Roden v. Empire Printing Company, 6725-6-7-A.

• Decision Date: 02 December 1955
• Docket Number: No. 6725-6-7-A.,07 June 6725
• Citation: 135 F. Supp. 665
• Parties: Henry RODEN, Plaintiff, v. EMPIRE PRINTING COMPANY, a corporation, Defendant. Ernest GRUENING, Plaintiff, v. EMPIRE PRINTING COMPANY, a corporation, Defendant. Frank A. METCALF, Plaintiff, v. EMPIRE PRINTING COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Alaska

135 F. Supp. 665

Henry RODEN, Plaintiff, v. EMPIRE PRINTING COMPANY, a corporation, Defendant.

Ernest GRUENING, Plaintiff, v. EMPIRE PRINTING COMPANY, a corporation, Defendant.

Frank A. METCALF, Plaintiff, v. EMPIRE PRINTING COMPANY, a corporation, Defendant.

Nos. 6725-6-7-A.

United States District Court District Court, Alaska First Division, Ketchikan.

December 2, 1955.

Wendell P. Kay (of Kay & Buckalew), Anchorage, Alaska, Buell A. Nesbett (of McCutcheon & Nesbett), Anchorage, Alaska, for plaintiffs.

H. L. Faulkner and Roger G. Connor (of Faulkner, Banfield & Boochever), Juneau, Alaska, for defendant.

HODGE, District Judge.

Three actions for libel against the defendant Empire Printing Company were consolidated and tried together before a jury on November 14th through 19th, last, and resulted in a verdict of the jury in each case awarding to the plaintiff the sum of $1 as compensatory damages and the sum of $5,000 as punitive damages. Defendant objects to the entry of judgment in accordance with the verdicts of the jury upon the grounds that the verdicts for punitive damages are out of proportion and not commensurate with the amounts awarded for compensatory damages and that to award $15,000 punitive damages is grossly excessive, contending that the Court may exercise its discretion as to the amount of such award.

By the great weight of authority the rule is now well established that in an action for defamation punitive damages may be recovered although the actual damages found are only nominal in amount. This is especially true whenever it is made to appear that the defendant acted with malice or where the defamation complained of is actionable per se. 15 Am.Jur., Damages, p. 708, Sec. 271; 33 Am.Jur., Libel and Slander, p. 190, Sec. 202; Annotation 33 A.L.R. 403, 414; Vingi v. Lisianski Packing Co., 6 Alaska 182.

In this case considerable evidence was produced by the plaintiffs tending to show malice on the part of the defendant, its officers and agents, in the publication complained of. The Court also held that the publication was libelous per se as imputing to plaintiffs the commission of a crime, and the jury were so instructed. Under these circumstances we find that the verdicts of the jury were proper and were not excessive in view of all of the circumstances. We can find no rule of law suggesting that the verdicts for compensatory and punitive damages should be commensurate with each other, and in fact the jury were instructed that an award for compensatory damages need have no relationship to any amount awarded for punitive damages, which we conceive to be a correct statement of the law.

Defendant also objects to the allowance of costs and attorneys' fees in the judgment upon the grounds that the verdict for compensatory damages would not entitle plaintiffs to costs, and also on the theory that by awarding each plaintiff $5,000 as punitive damages it would appear that the jury may well have made that award to the plaintiffs for the purpose of defraying their expenses of the trial of the action and preparing therefor. By statute costs are allowed of course to the plaintiff upon a judgment of the District Court in his favor in an action for libel, provided that if the plaintiff recovers less than $50.00 damages he shall recover no more costs than damages. Sec. 55-11-52, A.C.L.A.1949. The word "damages" as used in such statute must be held to include punitive as well as compensatory damages.

It is true that attorneys' fees by way of costs may be allowed to the prevailing party in the discretion of the Court. Sec. 55-11-51, A.C.L.A.1949. However, we see no valid reason why the Court in the exercise of its discretion should not allow attorneys' fees to the prevailing parties in these cases.

Nor can we find any merit in the suggestion that the punitive damages were awarded by the jury for the purpose of defraying the expenses of the plaintiffs. Such view is wholly contrary to the Instructions of the Court and we cannot indulge in any such presumption. In fact it is obvious that it was the intention of the jury, pursuant to the Instructions of the Court, that although they found that the plaintiffs had suffered no actual damages, punitive damages should be assessed by way of example, or punishment, on account of the malice shown or that the publication was made recklessly and wantonly, without regard for the rights of plaintiffs, which finding was fully justified by the evidence.

A schedule of such attorneys' fees which are ordinarily fixed unless the Court, in its discretion, otherwise directs, is provided by Rule 45, Uniform Rules of the District Court for the District of Alaska. The attorneys' fees thus provided if allowed to the plaintiff in each case separately would considerably exceed the amount to be allowed in the three actions jointly. The previous order of the Court was to the effect that the cases "be consolidated and tried jointly," pursuant to Rule 42(a), Federal Rules of Civil Procedure, 28 U.S.C.A. When so consolidated the suits are merged and constitute thereafter but one action. 1 Am.Jur., Actions, p. 480, Sec. 95; Lumiansky v. Tessier, 213 Mass. 182, 99 N.E. 1051; Annotation 58 Am.Dec. 512. It would...