Riss v. Anderson

Decision Date07 June 1962
Docket NumberNo. 16719.,16719.
Citation304 F.2d 188
PartiesRichard R. RISS, Sr., Appellant, v. Ardith L. ANDERSON, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Carl E. Laurent, of White & Laurent, Kansas City, Mo., Richard L. White, Kansas City, Mo., on the brief, for appellant.

David Skeer, Kansas City, Mo., for appellee.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This diversity action is one for damages for defamation by television on September 15, 1959. It was tried to the court and resulted in a judgment for the plaintiff against the individual defendant for $2,000 actual damages and $8,000 punitive damages. That defendant has appealed.

The plaintiff Anderson is an over-the-road truck driver residing in Kansas City, Kansas. The defendant Riss is a Missouri citizen engaged in the trucking transportation business. His corporations, Riss & Company, Inc., and Transport Manufacturing and Equipment Company of Delaware, are, respectively, a common carrier by truck and an owner of buildings and equipment which are leased to the carrier and to its employee-truckers.1

Anderson had been a driver for Riss since March 1955. In early 1959 he was was working as an owner-operator under agreements by which Transport leased to him a motor vehicle tractor and he, in turn, leased it to Riss & Company. A dispute arose at that time as to Anderson's obligation to provide new tires for the vehicle and as to his right to use for that purpose a reserve fund built up by deductions from Riss & Company's payments under its lease. This controversy was negotiated by Anderson's lawyer and Riss & Company and was settled in February 1959. As part of that settlement, the two lease agreements were terminated. Anderson did not thereafter work for Riss or for either of the corporations. This all took place prior to the accused television program of the following September.

That summer Anderson was subpoenaed by the Senate Select Committee to Investigate Improper Activities in Labor-Management Relations, then commonly called the McClellan Committee. Its Chief Counsel was Robert F. Kennedy. The Committee at that time was conducting an investigation of James R. Hoffa, President of the Teamsters Union. Kennedy had charged that Riss, as the owner of a large trucking operation, was a close personal friend of Hoffa and that as a result of this friendship Riss was able to obtain union contracts highly favorable to himself. Specifically, reference was made to an amendment in the Riss-Teamsters contract in 1956 (effecting the replacement of fringe benefits by a flat mileage rate) and it was suggested that the employees did not have an opportunity to vote on the amendment prior to its acceptance by the Union. In response to the counter-charge that the employees in fact had approved it, the Committee subpoenaed Anderson and other drivers. Anderson testified before the Committee on July 10 that the contract applied to him but that he did not vote on it and did not have an opportunity to vote on it. One other former driver and Riss also testified on the same day before the Committee.

Sometime prior to September 15, 1959, Kennedy was interviewed on a television program, entitled "Insight", emanating from Station WDAF-TV in Kansas City, Missouri. In that interview Kennedy commented about Riss and his relationship with Hoffa. The station thereafter invited Riss to appear on the same program. He accepted. The resulting interview, placed on video tape the afternoon of September 15 and broadcast by the television station that evening, has given rise to this lawsuit.

The 30-minute program followed no written script and was unrehearsed. It began:

"Announcer: Insight, an off-the-cuff interrogation of the man in the news by Editors Walt Bodine and Bill Leeds.
"Mr. Bodine: Good evening. Our guest on Insight tonight is a man whose name many of you may have seen many times on the sign across huge trucks on the road. — RISS — Mr. Richard R. Riss, Sr., President and Board Chairman of Riss & Company and Transport Manufacturing & Equipment. Mr. Riss is a man of enterprise and action, whose willingness to take a chance and to have faith in his own ideas enabled him to start from scratch as a railroad yardmaster\'s son from Poplar Bluff, Missouri, and to build one of the nation\'s largest trucking concerns.
"On the other hand he has been in the news as a witness before the Senate Rackets Committee, whose counsel, Robert Kennedy, sought to show a profitable friendship of Mr. Riss with the Teamster Chief Jimmy Hoffa. Well what is he really like, and what is his side of the story? Perhaps you will have a better insight into that after this visit tonight.
"Mr. Leeds: Mr. Riss, Bob Kennedy has accused you of being able to negotiate agreements advantageous to your company because of your friendship with Jimmy Hoffa. Would you care to comment on that?
"Mr. Riss: Yes, I would like to say that Mr. Kennedy doesn\'t know what he is talking about. * * *"

