# George T. Appleyard, III v. Transamerican Press, Inc., D/B/A Overdrive

> Court of Appeals for the Fourth Circuit · August 5, 1976 · 539 F.2d 1026

URL: https://www.frixlaw.com/law-library/cases/9462985

## Case

- **Full name:** George T. APPLEYARD, III, Appellee, v. TRANSAMERICAN PRESS, INC., D/B/A Overdrive, Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** August 5, 1976
- **Citations:** 539 F.2d 1026; 1976 U.S. App. LEXIS 7693
- **Precedential status:** Published
- **Opinion:** Concurrence by Butzner
- **Judges:** Haynsworth, Winter, Butzner
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BUTZNER, Circuit Judge
(concurring):
I concur in the court’s opinion, but I believe these additional remarks are warranted because of the instructions given by the district court to the jury on the issue of punitive damages.
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 , 94 S.Ct. 2997, 3011 , 41 L.Ed.2d 789 (1974), the Court held that a private citizen could recover punitive damages only when a publication was made with “knowledge of falsity or reckless disregard for the truth.” This, standard, at the very least, is applicable to the recovery of punitive damages by a public figure. See Eaton, The American *1031 61 Va.L.Rev. 1349, Law of Defamation, 1439-41 (1975).
The district court charged the jury in conformance with New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 726 , 11 L.Ed.2d 686 (1964), that compensatory damages could be awarded to a public figure only if the defamatory statement were made “with knowledge that it was false or with reckless disregard of whether it was false or not.” It did not, however, repeat this admonition in its instructions on punitive damages. Instead, it said in part that punitive damages could be awarded if the defamation were “carelessly published.” The court further emphasized that such damages were permissible if the defamatory publication were “intentional, malicious and with the purpose of injuring the Plaintiff.” These instructions erroneously departed from the proper standard because they allowed recovery of punitive damages without proof that the defendant knew the defamatory statements were false or that it made them with reckless disregard of their truth or falsity. Cf. Greenbelt Cooperative Publishing Ass’n. v. Bressler, 398 U.S. 6, 9-11 , 90 S.Ct. 1537 , 26 L.Ed.2d 6 (1970); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82 , 88 S.Ct. 197 , 19 L.Ed.2d 248 (1967).
Although the defendant objected to the submission of the issue of punitive damages to the jury, it did not comply with Rule 51 of the Federal Rules of Civil Procedure by objecting to the court’s test for the recovery of such damages. Most circuits have said that an appellate court may reverse for plain error where necessary to prevent a miscarriage of justice despite the defendant’s failure to comply with Rule 51. Edwards v. Mayes, 385 F.2d 369 , 373 n. 1 (4th Cir. 1967); 9 Wright and Miller, Federal Practice and Procedure § 2558 at 672 (1971). The protection of first amendment rights or the prevention of an improper award of punitive damages particularly justifies the application of the plain error rule. Williams v. City of New York, 508 F.2d 356, 362 (2d Cir. 1974); Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229 , 409 F.2d 1146 , 1164 n. 2, cert. denied, 396 U.S. 963 , 90 S.Ct. 434 , 24 L.Ed.2d 427 (1969).
In this case, however, upholding the award of punitive damages does not intrude on the defendant’s first amendment rights. For the reasons stated in Part III of the court’s opinion, I agree that the evidence shows that the defendant published the defamatory articles with knowledge that they were false or with reckless disregard of whether they were false or not. Since the award of punitive damages is supported by substantial evidence under the proper standard, we need not apply the plain error exception to Rule 51. Cf. Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82 , 88 S.Ct. 197 , 19 L.Ed.2d 248 (1967).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462985. Public record. Not legal advice.