stating “[t]he Texas cases are unanimous in holding that recovery of actual damages is prerequisite to receipt of exemplary damages.”
How later courts described this case
- stating “[t]he Texas cases are unanimous in holding that recovery of actual damages is prerequisite to receipt of exemplary damages.”
- holding that proof a prudent person would not have published or would have first investigated is insufficient
- holding reckless conduct not measured by whether a reasonably prudent person would have investigated before publishing
- reckless conduct is not measured by whether a reasonably prudent person would have investigated before publishing; and a plaintiff must show defendant entertained serious doubts as to the truth of the publication at the time of the publication
Written by the judges who cited it.
The opinion
KILGARLIN, Justice,
concurring and dissenting.
I concur with the majority opinion that there is no clear and convincing evidence of actual malice on the part of Doubleday. This publisher may have been negligent in failing to demand verification from author Katz but nothing in the record can support a conclusion that Doubleday’s actions reached the standard of conduct proscribed by New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). I, therefore, join in reversing the judgment of the court of appeals and rendering judgment that Dr. Rogers take nothing from Doubleday and Co., Inc.
However, I agree with that part of the dissent of Justice Ray that in a libel case such as this, actual damages are presumed, and, thus, exemplary damages are recoverable. That Westbrook Pegler’s printed diatribe about Quentin Reynolds was so outrageous and because by disbelief Reynolds’ excellent reputation remained untarnished, thereby leading to an award of only one dollar in actual damages, does not mean that $100,000 exemplary damages should not have been assessed against Pegler as punishment and a warning to others in the profession of journalism. To permit otherwise would mean that a defamer, motivated by actual malice, becomes the beneficiary of the unassailable reputation of the one he has defamed. Reynolds v. Pegler, 123 F.Supp. 36 (S.D.N.Y. 1954), aff'd, 223 F.2d 429 (2d Cir. 1955), cert. denied, 350 U.S. 846 , 76 S.Ct. 80 , 100 L.Ed. 754 (1955).
Thus, I would affirm the court of appeals’ rendition of judgment for Dr. Rogers against Harvey Katz.