Riss then told about his personal friendship with Hoffa, defended it, stated that Hoffa's word was good and that he drove a tough bargain, explained the 1956 changes in his Teamsters contract, and asserted that they were voted upon by the Union membership. Then came the first statement complained of:

"Mr. Leeds: Didn\'t one of the drivers involved, Mr. Ardith Anderson, testify before the Committee — he said the Union members didn\'t like the change, didn\'t vote on it and saw nothing in writing about it. Do you know where he might have got that impression?
"Mr. Riss: Mr. Anderson is one of the two gentlemen that has been discharged from our company. Mr. Anderson, I believe, is the man that claimed he was sick and was not working on his truck. We told him to bring us a doctor\'s certificate to prove he was sick, or to bring the truck in. Instead of that he went down to the garage and took a lot of parts off of his truck. We ordered him to replace them. He didn\'t do it, so we let him go.
"Mr. Leeds: But Mr. Anderson did testify he didn\'t get a chance to vote on the changes in 1956. That was the point I was getting at.
"Mr. Riss: I don\'t know if Mr. Anderson was in our employ at the time that was made or not, but if he testified to the fact he did not get a chance to vote on it he is certainly mistaken. * * *"

Riss went on to defend his method of leasing equipment to his drivers. He told why he thought Hoffa was a good and successful head of his union. He described his own attitude toward Mr. Kennedy and his techniques as counsel for the Committee. The interview ended with this question and answer:

"Mr. Bodine: During this hearing, during the famous McCarthy hearings in the past, there was a lot of discussion whether a witness gets a `fair shake\'. Were you allowed to speak your piece fully, or I mean, were you able to make any statement you wanted, and so on?
"Mr. Riss: No, I say, I don\'t know whether I was able to or not. The only one remark I did make, one thing, Mr. Kennedy says, `I think that you and Mr. Hoffa have gone — have worked — framed up a deal, and that you did it for your own benefits against the members\' interests.\' And my lawyer wouldn\'t let me answer him, so all I said to him is, `Is that what you think, Mr. Kennedy?\' And then towards the very last Mr. Kennedy says, `If you will stick around, Mr. Riss, we will show you what your employees think.\' And I didn\'t know who he had subpoenaed, and I said, `Mr. Kennedy, do you have some employees that I discharged or do you have some of my regular employees?\' And it so happened that the only two employees he had were two that had been discharged, both of them for stealing. He subpoenaed twelve, I understand he subpoenaed twelve of our drivers. Ten of them were going to testify to the truth, so he wouldn\'t use them."

Riss testified in the trial court that after he returned to Kansas City from Washington he was told that two drivers formerly employed by him had also testified at the Committee hearing. He inquired at his office as to their record, "who they were and what about them." He conceded "They told me the names. I didn't especially remember the names. It is hard for me to remember names. But I was told that one of them had taken a truck, refused to bring it back; the other had taken parts". He further conceded that he had this information when he appeared on "Insight" on September 15. He acknowledged that his comment on the program about Anderson's discharge "was not true, I was mistaken * * * I was wrong about Mr. Anderson being the man who took parts off the truck. There was another driver who took parts off the truck, did the things I accused Mr. Anderson of". He also acknowledged that he recognized Anderson and that Anderson had been in his office but "we have so many boys come in the office".

Anderson testified in the trial court that he had not removed parts from his tractor, that he had not been discharged from his Riss employment for stealing, that his connection with Riss ceased upon the settlement of the negotiated controversy and the termination of the owner-operator lease arrangements, and that the statements made by Riss were false.

Anderson also testified that he was out on the road at the time of the broadcast; that he first heard about it when he telephoned his wife a day or two later and she told him she had seen it; that upon his return to Kansas City he and his wife went to the television station and asked that the broadcast be played back for them to hear; that this was done; that he was embarrassed and humiliated; that 40 or 50 persons had brought the matter of the broadcast up with him; that among these were employees and former employees of Riss, the Andersons' dentist, their milkman, casual acquaintances, relatives, neighbors, and friends; that he was outraged and humiliated to think that his wife and children should be subjected to an accusation of...

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