# Appendix — Curtis Publishing Co. v. Butts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1967
- **Citation:** 388 U.S. 130

## Text

APPENDIX B.

| IX THR
UNITED STATES COURT OF APPEALS
For rae Frere Crecurr.

0 sadbch 21491.

_ CURTIS PUBLISHIN G COMPANY,
| Appellant-Appellee,
versus
“WALLACS BUTTS:
Appellee- Appellant.
(Ap REVERSE Trriz)

Arras, Prox rix Usrri Stare Dumwor Oovar ron ran 4
| Norrzzey District or @zoncr. )

(Jaly 16, 1 16, 1965.)

Before Rives and Brown, Circuit — and d Srzans Dis-
trict Judge. -

_’ . Sprans, District Judge: This: is a libel eat. Cartis
Publishing Company’ published an article in the March
23, 1963 issue of the Saturday Evening Post ? entitled ‘‘The
Story of a College Football Fix’’, characterized by the Post

1. Hereiaal® sqfered to on citer “Cet . “defendant” or °
_ the “Post”, fr. .

2. Also referred to herein as the “Post”. |
(5a)

6a | - Appendia B
in the sub-title as ‘‘A Shocking Report of How Wally Butts :

.. . and ‘Bear’ Bryant Rigged a Game Last Fall.’’

t

Daw

On March 25, 1963, Wally Butts, former Athletic Di-
rector of the University of Georgia, instituted this action
against Curtis. In August, 1963, the case was heard be-
fore a jury, which returned a verdict against Curtis for
$60,000 general and $3,000,000 punitive damages. Con- |
ditioned upon the failure of Butts to remit that portion .
of the award for punitive damages in excess of $400,000,

the trial court granted Curtis’ motion for new trial. At
the same time, Curtis’ motion for judgment notwithstand-.

- ing the verdict was denied. On January 22, 1964, after .

Butts had filed a remittitur, Curtis’ motion for new trial
was denied, and judgment for Butts in the amount of
$460,000 was entered. Thereafter, Curtis filed motions for
new trial under Rule 60(b), F. R. Civ. P., which were denied —
on April 7, 1964. This appeal is taken from the judgment
of January 22, 1964, and from the trial court’s denial of
Curtis’ motions for judgment ae emma the verdict .
and for new trial. We affirm.

Curtis publishes various magazines including the Post.
Prior to the publication of the story in question, the editor-
in-chief, undoubtedly hoping to attract more readers, had
decided to ‘‘change the image”’ of the magazine by making |
it an: ‘‘expose’’ type, and embarking upon a policy of
‘sophisticated muckraking’’, in order ‘‘to. provoke people’”:

and ‘‘make them mad’’.*

The article ° involved was based upon a claim by one
George Burnett that on September 13, 1962 he had acci- .

3. Sometimes hereinafter referred to as “Butts” or “plaintiff”.

+ See note 25, infra. ¢

5. The following editorial comment was, inserted at the begin-
ning of the story:

“Not since the Chicago White Sox threw the 1919 World Series

fae ee bows 0. pare stiry oa Sa as this one. This is the

ae odant of college fepthall

.

Y

i" PR SRR OPE TNTL MS HEN ME = Saeed RT We Re

SOUR 2

Appendic Bo s—(“tsi*S

dentally overheard, and made notes of, a long-distance
telephone conversation between Butts and “Bear”? Bryant,
football coach at the University of Alabama, in which
Butts divulged certain information about football plays.
the University of Georgia would use in its opening game
' against Alabama. Georgia was subsequently defeated 35-0.
_ About four months after the alleged telephone conver-

' . sation Burnett contacted various people, including Georgia

football coach Johnny Griffith, and then decided to tell his
story to the Post. A writer, Frank Graham, Jr., was as-
signed by the Post to investigate and write the story, and
an Atlanta sports editor was retained to advise him.
Graham never saw ‘Burnett’s notes, as they were at the
time in the possession of Georgia school officials; he did
not. interview a witness known by him to have allegedly
discussed the notes with Burnett on the same day the tele-
phone conversation purportedly took place ; he never viewed
the game films; and neither he nor anyone else on behalf
of the Post ever contacted Butts or Bryant. He “agreed

