Manbeck v. Ostrowski, 20203.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation384 F.2d 970
Docket NumberNo. 20203.,20203.
PartiesJesse B. MANBECK, Appellant, v. Gerald S. OSTROWSKI, Appellee.
Decision Date28 July 1967

Mr. Seymour J. Spelman, Washington, D. C., with whom Mr. William Reback, Washington, D. C., was on the brief, for appellant.

Mr. Joseph Patrick Clancy, Washington, D. C., with whom Mr. Charles R. Richey, Chevy Chase, Md., was on the brief, for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.


Appellee, an attorney, sued appellant, the president of a local labor union, in slander for a statement appellant allegedly made, during a monthly meeting of the union, in which appellee was called a "shyster." The complaint, later amended to charge malice and to demand punitive damages, was countered by appellant's general denial. The action, in due course, came on for a pre-trial conference in connection with which the District Court's procedures required the parties to file statements delineating their respective positions. Appellee's statement merely reasserted the claim in his amended complaint that appellant had maliciously used the word "shyster" at the meeting, and appellant simply repeated the denial contained in his answers. Thus, from the pretrial order, which mirrored the pleadings and pre-trial statements, but a single issue for trial was visible: whether appellant had made the defamatory remark.

That appellant might have raised another defense — a qualified privilege to say what he was accused of saying — became apparent as the trial progressed. The unfolding evidence revealed that appellee had performed legal services for the union and had submitted a bill for $25.00. The bill came under discussion during the meeting in question, attendance at which was confined to union members, who were prohibited from disclosing the occurrences thereat to third parties. An ultimately successful motion was made to disallow payment of the bill on the ground that appellee's services had not been authorized by the union. Appellant spoke in support of the motion, and in so doing is supposed to have employed the defamatory word which is the basis of this lawsuit.

In his testimony, appellee attributed the statement to personal rancor and on cross-examination said that in his original complaint he had specified that appellant had made it maliciously. Appellant's counsel then requested appellee to examine the complaint to see whether malice was mentioned. At this point, the trial judge called a bench conference during which appellant's counsel announced that his purpose was to garner support for the theory that the utterance ascribed to appellant was conditionally privileged. He added that he had inadvertently omitted raising the issue of privilege at the pre-trial conference and insisted that exclusion of the defense would be highly prejudicial to his client. The judge, however, expressing the view that "it would be utterly unfair * * * for you to inject new matter at this time," ruled that the defensive possibilities of the privilege could not be exploited. The jury, to which, of course, the issue was not submitted, returned a verdict in appellee's favor for $5,000 as compensatory and $15,000 as punitive damages.

We conclude that the defense of privilege should have been let into the trial. We therefore reverse the judgment from which this appeal is taken and remand the case for a new trial.


We treat, at the outset, a contention which, were it the only one presented to us, would not require disturbance of the trial court's judgment. During the course of appellee's case in chief the trial judge, while assuring the parties that opportunities for proof would be adequate, beseeched counsel to act reasonably as to the number of witnesses called. It was later, during the presentation of appellant's case, that a problem the judge apparently had anticipated became a reality.

On the central issue — whether appellant uttered the word "shyster" — three witnesses for appellee had said that he did. After several of appellant's witnesses had sworn that he did not make the statement, his counsel made it known that there were 25 witnesses in all who would give like testimony. The judge warned that he would not allow so many and requested appellant's counsel to assess his need, adding that he would permit whatever was reasonable and would rely on counsel's good faith. After seven additional witnesses, bringing the total to twelve, had in substantially similar manner repeated the denial, the judge, sua sponte, halted the parade. He informed counsel that he would not tolerate further repetition but made it plain that this ruling did not embrace any evidence not cumulative in character.

Appellant urges us to hold that the refusal to hear the thirteen remaining witnesses was error. The proposition he presses is that a party is entitled as a matter of right to put on his entire testimonial display where, as here, it relates to a controlling factual issue. With this thesis we disagree.1 Trial courts are invested with broad discretion to determine the extent to which cumulative evidence2 will be admitted.3 This, of course, extends to testimonial as well as documentary offerings on a single point. We have so held as to criminal trials,4 and nothing occurs to us suggestive of an abnormal limitation on the court's traditional authority where the case is of a civil nature,5 albeit one involving a charge of defamation.6 A sound exercise of judgment implies, of course, careful appraisal of all demands the search for truth may exact in the particular case. But it could hardly be said on this record that, as to the issue whether the statement was or was not made, the experienced judge presiding over the trial of this case in any way failed to give either party his just due.


That appellant is supposed to have spoken upon an occasion and to a subject begetting a qualified privilege is evident from two of our past decisions. In Caldwell v. Hayden,7 the defendant, while presiding as president over a union meeting, leveled against a fellow member charges alleged to be defamatory. Observing that "the words were uttered at a meeting of the union in relation to a matter in which all the members were equally interested, and under circumstances where wide latitude will be tolerated in discussion,"8 we defined the extent of the defendant's vocal freedom by stating that "so long as he acted within the limits of reasonable criticism, though he may have been mistaken, he was within his rights."9 We said that the plaintiff, on the other hand, "by virtue of his membership in the union, and assuming to serve it, was subject to reasonable criticism in respect of the work performed for the union."10 We added that "the presumption is that the statement was made under these circumstances without malice and for the good of the order, unless the contrary can be inferred reasonably from the language itself."11

We reiterated later, in Blake v. Trainer,12 that "there is no doubt that an officer of a union has a qualified privilege when he makes a statement informing the union of any supposed dereliction of duty of its officers."13 We declared that such "a priviliged occasion exists when a communication relates to a matter of interest to one or both of the parties to the communication and when the means of publication adopted are reasonably adapted to the protection of that interest."14 We specifically noted that discourse at a union meeting is a suitable vehicle for such a publication.15 And these conclusions parallel those reached by other courts treating uncomplimentary comments made in not essentially dissimilar contexts.16

The situation at bar was rather obviously amenable to an application of these principles. Appellant's remarks were directed to the propriety of the fee appellee billed for services rendered the union. In this matter appellant, as its president, and his audience composed exclusively of its members, had a mutual interest; and under these circumstances the fact that appellee was the union's attorney, rather than an officer or member, did not dissipate the immunity the privilege affords.17 It may be that appellant, in his portrayal of appellee, sought to serve a purpose other than protection of the union's treasury,18 or went beyond what that objective could justify.19 But if the tendered issue of privilege should have been accepted for trial, it was for the jury to determine whether appellant's motive and the characterization it spawned exceeded limits the privilege sets.20


The trial judge's ruling banishing privilege rested solely on the fact that the pre-trial order did not designate it as an issue, and the considerations which seemingly moved him are well documented. A fundamental objective of the pretrial conference is "the simplification of the issues."21 The pre-trial order "limits the issues for trial to those not disposed of by admissions or agreements of counsel," and the order "when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice."22 The District Court, by its own rule and implementing instructions to counsel,23 has established comprehensive pre-trial procedures and made them applicable to all civil actions "with a view to effecting the maximum narrowing of the issues in all cases prior to trial, with resulting expedition of trials."24 Counsel are required to prepare written pre-trial statements which must "contain in concise form a concrete and precise outline of the party's version of * * * his defense * * * including his contentions as to the facts and law."25 Counsel are admonished that a general denial will not be sufficient and that "the statement should not be a mere repetition of the pleadings;"26 their statements are required to "set out clearly * * * disputed issues of...

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