Washington Times Co. v. Bonner

• Decision Date: 14 September 1936
• Docket Number: No. 6253.,6253.
• Citation: 66 App. DC 280,86 F.2d 836
• Parties: WASHINGTON TIMES CO. v. BONNER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 280, 86 F.2d 836 (1936)

WASHINGTON TIMES CO. v. BONNER.

No. 6253.

United States Court of Appeals for the District of Columbia.

Decided September 14, 1936.

Rehearing Denied December 5, 1936.

COPYRIGHT MATERIAL OMITTED

Wilton J. Lambert, R. H. Yeatman, and William E. Leahy, all of Washington, D. C., and Manheim Rosenzweig, of New York City, for appellant.

Frank J. Hogan, John W. Guider, and Edmund L. Jones, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from a judgment of the Supreme Court of the District of Columbia¹ entered upon a verdict in favor of the appellee, F. E. Bonner, plaintiff below (hereafter called plaintiff), in the sum of $45,000. The suit was against the appellant, Washington Times Company, a corporation, defendant below (hereafter called defendant), for libel through newspaper articles. The questions presented on the appeal, stating them in general terms, have to do with alleged errors on the part of the trial court in respect of: Instructions to the jury, especially in relation to an asserted defense of qualified privilege and in relation to damages; rulings upon the admissibility of evidence; refusal to grant a motion for a new trial because of alleged interference with a juror, misconduct of counsel, undue restriction by the court of comment by counsel, and prejudice on the part of the jury.

It appears from the record that: The plaintiff, trained as a civil engineer, had devoted himself professionally especially to the field of hydro-electric power. For twenty years prior to 1929 he had been in the Forest Service of the United States Government, and during the latter part of that time had been assigned duties in connection with the work of the Federal Power Commission (hereafter called the Commission). In 1925 he had been considered for appointment as Executive Secretary of the Commission, and in 1929 he was again considered and was appointed to that post, vice O. C. Merrill, resigned. At that time, the Commission consisted of the Secretaries of War, Interior and Agriculture. These officials were primarily engaged in the duties of their respective departments; they held formal meetings of the Commission from time to time, and also consulted informally with the Executive Secretary, but in the large the actual work of the Commission was carried on by the Executive Secretary. He was at the head of a legal, engineering, and clerical staff. There was apparently some ill feeling and division of opinion among the employees of the Commission both before and during the plaintiff's service as Executive Secretary, in respect particularly of the most effective method of carrying on the accounting work of the Commission, and in respect also of the manner of keeping files. In March, 1930, a Mrs. Minnie L. Ward, the Commission's file clerk, became irritated at Frank W. Griffith, the chief clerk of the Commission, and drove him out of her office — throwing water upon him and hitting him with eggs. For this she was suspended. Subsequently she filed charges with the Secretary of the Interior, as the then Acting Chairman of the Commission, the Attorney General, and the President, alleging that the plaintiff and Griffith had removed from the Commission's files letters written by various power companies recommending the plaintiff for appointment as Executive Secretary. At about this time there had been held hearings of the Senate Committee on Interstate Commerce in respect of alleged influence of private power companies on governmental activities, and not long before the episode of water and eggs, the plaintiff had testified at such a hearing that he was not aware of having been recommended for his appointment by power companies.

