Duncan v. Pearson

• Decision Date: 12 April 1943
• Docket Number: No. 5029.,5029.
• Citation: 135 F.2d 146
• Parties: DUNCAN v. PEARSON.
• Court: U.S. Court of Appeals — Fourth Circuit

135 F.2d 146 (1943)

DUNCAN v. PEARSON.

No. 5029.

Circuit Court of Appeals, Fourth Circuit.

April 12, 1943.

Frank G. Tompkins, of Columbia, S. C. (Tompkins & Tompkins, of Columbia, S. C., on the brief), for appellant.

Donald Russell, of Spartanburg, S. C. (Pinckney L. Cain, of Columbia, S. C., Daniel & Russell, of Spartanburg, S. C., and Thomas, Cain & Black, of Columbia, S. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Daniel T. Duncan brought a civil action in the United States District Court for the Eastern District of South Carolina against Drew Pearson, individually and as one of the co-partners writing and publishing under the trade name of "The Daily Washington Merry-Go-Round", for an alleged libelous article published of and concerning Duncan on November 25, 1938. The article published by Pearson, for which Duncan seeks damages in the sum of $200,000, was as follows:

"Buzzard's Roost —

"One reason a lot of voters last election turned sour on the New Deal, despite tremendous spending, is the inconsistency and laxness of administration in Washington.

"Take, for instance, PWA's famous Buzzard's Roost power project in Greenwood county, S. C., which the Duke Power Company fought for three years, until the Supreme Court overruled them.

"Instead of promoting good-will for Roosevelt in South Carolina, the project has turned a lot of people against him. Here are the reasons:

"1. Bare subsistence wages are paid. Truck drivers are getting $6 and $7 a week. Roosevelt has accused Southern big business of depressing wage levels, but his administrators are permitting exactly the same thing. At the neighboring Santee-Cooper project, A. F. of L. protests finally increased wages, but not at Buzzard's Roost.

"2. It now turns out that Dan Duncan, promoter and engineer for Buzzard's Roost, will be the chief beneficiary. Formerly an unemployed engineer, Duncan high-pressured the power project to the Greenwood county finance board; they applied for PWA funds. He makes 6 per cent of the total contract, or about $180,000. Meanwhile a lot of people in the county are wondering what they will do with the power.

"3. Workers resent the fact that PWA is paying Greenwood officials federal cash, while their wages are low.

"Local Officials —

"Various members of the Greenwood county finance board have received funds from the federal grant. These include E. L. Brooks, chairman of the board, paid last summer at the rate of $50 monthly; M. G. Bowles and W. M. Rogers, members of the board, paid the same; E. I. Davis, secretary of the board, paid $375 for June and July; Alice Steifle, board stenographer, paid $45 a month, R. C. Lomnick, county superintendent of schools, $50 a month.

"What particularly gripes a lot of South Carolinians is that these payments apparently have been OK'd in Washington. Folks can't understand a system which underpays labor, supposedly the friend of Roosevelt, and then rewards local officials with jobs of their own.

"Note — When the Public Works Administration was asked to investigate alleged Buzzard's Roost dirt, it sent as investigator Francis Belue, whose brother is bookkeeper for the Lee Construction Company, builders of the project's power house. Investigator Belue whitewashed the Roost."

Duncan, in his complaint, alleged that this article was libelous in that it was written "* * * of the plaintiff in connection with and concerning his profession as a construction engineer and was calculated to bring the plaintiff into disrepute with the government administration and that it inferred and led those who read it to believe that the plaintiff was dishonest, wanting in integrity and had been guilty of fraud and dishonest dealing; and that by reason of the publication thereof he had been brought into disrepute and had been humiliated and embarrassed, both in his personal and professional reputation."

The answer of Pearson to this complaint admitted the publication of the article but alleged by way of an affirmative defense that Pearson had the right to publish and comment upon matters of public interest and that the statements contained in the article were true and set forth no fraud or dishonesty on the part of Duncan. The answer further alleged that the article was published without malice in a bona fide desire to acquaint the public with matters of general interest concerning the use of public funds.

During the trial of the case, Duncan sought to introduce in evidence an article concerning him published by Pearson on September 6, 1938, together with certain correspondence with respect to this article, had with Pearson. This evidence was excluded by the trial court on the ground that this previous article was inadmissible in order to establish malice on the part of Pearson, inasmuch as the article itself was not libelous.

The issues were subsequently submitted to the jury by the trial court under fair and comprehensive instructions and the jury returned a verdict in favor of Pearson. Duncan then moved for a new trial but the motion was overruled. Judgment was thereafter entered for Pearson and Duncan has duly taken an appeal to this Court. We are now concerned with the propriety of the trial court's action in excluding the evidence of the former publication made by Pearson concerning Duncan and the ensuing correspondence pertaining thereto.

The article in question, which was held to be inadmissible, was included in the daily column written under the name of "The Daily Washington Merry-Go-Round" by Pearson and Allen, published on September 6, 1938. It read as follows:

"S. S. Post-Mortem:

"There is no one on the floor of the Senate whom Secretary of Agriculture Wallace would take greater delight in having purged than `Cotton Ed' Smith, of South Carolina.

"Senator Smith is chairman of the Senate agricultural committee, and as such has been a consistent opponent of Henry Wallace's farm bills. His retirement would make Henry's work immeasurably easier.

"But, perhaps without knowing it, it was Henry Wallace, who may have contributed most to Cotton Ed's renomination.

"It happens that South Carolina cotton farmers always had measured their farm acreage by guesswork or surveying instruments, and this year Secretary Wallace decided to measure acreage through airplane photographs.

"When these new airplane measurements came in, there was untold wrath and indignation among the cotton farmers of South Carolina. For in many cases, the airplane measurements were out of line with previous estimates, and the farmers had to plow under an extra acre or so of cotton — all without receiving benefits from it.

"This aroused farm wrath against the New Deal, and helped nominate Smith, its opponent.

"Another important reason for the victory of Senator Smith was that Senator Jimmy Byrnes, supposed `great friend' of F. D. Roosevelt, wanted Smith to win. Byrnes felt that Cotton Ed, because of his age, might not stay in the Senate indefinitely, and that if a vacancy should occur, he, Byrnes, might determine the senatorial successor.

"Another factor influencing the South Carolina primary was that many workers on PWA projects simply did not and do not vote. One big PWA project, Buzzard's Roost, is in the charge of Project Promoter Ben Duncan. He and his chief engineer, Ben Griswold, both were opposed to any candidate whom the President favors.

"Whether their workmen knew this or not, it is a fact that only one man asked for permission to leave the Buzzard's Roost project and come home to vote."

Even a cursory reading indicates that this article does not contain any derogatory or libelous matter concerning Duncan. In reply, however, Duncan wrote the following letter on September 8, 1938, addressed to Robert Allen:

"Daniel T. Duncan "Engineering Company "Ninety-Six, S. C. "September 8, 1938 "Robert S. Allen "Washington Merry Go Round "Washington, D. C.

"Dear Sir:

"Enclosed you will find a clipping from the Index-Journal at Greenwood, S. C., answering a paragraph in the Merry-Go-Round which paragraph is quoted in the enclosed clipping.

"I feel honored in being mentioned in your Merry Go Round and I have enjoyed your articles so much all along and my hat is off to you for publishing anything that you want to. The freedom of the press is the most wonderful thing in any nation, and, when that is lost, any country is lost.

"Now I am so strongly Roosevelt that I would cast my vote for any candidate that he wants.

"You can see from the clipping how far from facts all of this article was and I am going to ask you two favors:

"1. That...