62 "
“Before the University: of Georgia yed the University of
Alabama last September 2, Wally on athletic director of ©
- , _ Georgia, gave Paul (Bear) Bryant, head coach of Alabama,
_. Georgia’s plays, defensive patterns, all the significant secrets -
Georgia’s football team possessed.
“The corrupt here were not professional ballplayers gone wrong,
as in the 1919 Black Sox scandal. The corrupt were not dis- .
reputable gamblers, as in the scandals continually afflicting college
basketball. The corrupt were two men—Butts and Bryant—
‘ employed to educate and to guide young men. *
“How prevalent is the fixing of college football games? How
1 often do teachers sell out their pupils? We don’t know—yet.
For now we éan only be appalled—_THE EDITORS.” — * As
In the story itself it is stated, among other things, that §(t)he Georgia .
players, their moves analyzed and. forecast ‘like those of rats in a
maze, took a frightful physical beating”. Georgia coach Johnny
Griffith was quoted as saying bitterly to a frien » “I never had a
chance.” The next sentence read: “When a fixer works against you;
that’s the way he likes it.”

i

7 ON tes

fa. a anes B

| that both he and ‘Curtis a publication of the article

‘*would ruin Coach Bubgs’ career’’.
-On March 11, 1963, eleven days before the inti was

_ published, Curtis was informed by telegram and letter, both -

sent by Butts* counsel, of Ahe_‘‘absolute falsity of the
charges’? contained in the proposed story. The record does
not disclose that any. additional investigation was initiated,
and the telegram and letter went unanswered. \ In addi-
tion, a long-distance telephone appeal that the article not
_ be published, made by Butts’ daughter prior to publication,

was rejected. After the article was published, Curtis re-.

fused a demand that it publish 4 retraction.

The Post took the position from ti: beginning that the.

' statements made in the article coneerning Butts were true,

and that because of their nature it had exercised great _

care by thoroughly checking every significant source of
information as to their a and rota ‘in ad-
vance of publication.

Curtis chose not to use as a witesiis either the author of
the article or any of its editors who had made contribu-

tions to the article after it had been submitted.. Nor did ~’

it use the Atlanta sports editor who had assisted in the
preparation of the story. As one of its principal witnesses
it.called upon George Burnett, who was known by Curtis
to have been convicted of writing bad checks and to be
- on probation at the time he claimed to have listened in on
the conversation. -

Both Butts and Bryant testified. - Each emphhtically
denied the charges contained in the article and stated that

there was never any conversation between them having .

as its purpose the fixing or rigging of any football game.
Several football players, past and present, expressed their
opinions to the effect that the outcome of ‘a football game

| . cannot be rigged « or fixed without ee by the

>

Appendiz B 9a

. players themselves, and that there is no way in which two

coaches can rig or fix the outcome of a footbgll game with-
. out ‘the players’ knowledge. Other ‘‘experts’’ stated their
opinion that the information cgntained in the ‘so-called’?
- Burnett notes would not be of any assistance at all to the
_ University of Alabama in preparing for its game -with’ the
University of Georgia. In several instances Butts’ wit-
nesses denied direct ance attributed to them in -
article.

In an opinion written by the district judge the facts a: are,”
stated in some detail,* and no useful purpose could be
served by repeating them. here, although portions thereof
pértinent to specific issues later discussed may be utilized..
It is significant, however, at this poirit, to say that in yiew
of the. verdict it.rendered, the’ jury undoubtedly accepted

utts’ version that the’Story was ‘‘willfulty, maliciously
and falsely?’ published, as a result of which’ he has suf-
. fered substantial injury to his **peace, happiness and feel-
ings’’, as well as to his ‘‘honor, reputation and integrity’’.
As the trial-judge saw it: ‘‘The article was clearly defama-
tory and extremely so. . . . The guilt of the defendant —
was so clearly established by the evidence in the case so
as to have léft the jury no choice but to find the defendant
liable.’ We wholeheartedly agree with that appraisal,

Curtis submits twenty-eight specifications of error
which are argued in its brief under ten. ‘propositions. ‘The
issues involved are: (1) Was the article libelous per se?

