Hogan v. New York Times Company

• Decision Date: 19 July 1962
• Docket Number: Civ. No. 7647.
• Citation: 211 F. Supp. 99
• Parties: Lawrence HOGAN and Thomas Maloney, Plaintiffs, v. NEW YORK TIMES COMPANY, Defendant.
• Court: U.S. District Court — District of Connecticut

211 F. Supp. 99

Lawrence HOGAN and Thomas Maloney, Plaintiffs, v. NEW YORK TIMES COMPANY, Defendant.

Civ. No. 7647.

United States District Court D. Connecticut.

July 19, 1962.

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Donald F. Zezima and Ronald M. Schwartz, of Macrides, Zezima & Schwartz, Stamford, Conn., for plaintiffs.

Frank E. Callahan and Thew Wright, Jr., of Wiggin & Dana, New Haven, Conn., for defendant.

TIMBERS, District Judge.

Defendant moves, pursuant to Rule 50(b), Fed.R.Civ.P., to set aside the verdict and judgment entered thereon, for entry of judgment in accordance with defendant's motion for a directed verdict, or, in the alternative, for a new trial.

Plaintiffs, police officers of the City of Stamford, sued defendant for libel based upon a New York Times front page article published October 4, 1958 concerning plaintiffs in the performance of their official duties as police officers.

The article described a night raid conducted by six policemen, including plaintiffs, on a street corner dice game in Stamford; use of a florist's truck as a decoy by the policemen to surprise the dice players; loading into the rear of the truck the arrested players, some of whom thereupon emerged from the front of the truck and attempted to escape; swinging of night sticks, during the course of which plaintiff Maloney was said to have struck plaintiff Hogan who, according to the story, slumped to the pavement with a badly bruised head; apprehension and booking at police headquarters of only four of the ten dice players; and loss of four of the police night sticks in the scramble. The raid was described as following the script of a Keystone Comedy.

Defendant admitted publishing the article complained of; denied that it was false; denied the alleged innuendoes; denied plaintiffs' claims of damage; and alleged affirmatively that the article "described a matter of public interest, was published in the defendant's newspaper in the course of the defendant's business of disseminating the news and as such was privileged."

Jurisdiction is based on diversity of citizenship,¹ plaintiffs being citizens of Connecticut and defendant a citizen of New York. The amounts in controversy, in the case of each plaintiff, exceed $10,000, exclusive of interest and costs.

After a five day trial, the jury returned a $6,020 verdict in favor of plaintiff Hogan ($5,000 general damages, $20 special damages and $1,000 exemplary damages) and a $6,125 verdict in favor of plaintiff Maloney ($5,000 general damages, $125 special damages and $1,000 exemplary damages).

By the instant motion, defendant raises questions as to the propriety of the Court's failure to direct a verdict for defendant and as to the propriety of the Court's charge to the jury, particularly with respect to the Court's outlining the essential elements of the case.²

The Court charged in substance (1) that publication by defendant of an article concerning plaintiffs was admitted by the pleadings; (2) that the publication was libelous per se as a matter of law; (3) that, with respect to the question of privilege, (a) the article was published on an occasion of privilege as a matter of law, but (b) whether that privilege had been abused was a question of fact for jury determination; and (4) that whether plaintiffs had been damaged and, if so, the amounts of general, special and exemplary damages, were questions of fact for jury determination. As part of the charge on damages, over objection by plaintiffs, the Court charged as a matter of law that the retraction, requested by plaintiffs two and one-half months after the publication, was not timely; accordingly, in order to recover general damages, as distinguished from special damages, plaintiffs were required to prove malice in fact.³

Defendant's claims of error, preserved by timely requests to charge and exceptions to the charge, are directed chiefly at the Court's charging that the publication was libelous per se as a matter of law and the instructions regarding malice in fact (i) within the meaning of the statute limiting recovery, absent a timely request for retraction, to special damages unless malice in fact is shown and (ii) for the purpose of establishing an abuse of the occasion of privilege.

The Court denies defendant's motion. An order has been entered accordingly.

