altered. Troutt's testimony, coupled with that of Jordan, is substantial evidence to support a verdict in favor of the plaintiff. Moreover, Mr. William S. Bachman, an expert called as a witness by appellants, testified that in his opinion the tapes had not been altered, although he said they showed evidence of having been spliced. Defendants produced weighty evidence to support their version of what transpired, but of course here we do not consider the weight of the evidence. On that point the only question considered is whether there is substantial evidence to support the verdict. Providence Washington Ins. Co. v. Eagle Milling Co., Inc., 214 Ark. 918, 219 S.W.2d 233; Bockman v. World Ins. Co., 223 Ark. 665, 268 S.W.2d 1.

Hill testified that he paid $2,000 to Troutt in the presence of Judge Robert Laster of the Little Rock Municipal Court. Prior to the trial of the case, appellants gave due notice that the discovery deposition of Judge Laster would be taken. Before the date set for the taking of such deposition, appellants petitioned the trial court for an order authorizing the issuance of a subpoena duces tecum requiring the production of records of Judge Laster's bank transactions along about the time Dunaway and Hill claimed they paid $2,000 to Troutt. This was on the theory that Troutt may have given some of the money to Judge Laster. The petition was denied. Ark.Stat. § 28-356 provides that upon the motion of any party showing good cause the court may order the production of documents, etc. The trial court has a wide discretion in determining whether good cause is shown for the production of documents. Vale v. Huff, 228 Ark. 272, 306 S.W.2d 861. We cannot say the trial court abused its discretion where the appellants were asking for an investigation of the financial affairs of one who was not a party to the case and was never called as a witness in the case.

The complaint alleges that the defendants schemed and conspired together to use spurious and falsified tape recordings for the purpose of publicly discrediting the plaintiff. The Gazette requested the following instruction which was refused by the court: 'You are instructed that there is no evidence that the defendant Gazette Publishing Company schemed or conspired with the co-defendants Hill and Dunaway to discredit the plaintiff or impeach his reputation, and you will therefore find for the defendant Gazette Publishing Company on that issue.' In view of the evidence the court did not err in refusing this instruction. Mr. Hugh Patterson, called as a witness by appellee, testified that he is the publisher of the Arkansas Gazette; that he was out at Mr. Dunaway's house the day before the press conference at which the transcript of the tape recordings was released to the press; and at that time, the day before the press conference, he heard the tapes played. No written transcript of the recordings had then been made, but later, and before the press conference, the attorney for Dunaway and Hill furnished to Mr. Patterson a written transcript of the recordings. Patterson drove by and picked up the transcript but did not stay. A reasonable inference deducible from the testimony is that the day before the transcript was released to the press, Dunaway and Hill, their attorney and Patterson agreed that such a release would be made. The court therefore did not err in refusing to give the above mentioned requested instruction.

The court gave appellee's requested instruction No. 1, as follows: 'You are instructed that the article published by the defendant, Gazette Publishing Company, on February 27, 1959, and set out in the complaint and exhibits thereto, is actionable of itself and that it is not privileged, and the plaintiff is entitled to recover against the defendant, Gazette Publishing Company, such compensatory damages as will fully and adequately compensate him by reason of the publication of the defamatory article by the defendant, Gazette Publishing Company, not in excess of the amount sued for, unless you find the matters concerning the plaintiff contained in the article to be true or substantially true.' This instruction was copied from an instruction approved by this Court in State Press Co., Inc. v. Willett, 219 Ark. 850, 245 S.W.2d 403. In the case at bar, by instructions No. 3 and No. 11 the court properly informed the jury as to the law on...