(2) Does the court’s judgment violate Curtis’ rights under |

the First, Fifth and Fourteenth Amendments? (3) Did the.

a Cm v. Curtis Publishing Co, (N. D. Ga. 1964), 225 F.

ned Id. at 919. eee

10a | : Ms Appendic B-

; eiiiaiavits of Butts’ ' counsel, ‘not chisel to at the trial,

» require a new trial? (4) Did the court-err in excluding

certain testimony offered to impeach the credibility of Butts _
and the witness John Carmichael? (5) Were the extra-

judicialsstatements of George ‘Burnett, and the statements — |

made to him by-third person, properly excluded? (6) Did
the trial court: commit plain error in instructing the jury?
(A Did the trial court err in refusing to charge the jury
_ that it should construe Butts’ testimony ‘‘most strongly

against him’’? (8) Did the trial court: err in refusing to

charge the jury that it should disregard the entire tes-
timony of any witness whém it found to have knowingly
and wilfully testified falsely? (9) Does the ‘‘newly dis-

covered evidence’’ offered in Curtis’ motion under Rule.

60(b), F. R. Civ. P. require a new trial? (10) Is the award
of punitive damages so excessive that it cannot be cured by
the remittitur? 3

THE ARTICLE as LIBELOUS PER Sz.

The trial judge charged the jury that the article was

libelous per se. This was objected ‘to by Curtis on the ~

ground that Butts was not actively engaged in.the pro-
fession of a football coach at the time of publication, and,
that no special damage was shown.® “Curtis took the same
position in its motions for directed: verdict and for judg-
ment notwithstanding the verdict. ~

Curtis’ contention in this regard cannot. be sustained. -
This is a libel suit as distinguished from a slander suit.

8. In support of this proposition, Curtis cites—Weatherbolt v.
age 143 Ga. 41, 84 S. E. 119 (1915) ; Van Ep ones, 50°

Ga, 238 (1873); Mell v. Edge, 68 Ga. App. 314, 22 S. E- 2d 738
(ose Ha rd v. Shaw, 100 Ga. App. 813, 112 S. E. 2d 286°

1959) ; and Estes v. Sterchi Bros. Stores, 50 Ga. App. 619, 179

S.E. 222 (1938). These cases, however; appear to be “delinquent
debtor cages” referred to in note.11, infra.

9. Ga. Code Afin. § 105-701. (libel) , § 105-702 (slander).

A

RE AeA RT CRD nn NR bo Me SONI TI 9 wrote —

‘ee. ° mem. ; atari

Appendia B . lla

Under Georgig?law, a plaintiff may recover in a libel action
where the defamation is apparent from the writing itself,

_ . without the necessity of alleging or proving special dam-
a oa - ages,’ and it is not necessary that he be engaged in the.
rsuitof his trade, business or profession at the time of
publication’* ~—- - ‘= wae eae

. 10. Floyd v. Atlanta, Newspapers, Inc., 102 Ga. App. 840; 117

S. E. 2d 906 (1960), the leading case-in Georgia, states that words

which, if merely spoken, would not be actionable in absence of special

° damagé, may be libelous when printed if false and.tend to injure

| reputation and bring one into public hatred, contempt or*Tidicule.
hs a only general damages need be alleged in an action for

= Code Ann. § 105-708 and § 105-1801; Baldwin v.
Davis, 188 Ga. 587, 590, 4 S. E. 2d 458 (1939). .

!