About a month after the episode of water and eggs and the filing of the charges by Mrs. Ward, the defendant published, beginning in April and ending in May, 1930, in various issues of its papers, the Washington Herald and the Washington Times, five articles charged by the plaintiff to be libelous. The first two were in identical terms but appeared in different issues of the same paper on the same day. They included pictures of the plaintiff, of Griffith, of Mrs. Ward, of the Secretary of the Interior, of two power company officials, and of an alleged lobbyist for the power companies, and contained also a cartoon of the egg throwing by Mrs. Ward, and a pungent rhyme in the style of "The House that Jack Built," with a moral attached advising honesty in public office. Captioning this matter was the title "ANGRY WOMAN THROWS SIX EGGS AND HITS POWER TRUST." A further caption, below the rhyme and moral, read, "Power Trust Keeps Government Employees Good Boys by Prospect of Promoting the Faithful to Good Jobs." Underneath this was a story-editorial expanding upon the rhyme and the moral. The three other articles were news stories, one captioned "MISSING POWER PAPERS FOUND," the second, "POWER AIDES MAY BE TRIED IN FILES CASE — Alleged Records Stripping to Be Studied by Rover the then United States Attorney for the District of Columbia; Bonner, Griffiths Named," and the third, "EGG BARRAGE KEEPS BONNER FROM PARLEY — Rifling of Power Commission Files Eliminates Secretary as Delegate to Berlin." In effect, the five articles asserted that: The plaintiff really ran the Commission; he had been "slipped" into his post as Executive Secretary through the influence of power companies, of which he was really the representative, and whose interests he was unlawfully promoting at the expense of the welfare of the country's power resources, this to advance his own pecuniary advantage in the future; he had abstracted from the files of the Commission letters from power companies recommending his appointment; in all of the respects above mentioned he had violated his duty as an officer of the United States, and in particular he was subject to possible criminal prosecution for rifling the files — some of the asserted letters had been discovered by the Department of Justice; due to the foregoing matters, or some of them, he had been eliminated as a delegate to the World Power Conference in Berlin for which he had previously been selected.

In December, 1930, the Commission was reorganized by a statute (16 U.S.C.A. § 792) which provided for a full-time officer personnel. The plaintiff was not employed by the new Commission. His private employment since the matters in issue has been sporadic.

The plaintiff's declaration alleged that: The plaintiff had at all times been a patriotic citizen and a civil engineer of good standing; the defendant maliciously published the articles complained of; the charges therein made were untrue; by virtue of publication of the articles, the plaintiff had been brought into disgrace, had been greatly injured in his name, reputation, business and profession, and had lost great gains that he otherwise would have made. At the outset the plaintiff prayed for both compensatory and punitive damages. The defendant entered pleas of general denial, truth, privilege, and want of malice, and pleas in mitigation of damages. At the opening of the trial, the plaintiff amended his declaration by eliminating therefrom the assertions of malice and the prayer for punitive damages. He also eliminated all but five counts there were originally seventeen, which covered the five articles above described; and at the trial the first two counts, based upon the same article, were consolidated and treated as one. The eliminations reduced the issues of fact to questions of the truth of the charges and of actual damages. There was no dispute as to publication, and no dispute that the articles as phrased were libelous per se, i. e., actionable upon their face unless privileged. Under the instructions given, the plaintiff's verdict resolved the issue of truth against the defendant. There was a conflict of evidence on this issue, and no point is made on the appeal that the evidence thereon was insufficient to support the verdict. There were numerous witnesses and much documentary evidence, including depositions. The trial occupied substantially a month. The verdict in respect of the five counts on which the case was tried, was for the defendant on one count, for the plaintiff for $25,000 compensatory damages on the two counts consolidated, and for the plaintiff for $10,000 compensatory damages on each of the two remaining counts. After the verdict was entered, there was a motion for a new trial, which the trial court overruled, and this appeal was then perfected. The assignment of errors includes sixty-nine points, but in the briefs on appeal only thirty-nine are relied upon. Thereunder are presented the following questions:

I. Did the trial court err in ruling that proof of truth of the charges made against the plaintiff was necessary for a verdict in the defendant's favor? The court so ruled in instructions given, and in refusing instructions requested including instructions requesting a directed verdict for the defendant on all counts. It is apparently the theory of the defendant that, malice and punitive damages being out of the case, it is as a matter of law immaterial whether the articles published were true or false. Defendant argues this theory of defense in part in terms of qualified privilege and in part in terms of fair comment. It urges a qualified privilege on the part of Mrs. Ward to prefer charges against the plaintiff, seemingly asserting her privilege in its own behalf; it also urges in its own right a privilege to report Mrs. Ward's charges and to make fair comment upon them and upon matters of public interest related to them.

The law recognizes, under certain circumstances, a privilege, in the absence of malice, i. e., a qualified privilege, to make defamatory statements against another even if false. Thus the statement of a master as to...