Weider v. Hoffman

• Court: U.S. District Court — Middle District of Pennsylvania
• Writing for the Court: J. Richard Budding, Budding & Yost, York, Pa., H. Joseph Hepford, Harrisburg, Pa., for defendants
• Citation: Weider v. Hoffman, 238 F.Supp. 437 (M.D. Pa. 1965)
• Decision Date: 11 February 1965
• Docket Number: Civ. No. 6593.
• Parties: Joseph WEIDER and Mr. America Publishing Co., Inc., Plaintiffs, v. Robert C. HOFFMAN, also known as Bob Hoffman, individually and trading as Strength and Health Publishing Co., and York Barbell Company, Inc., Defendants.

238 F. Supp. 437

Joseph WEIDER and Mr. America Publishing Co., Inc., Plaintiffs, v. Robert C. HOFFMAN, also known as Bob Hoffman, individually and trading as Strength and Health Publishing Co., and York Barbell Company, Inc., Defendants.

Civ. No. 6593.

United States District Court M. D. Pennsylvania.

February 4, 1965.

As Amended February 11, 1965.

Harold Tull, Harrisburg, Pa., George J. Ivins, Philadelphia, Pa., for plaintiffs.

J. Richard Budding, Budding & Yost, York, Pa., H. Joseph Hepford, Harrisburg, Pa., for defendants.

SHERIDAN, Chief Judge.

These are motions by plaintiffs for a new trial on a verdict for defendants in a libel action, and by plaintiffs, defendants in the counterclaim, for judgment n. o. v. or for a new trial¹ on a verdict in favor of one of the defendants, Robert C. Hoffman, on his counterclaim for conspiracy.

Jurisdiction is based on diversity of citizenship and the amount involved. Pennsylvania law is applicable.²

Plaintiff, Joseph Weider, and defendant, Robert C. Hoffman, are each engaged in various enterprises dealing with physical culture and weight lifting. Hoffman owns 98 percent of the stock of defendant, York Barbell Company, Inc., a manufacturer of weight lifting and physical culture apparatus and supplies, which in turn owns defendant, Strength and Health Co. This publishing company publishes Strength & Health, a physical culture magazine which disseminates information concerning the weight lifting and physical culture field, and which advertises the products of defendant, York Barbell Company, and York Athletic Supply Company, not a party to this suit.

Plaintiff, Joseph Weider, disseminates information concerning his interests through various magazines, one of which is Mr. America, published by plaintiff, Mr. America Publishing Co., Inc. Another is Muscle Builder, a magazine published by companies controlled by Weider.

Plaintiffs' amended complaint, in four "counts," charged defendants with maliciously and libelously publishing certain statements in the June, September and November, 1958, issues of Strength & Health. The June, 1958 issue contained an editorial by Hoffman, "Birds of a Feather". In describing "birds of a feather which flock together," rats were described as associating with rats, skunks with skunks, jackals with jackals, and hyenas with hyenas. Referring to Weider, the editorial said: "In our own wonderful sport, we have a small Hitler, a small Stalin, one who is a master of all the despicable tactics imaginable." The editorial requests those who favor Weider to "flock" to Weider, and those who favor Hoffman to "flock" to Hoffman. It states that "Experience has proved that the Big Lie technique does not sell magazines. Weider knows that people will read his magazines to see what new (or usually time-worn and oft repeated) diatribe he has to offer." Weider is referred to as being money mad with a desire only to make money for himself. Readers are requested not to buy the Weider controlled magazines.

In the September, 1958 issue, in the letters-to-the-editor column, were letters commenting on the above editorial. These include statements such as "* * I would not wipe my nose on Weedy's rag * * *," "* * * I'm glad you finally did something about Weider.", "It might interest you to know that the character you mentioned in your editorial only gets talked about in our gym as an object for ridicule or as the butt of a joke.", and "Until I read your article, I felt as though I was the only one that considered Weider one of Hitler's gang."

In the November, 1958 issue, an article "Pal Joey," contains an exaggerated account of Weider's muscular prowess, and derisive reference (according to plaintiff) to Weider's interest in the physical culture line for physical culture sake and not for the sake of money, with a background of Weider as the king in a medieval castle surrounded by subjects and serfs.

Defendants denied the allegations of malicious libel and pleaded as affirmative defenses, truth, privilege or fair comment, consent, and other defenses which need not be detailed.