Appendia Bo 188
plied.) Without regard to any question as to whether the
plea constitutes an admission that the remarks were made

with malice, it is our view that it necessarily carries with
it an admission, not only that the libelous statements were

_made by Curtis, but also ‘that they were made in relation

to Butts ‘‘as,a member of the football coaching profes-
‘sion’. Under all the circumstances, it is untenable to say
that simply because Butts was temporarily out of a job at
the time of publication, he was not actively engaged in the
coaching business as a means of livelihood.”
We hold that the trial court correctly charged the j jury
that the article was/libelous per se, and that he did not err

"im denying Curtis’ motions for a directed verdict and for

— notwithstanding the verdict.

Curtis’ Comaturonesial, Ricuts.

Curtis contends that the trial court’s judgment violates
and abridges its rights of freedom of speech and of the ~
press guaranteed by the First, Fifth and Fourteenth

» Amendments to the Constitution of the United States. It
_ relies upon the case of New York.Times Company v. Sul-

livan, 376 U. 8. 254, 84 Sup. Ct. 710, 11 L. Ed. 2d 686 (1964),
decided. sybsequent to the trial of this case, in which it was

| : “held that in order for a public official in a- libel’ suit to re-

cover any damages he must prove that a statement against
his official conduct was published ‘‘with actual malice—
that is knowledge that it was false or with reckless disre-
gard of whether it was falge or not’’. 376 U.S. at 279-80.

13. In the Missouri case of Clark v. McBaine, 299 Mo. 77, 252

S. W. 428 (1923), at 432,.cited by Curtis, the Court stated that

though’the plaintiff “had been removed as a member of the faculty,

his profession, or means of a livelihood, was still that of a

professor of law, and a writer of textbooks upon the law, and the

gist of his damages . . . consisted of injury-done to his standing as
a professor and writer of law.” - ‘

” 5 - ee oe ONT 6 OR ee pes

Ha . . Appendiz B
‘This holding, says Curtis, “ drastically changed the consti- ¢
tutional principles applicable to libel actions’’, by announc-
ing new safeguards which ‘‘make it manifestly clear not
only that the rules of law which were applied in the trial of
the instant case were unconstitutional, but also that the,
result reached by the jury is a patently unconstitutional
"result which cannot be permitted to stand.” i
Countering this, Butts says that the invocation of the -
constitutional defenses in libel cases has received emphatic
and substantial attention by scholars and Courts over the
years; that the Times case resulted in no fundamental :
change of law, but merely gave new sanctions to a long
_ standing rule; and that in any event, Curtis did not invoke
those defenses even though they are more broadly stated
in the Georgia law than ‘in the Times case.'* Moreover,
Butts emphasizes that the Times’ constitutional grounds
_now asserted were not timely raised or preserved below. |
In fact, they were presented for the first time in the F. R.
Civ. P. 60(b) motion filed on March 23, 1964, long after
, trial. ; - e ys : ; “.
14. In support of his position, Butts cites: “Justice Black and
First Amendment ‘Absolutes’; A Public Interview,” 37 N. Y. U. L.
Rev. 349 (1962) ; C. L. Black, Jr., “Mr. Justice Black, the Supreme
Court, and the Bill of Rights,” Harpers, February, 1961, .p. 63; .
Caldwell v. Crowell-Collier Pub..Co., (Sth Cir. 1947), 161 F. 2d 333;
Sweeney v. Schenectady Union Pub. Co., (2d Cir. 1941), 122 F. 2d
288, aff’d 316 U. S..642. (1942) ; Henry v. Collins, 158 So. 2d 28
, (Miss. 1963) ; Louisiana v. Garrison, 244 La. 787, 154 So. 2d 400
(1963) ; Louisiana v. Moity, 245 La. 546, 159 So. 2d 149 (1963) ; and
other pre-Times defamation cases. He points out that the Supreme
Court in Times recognizes that “a like rule” has existed for a number
of years in some state courts; that the Kansas Supreme Court, .in
_- Kennedy v. Mid-Continent Telecasting, Inc.,.193 Kans. 544,. 394
P: 2d 400 (Kan. 1964), noted that the Times decision requires no
change in the law; that the trial court said (note 23, infra) that
Georgia. provides this “like rule” -by a statute granting a qualified
privilege for “comments upon the gcts of public men in. their public
~ ry and with reference thereto”, citing Ga. Code Ann. § 105-
19(6) ; and that a can be lost by proof‘of actual malice, citing .'
Ga. Code Ann. § 105-710. — . )

