Marley v. Providence Journal Co., 9536

• Decision Date: 30 July 1957
• Docket Number: No. 9536,9536
• Citation: 86 R.I. 229,134 A.2d 180
• Parties: Arthur E. MARLEY v. PROVIDENCE JOURNAL COMPANY. Ex.
• Court: Rhode Island Supreme Court

Page 180

134 A.2d 180

86 R.I. 229

Arthur E. MARLEY v. PROVIDENCE JOURNAL COMPANY.

Ex. No. 9536.

Supreme Court of Rhode Island.

July 30, 1957.

Aram A. Arabian, Providence, for plaintiff.

Edwards & Angell, William H. Edwards, Edward F. Hindle, and Beverly Glenn Long, Providence, for defendant.

PAOLINO, Justice.

This action of trespass on the case for libel was tried before a jury in the superior court and resulted in a verdict for the plaintiff in the sum of $40,000. The defendant's motion for a new trial was granted unless the plaintiff filed a remittitur of all of the verdict in excess of $25,000. He filed such remittitur and the case is before us on the defendant's exceptions to the denial of its motion for an unconditional new trial, to rulings on evidence, and to the charge of the court. The defendant has filed 65 exceptions. However, we shall consider only those exceptions which it has briefed and argued. Under our well-established rule all other exceptions are deemed to be waived.

The plaintiff had been employed by the department of social welfare of the state of Rhode Island as superintendent of the Rhode Island Training School for Boys from 1935 to 1939 and from 1941 to July 12, 1951. The director of the department of social welfare removed him from that office on July 12, 1951. The defendant corporation is the publisher and owner of two daily newspapers in Providence, The Evening Bulletin and The Providence Journal, both of which have a general circulation in the state.

The plaintiff's declaration, which is in one court, in substance alleges that defendant 'maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace' published in its newspapers certain articles which are defamatory and false and caused damage to him. These articles, which were published on July 11 and 12, 1951, related to plaintiff's conduct in office, his management of the school, and his removal from office by the director of social welfare.

The article published on July 11 in The Evening Bulletin contained two stories, one of which dealt with a statement attributed to the director of social welfare that plaintiff would be removed from office because of 'additional evidence of maladministration and improper use of the canteen fund * * *.' This article related details of certain transactions involving expenditures from the 'canteen fund.' From the story in said article it appeared that plaintiff had used the fund in part for his personal gain and advantage.

The second story was based on an affidavit given to defendant by James Read, a former employee of the school, in which he charged plaintiff with having struck and beaten inmates of the school in violation of a regulation prohibiting the infliction of corporal punishment. In this story Read was quoted with respect to specific instances in which he charged plaintiff with having struck and beaten boys and with having permitted other employees of the school to strike and beat them in his presence.

On the following day, July 12, 1951, an article containing two stories of similar substance and import were published in The Providence Journal, the defendant's morning newspaper. It is not disputed that the articles published on July 11 and 12, 1951, which are the basis of plaintiff's claim of libel, were published of and concerning plaintiff.

In addition to the plea of the general issue, defendant also filed pleas of 'fair comment,' 'privilege,' and 'truth.' And in accordance with the provisions of General Laws 1938, chapter 520, § 2, defendant also filed notice that it would prove the truth of the publications charged as libelous.

At the conclusion of the trial the jury returned a verdict for plaintiff, assessed damages in the sum of $40,000, and further made special findings of fact in answer to four questions propounded by defendant. In reply to such questions the jury found specially that the facts stated in the two articles published by defendant in The Evening Bulletin of July 11, 1951, and the two articles in The Providence Journal of July 12, 1951, were not substantially true and correct; that prior to the publication of said articles, defendant did not make reasonable investigation to discover the truth of the facts as stated in said articles; that defendant did not have reasonable and probable grounds to believe the truth of the facts stated in the articles; and, finally, that the jury replied 'Yes' in answer to the fourth question, namely: 'In publishing the articles in its newspapers on July 11 and July 12, 1951, did the defendant or any of its employees have any actual malice toward the plaintiff?'