Defendant, Hoffman, also filed various counterclaims, including counts for the violation of the invasion of right of privacy, and for the monopolization of the physical culture business. These were abandoned during the trial. Two conspiracy counts remained. In the first, Hoffman alleged that through honesty and fairness he had built up a national and international reputation as a weight lifting and body building coach, instructor, writer and publisher, equipment manufacturer and health advisor, and that plaintiffs unlawfully and maliciously conspired and agreed to injure Hoffman in these endeavors, interests, enterprises and business, and to deprive him of his customers, readers and students, to defame his character by holding him up to contempt, and to subject him to great loss. The second is similar in that it dealt with a conspiracy by plaintiffs to injure Hoffman in his business and endeavors, but it is more specific in that it charged that the object of the conspiracy was to induce persons to cease contractual relationships with Hoffman, to discourage others from entering into business relationships with him, and to destroy the good will of his business. During the trial both counts were combined and treated as one count for a conspiracy to injure Hoffman in his business, reputation and endeavors.

The bases of the conspiracy were articles published in certain issues of Muscle Builder and Mr. America magazines.

In the February, 1957 issue of Muscle Builder, an open letter to the chairman of the A.A.U. weight lifting committee by a weight lifter accused Hoffman of "rigging" an A.A.U. sanctioned weight lifting contest and demanded that action be taken against Hoffman.

In the December, 1957 issue of Muscle Builder, an article, "People Who live in Glass Houses," attributed to Hoffman a charge that four popular physique magazines, two of which — Adonis and Body Beautiful — are controlled by Weider, pander to homosexuals through publication of nude and semi-nude photographs of body builders. The article then states that many body builders, including Hoffman and others who work for Hoffman, have so posed, and that for many years the Hoffman controlled magazine published such pictures. The article is illustrated with uncomplimentary cartoon-type drawings and photographs of Hoffman.

In the January, 1958 issue of Mr. America, an article, "Bob Hoffman's Strange Finances," accuses Hoffman of building up an image of philanthropy in his support of weight lifting, while doing so only for the purpose of making money. The article refers to details of an action against Hoffman for additional taxes based on various money-making schemes which Hoffman allegedly was able to put over under the guise of philanthropy in supporting the weight lifting sport and the A.A.U.'s participation therein. This article is also illustrated with an uncomplimentary cartoon-type drawing. The evidence showed that Weider directed the artist to depict Hoffman stealing money from the United States, and "Uncle Sam" mad at Hoffman throwing the money around to women of ill repute who are wearing mink coats, driving cars, and serving drinks to drunks. Weider directed the artist to show Hoffman "with bald head in shirtless sleves (sic), pot overlaping (sic) belt," stating that Hoffman is the great American benefactor because he spent all his money being such. The artist substantially complied with these instructions.

In the February, 1958 issue of Mr. America, in an article, "Portrait Of A `Medicine Man'," accompanied by an apparent editorial, "Exposing Bob Hoffman, No. 2 of A Series" and "Give It To Us Straight," there are similar attacks on Hoffman's philanthropy, the income tax action is mentioned, Hoffman is described as a bully, the Hoffman products are ridiculed, and a large part of the article is devoted to Hoffman's alleged preoccupation with sex. This article is also illustrated by uncomplimentary cartoon-type drawings.

In the March, 1958 issue of Mr. America, in an article, "The Hoffman Exposé" — "Hoffman's Calculated Scheme to Ruin Bodybuilding," Hoffman is described as one who "fixes" the results of body building contests to degrade those who are interested primarily in body building, rather than weight lifting, who do not use Hoffman's products or subscribe to his magazine, and who lean toward the products of Hoffman's competitors. The object of this, it is stated, is to destroy body building in favor of weight lifting.

In the libel action, the jury returned a verdict in favor of the defendants. In the conspiracy counterclaim the jury awarded Hoffman "$30,000 Punitive damages" against both Weider and Mr. America Publishing Co., Inc.

Plaintiffs assigned many reasons in support of their motion for a new trial in the libel action. In their brief and argument, however, they press only the reasons that the court erred in failing to properly instruct the jury on the law of libel per se, that the court erred in failing to grant plaintiffs' motion for a mistrial, and that the verdict was the result of passion and prejudice.

Plaintiffs contend that the words "* * * rat * * * it is debased, filthy * * *," "skunks," "jackals and hyenas * * * they eat carrion * *," "* * * small Hitler, a small Stalin * * *" are libelous per se, and argue that while the court in its instructions "skirted" the definition of "libel per se," it failed "to apply specific language which would indicate that such a legal proposition is in fact an element of the law." They take exception to the refusal of the court to charge their request for instruction number 2.

"2. Defendants Robert C. Hoffman and York Barbell Co., Inc. did publish and cause to be disseminated words such as skunk, hyena, rat and jackal, used to describe the plaintiffs, which on their face are clearly defamatory, must injure the reputation of the plaintiffs and are

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