J

'

| » Appendia B : 15a

The record feflects that Curtis did not object to the
trial court’s instructions.’* The Times case was decided by
the Alabama Supreme Court on August 30, 1962. A peti-
tion for writ of certiorari presenting constitutional ques-
tions identical to those now being urged by Curtis, was filed —
in the United States Supreme Court on November 21, 1962,
four months prior to the filing of the complaint in. this
case on March 25, 1963.°° Certiorari was granted in the
Times case on January 7, 1963. The jury verdict in the
instant case was returned on August 20, 1963, and the trial
court’s judgment thereon was entered the same day. A
Birmingham, Alabama law firm, which represented the New
York Times’ in the case brought against it by Sullivan, ~
also, together with Curtis? General Counsel, represented
‘Curtis in a libel suit Coach Bryant had filed against it in
the United States District Court at Birmingham, Alabama.
A member of this law firm had sent information to Curtis
about’ the alleged telephone-conversation between Butts
and Bryant, and had talked with the author, Graham, about
the.matter prior to publication of the story. The same
lawyer, together with another member of ‘the firm, sat (as
did the General Counsel for Curtis) at Curtis’ Counsel
table throughout the trial of this case." oh

15. See Rule 51, F. R. Civ. P. Also see note 36, infra.
16. We have examined the petition for writ of certiorari pre-—~—

+ senting the constitutional questions, and find that it was filed by the

New York Times Company on November 21, 1962. The brief for
respondent in opposition was filed on December 15, 1962, and peti-
tioner’s reply thereto was filed on December 29, 1962: - ¥:
17. The Birmingham law firm of Beddow, Embry and Beddow,
which represented the New York Times in the Supreme Court of /.
Alabama, is also shown to be counsel for the Times.in the Supreme '

-. Court of ‘the United States. Mr. Roderick Beddow of that firm

SE ee, Seer ts Site anes
¥

represented Curtis in the case of Paul Bryant v. Curtis Publishing
Company, in the United States District Court in Birmingham, and
_ both he and Mr. T. Eric Embry ‘of that firm sat, along with the: .
General Counsel of Curtis,‘Mr. Philip H. Strubing, at the Curtis
counsel table throughout the trial of ,this-case. Butts’ brief states, .

- - * : - - scream egg w . cement’ - resrene

. 16a | Appendiz B

| While it is true that the Supreme Court did not decide
the Times case until March 9, 1964, it would be contrary
to reason and common sense to assume that there had not

-. been, at all times during the pendency of this case, full

communication among Curtis’ co coungel, particularly - con-

‘: eerning trial strategy.. The facts more than justify our :

conclusion that Curtis was fully aware when this suit was
instituted, and certainly no later than the beginning of

trial, that the constitutional questions it now argues had ~

been: for some time, and were still being, vigorously as-

~ gerted in Times.
The Supreme Court said, in Michel v. Louisiana, 350°

U. S. 91, 99, 100 L. ed. 83, 76 S. Ct. 158 (1955), that ‘‘(t)he
test (in making a claim to a constitutional right) is whether
‘the deféndant has had ‘a reasonable opportunity to have
the issue as to the claimed right heard and determined by
the .-. . court.’’’ It then cited the case of Yakus v.
United. States, 321 U. S. 414, 444, 88 L. ed. 834, 64 S. Ct. 660
(1944), for the proposition that ‘‘(n)o procedural principle
is more familiar to this court than that a constitutional

- right may be forfeited, . . . by the failure to make timely -

-- assertion of the right.’’"*
" without contradiction, that Mr. Beddow “initially ‘sent them (Curtis)

this information’ about the alleged telephone convérsation and was & ~

principal in the initial work of the author Frank Graham.”
18. of Vite oh fa res tye S. 91, 76 S. Ct. 158, 100

and that since the petitioners had not, under that statute, made

they waived any such right to so c the Grand Jury. The court

announced that the test was whether defendant had had-a rea-
ity to have the issue as to the claimed right hsard

. and determined by the court.