The reasons for denying the motion are reflected in the annotations to the charge hereinafter set forth, it being the belief of the Court that the portions of the charge challenged by defendant can best be evaluated in the context of the charge as a whole and in the light of the authorities upon which the Court relied.

It is a courthouse canard that a jury charge is intended more for appellate eyes than for jury ears. Not so with this charge. Colloquial in form, it was intended primarily as a guide for the jury. In a state where trials of libel actions have resulted all too frequently in hung juries, the Court considered it to be its duty, by eliminating from jury consideration issues which properly should be determined as a matter of law, to enable the jury to focus on those critical questions of fact which plainly were for jury determination. Hence, over objection by plaintiffs, the Court instructed the jury as a matter of law that the article was published on an occasion of privilege and that the tardy retraction requested by plaintiffs was ineffective to relieve them of the necessity of proving malice in fact if they were to recover anything but special damages. On the other hand, over objection by defendant, the Court instructed the jury as a matter of law that the publication was libelous per se. That left for jury determination the critical questions of whether defendant had abused its privilege and whether plaintiffs had been damaged.⁴

The Court's charge to the jury, annotated to indicate the authorities relied upon, was as follows.⁵

COURT'S CHARGE TO THE JURY

I FUNCTION OF COURT AND JURY

THE COURT: Ladies and gentlemen, we have now reached the point in this case where it becomes our joint function, as ministers of justice in the truest sense, to perform our respective duties; your duty as judges of the facts, my duty as judge of the law.

I shall endeavor to the best of my ability to instruct you with respect to the applicable principles of law which you in turn are to apply to the facts as you find them. I will not in any way, shape, or form seek to usurp your function as judges of the facts. While I may comment on the evidence, or make reference to it as we go along, please bear in mind, as I have indicated throughout, that that is your sole and exclusive province, to decide the ultimate facts in this case.

By the same token, I must deferentially and respectfully ask you to take the law from the Court, not to conjecture what it is or what it should be, or anything of the sort. That is the system of government under which we operate, and I am sure that there will be no reservations in your minds on that score.

II NATURE OF CASE

Now, this case is, as counsel—and, able counsel on both sides—have referred to it, a libel action. It is in the general category of tort litigation, a tort action. In other words, it is in the same category as automobile collision cases or cases of that sort. But, it is entirely different, as you can quickly see, in that the harm claimed to have been done in the nature of the tort, which is the libel, the alleged libel, does not take the form of physical contact, physical impact by one party on another, or a mechanism on another. It is a matter of the effect of spoken words —written words, rather, in a libel action —spoken words being in a slander action.

The law which I am about to try to compress into a nutshell for your guidance in deciding this case is the result of many, many years—indeed centuries —of the development of the law of libel which has come down to us from across the sea, which was well-established long before our little colony of Connecticut was organized and ultimately became a state.

So, what I am about to outline to you, I simply say parenthetically, is not my idea of what the law should be necessarily, nor is it anything that's been fashioned for the particular purpose of this particular case. These are legal principles deeply-seated in the law.

III FUNDAMENTAL INTERESTS INVOLVED

You can appreciate, I think, when you see what is involved here, trying to view it objectively and dispassionately as each of you will of course, that there is involved at the core of this case a fundamental conflict between two competing interests.

One, the interest of the individual and his right to remain undamaged in his reputation in the community as a result of any libelous statements with reference to him. That is a fundamental right which inures to the benefit of each of us.

On the other hand, there is an equally fundamental principle involved with the other competing interest, the right of a free press to carry on its business in an orderly fashion, in a business-like way, and to disseminate the news and to publish and circulate that news without fear or restraint so far as reporting accurately, fearlessly, and completely; particularly with respect to the conduct of public officials and officers of the law, as in the case of these two plaintiffs.

So, you have in that framework in this case the clash of two fundamental interests. It is vital that we as jurors and judges in our attempt to resolve this controversy have in mind that both of these competing interests are equally precious to our democratic form of government and society in this country.

IV SUMMARY OF PLEADINGS

Now, in short, in this case, the plaintiffs are Lawrence Hogan and Thomas Maloney of Stamford, Connecticut, both members of the Police Department in the City of Stamford. They charge the defendant, the New York Times, with having published and circulated an article, defamatory, about them, and having...