The defendant filed a motion for a new trial which was based on the grounds that the verdict was against the law, the evidence and the weight thereof; that the damages awarded were excessive; and on the ground of newly-discovered evidence which latter ground defendant expressly waived at the hearing on the motion. Thereafter the trial justice filed a rescript in which, after reviewing the evidence and the applicable law, he ordered a new trial unless plaintiff remitted all of the verdict in excess of $25,000. This the plaintiff has done.

The defendant thereupon prosecuted the instant bill of exceptions in which it contends that the trial justice erred in charging the jury on the question of punitive damages; that it committed reversible error in certain rulings on the admissibility of evidence; and that it erred in refusing to grant defendant a new trial unconditionally.

Exceptions numbered 60 and 61 relate to the trial justice's instructions to the jury upon the question of punitive damages. Upon this issue he instructed the jury, in part, as follows: '* * * where truth is pleaded as a defense, the truth of the libel is urged and found to be not true that that will sustain an award of punitive damages. In other words, if the defense of truth fails, punitive damages may be awarded. Now, punitive damages are not a matter of right. The plaintiff is not entitled to recover punitive damages as a matter of right. Whether or not they are awarded is a matter which is entirely within your discretion * * *.'

The defendant argues that the law as thus charged is too severe and that this court should adopt a rule which would not penalize a defendant who fails to prove the truth of the facts which constitute an alleged libel. There is a difference of opinion among legal authorities as to the effect of an unsustained plea of truth in an action of libel and slander. The defendant contends that the better view is that an unsustained plea of truth may be considered to be evidence of actual malice warranting the assessment of punitive damages only when it appears that the defense was made maliciously or in bad faith or with improper motives.

We do not agree with defendant's contentions on this issue. In Kent v. Bongartz, 15 R.I. 72, 22 A. 1023, it was held that actual malice is not to be inferred from mere falsity. Later, in Kenyon v. Cameron, 17 R.I. 122, 20 A. 233, in effect it was further decided that failure to prove the truth did not result in an implication of malice so as to entitle a plaintiff to exemplary damages. In that case the court stated, 17 R.I. at page 125, 20 A. at page 234: 'Awarding exemplary damages, in cases where they are allowable, is discretionary with the jury * * *. For the defendant to plead the truth when he cannot prove it may be evidence, but it is not conclusive evidence, of actual malice.' And in Tillinghast v. McLeod, 17 R.I. 208, at page 212, 21 A. 345, at page 347, in denying defendant's petition for a new trial, we stated: '* * * the charge was serious, and might well distress him. The defendant reiterated it at the trial, and tried to prove its truth. Such an attempt, when it fails, may well be regarded by the jury as an aggravation of the wrong, and often as showing actual malice, warranting exemplary damages.'

It is our opinion that in an action of libel or slander the plea of 'truth' of itself constitutes a reaffirmation of the libel or slander which, when not substantiated to the satisfaction of the jury, may be regarded by them as an aggravation of the wrong showing actual malice and warranting an award of punitive damages. After carefully reading the pertinent instructions in the instant case, we are of the opinion that the trial justice followed the rule established in this state in actions for libel or slander, that if the defense of truth fails, punitive damages may be awarded in the discretion of the jury, notwithstanding the absence of specific evidence of malice other than the failure to prove the truth of the libelous statements. These exceptions are overruled.

The above rule rests in part, at least, upon the principle of the dignity of man and upon the right of the individual, be he private citizen or public official, to be protected from unwarranted libel or slander. However, it is equally a fundamental principle of our system of justice that a verdict based upon inadmissible evidence cannot be sustained where that evidence is of such a nature that it may well have prejudiced the jury to the detriment of the party against whom the verdict was returned. We shall therefore next consider defendant's exceptions to rulings of the trial justice relating to the admission of certain evidence, which had been duly objected to by defendant, in order to determine whether any of such rulings constituted prejudicial error.

Exceptions 9 and 10 relate to the admission in evidence, as plaintiff's exhibit 11, of an editorial entitled 'Beware--The Pointing Finger' which was published in The Cranston Herald, a weekly newspaper in the city of Cranston, under date of July 19, 1951, and which had been written by its editor and publisher, Mrs. Rosalie Mary Frost. At the trial of the instant case in the superior court she subsequently testified as a witness for plaintiff. The editorial was offered by pla...