Cerny ss yoo! Reece v. State of Georgia, 350

time as the Michel case, the state court had refused to consider the

é

, 76 S, Ct. 167, 100 L. ed. 77 (1955); decided at the same

« ° Appendia B >” 1a:

It cannot be said that this case falls within the category
of those cases cited by Curtis ® which hold that if subse-
quent to a trial or hearing, but before a final decision by the
trial or appellate court, the fundamental law is ®hanged,
it is the duty of the court to apply the law as amended.
Those were ‘‘exceptional eases’’, where there was nc
‘waiver and thé*court was satisfied that to do otherwis
would result in a ‘plain miscarriage of justice’’. In ts
case; however, even if it is assumed that the basic lawhhas

defendant’s motiori to quash the indictment filed before his aign-
ment.on the ground of the composition of. the Grand Juryf because,
by Georgia practice, objections to’the Grand Jury must bé made be-
fore the indictment is returned. The court held that thre had been
no waiver there, and that due process had been vigfated, because
defendant, a semi-illiterate Negro, had no counsel upfil. the day after
his indictment, pointing out that “the right to object ‘presupposes an
opportunity to exercise that right.” __ PP
In Kewanee Oil and Gas Co. v. Mosshamer, ¢40th Cir. 1932),
58 F. 2d 711, where the constitutionality of a state statute was raised
on appeal, the court stated that “if the constitutionality of a statute
mde raised in the pleadings ordinarily it may not be raised at the
Other cases decided by district courts, and holding that constitu-
tional questions ordinarily must be raised at the trial, are: Alexander
v. Daugherty (D. C. Wyo. 1960), 189 F. Supp. 956 (only where
failure to raise the constitutional question at. the trial was due to
. ignorance, duress or other reason for which petitioner could not be

held responsible, may redress be had, and then if “it is made to appear ~*
that there. had been such gross violatjén of constitutional right as to -

deny the defendant the substance of/a fair trial”) ; Houck v. East-
‘chester P. U. District (D.C. Alaska 1952), 104 F. 2° 588; Mount
'Tivy Winery v. Lewis (N. D. Cal. 1942), 42 F. Supp. 636; and

. White Cleaners and Dyers v. Hughes (W. D. La. 1934), 7 F. Supp.

1017.

i9.. Ziffrin, Inc: v. United States, 318 U.S. 73, 87 L. ed. 621,
63 S: Ct. 465 (1943); United States .v. Schooner Peggy, 5 U.S. (1
Cranch) 103, 2 L. ed. 49 Ui?) ; and Hormel v. Helvering, 312
U. S. 552, 85 L. ed. 1037, 61 S. Ct. 719 (1941), an unusual case in

which the Supreme Court\sllowed the Tax Commissioner to assert -

for the first time on appeal in the Court of Appeals the taxability
of income under angther section of the code, but stated thet “ordinarily
an appellate court does not give consideration to issue not raised
below ... . (but) there may be exceptional cases wh... injustice
may otherwise result except where express waiver is given.”

oS ‘ . * .

Fw

18a ' Appendix B os

been changed, the situation is quite-different. For what-
ever tactical or other reason™ Curtis sat back and failed
to carry the constitutional torch before verdict and judg-
ment, the fact remains that it was charged with knowledge,
through its interlocking battery of able and distinguished
attorneys, of the issues involved in the Times case, and
was afforded eyery reasonable opportunity to have those
same issues heard and determined by the trial court in
_ the case at bar. “What the Supreme-Court would, or might,
hold in Times was not decisive. What was important was
that Curtis had to invoke any constitutional claims in an
appropriate way, and at an appropriate time. Consider-
ing the resources of Curtis, both practical and legal, and —
the contemporary awareness of constitutional rights per-
vading even problems of local jurisprudence Curtis’ com-
plete and utter silence amounted to ‘‘an intentional re-
linquishment or abandonment of a. known right or
privilege.’’ 21 . |
_ . Without expressing any opinion as to whether Times
fundamentally changed the substantive law applicable to
libel cases, or whether the charge on malice given -by. the
trial court was adequate under Times,” or whether Butts
20. Butts thinks it can be inferred that “defendant never con-
_ sidered plaintiff to be in any class of ‘public men’ so as to: make the
defense available.” ake g ahi
: ‘21. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. ed.
461 (1938). ~ es
22. The trial court’s charge on malice was, in part, as follows:

‘. “At this point, I think it is well that I should explain to you the - -

meaning of malice under the law of defamation. Malice, in the law of
defamation, may be used in two senses. First, in a special or technical
sense to denote absence of lawful excuse or to indicate absence of
privileged occasion. Such malice is known as implied malice or malice
in law. There is no imputation of ill will to injure with implied
* malice. . Secondly, malice involving intent of mind and heart or ill will
against a person is classified as expfess malice or malice im fact. . .

“Where it is established that the defendant was inspired by actual
malice in the publication of the defamatory matter, the jury, in its

. defen

Appendia Bo» «4p

was the kind of ‘public official’? contemplated by Times,”

or whether ’a reversal might otherwise be required if the

discretion, may, but: is not required, to award punitive damages. As
previously stated to you,sactual malice encompasses the notion of ill

‘will, spite, hatred, and an intent to injure one. Malice also denotes a

wanto: or reckless indifference or cu pable negligence with regard to
the — of others. The purpose of-punitive damages is to deter the

nt from a repetition of the offense and is a.warning to others
not to commit a like offense. It is interftled to protect the community
and‘ hasan expression of ethical indignation, although the plaintiff
receives the award. .The plaintiff charges. that the column was written

_ and published -both with actual ‘malice and in utter and wanton dis-

regard of his rights . . . .” :

* 23. Ina second opinion dated April 7, 1964 (See Butts v. Curtis
Publishing Company (N. D. Ga. 1964) ces Be OMDB. 50005 Ot cee),
denying Curtis’ motions under Rule 60(b), the trial judge gave the
following as his views concerning Butts’ status as a “public official” :

“In. the present motion at hand, the defendant contends that’

plaintiff's action comes under the Times ruling in that plaintiff was a

public official, and that the verdict and judgment was awarded plaintiff
as damages for injury to his tation as a football coach on account -
of a publication made by. the defendant concerning plaintiff’s actions
while acting as ‘Director of Athletics:at the University of Georgia. In

'.the trial of the case, movant defended the action by entering a plea .
_ Of justification, and no defense was made or evidence introduced con-

cerning Butts’ position. as Athletic Direétor or as a public official.
Georgia law providés under cértain conditions communications con-
cerning the acts of public men in their public capacity and reference
therewith to be deemed privileged. ae Code Annotated, Section’
105-107(6). Just where in the ranks o government employees the
‘public official’ designation extends, the — Court in the Times
case did not determine. The decision did determine that Sullivan, as
an elected city commissioner of Montgomery, fitted into the category —
of public officials. aaa :

“Under Georgia law, members. of the Board of Regents. of the
University System-are public officials. Georgia Sessions Laws,- 1931,
Pages 7, 45. _ The @vidence presented at the trial shows that plaintiff
was Director of Athletics at the University for some two years prior

* to February, 1963, at which time he resigned. - The article complained

of was published in the defendant’s issue of March 23, 1963. The
Board of Regents at both the University of Georgia (located ‘in
Athens) and the Georgia School of Technology (located in Atlanta)

control the athletic programs of tH@ two institutions, but the details are
handled at each institution by an athletic association composed of

~ faculty members and alumni, and each is incorporated'to facilitate such

business transactions.as improvement of athletic grounds and equip-

20a Appendia Bo| |
constitutional issues had been timely presented, we hold

that Curtis has clearly waived any right it may have had >

ment at the two institutions. The schedule of athletic contests for each ©

year is approved by the faculty and by the Regents. The separate
athletic associations at both institutions are wholly under the control
of the Regents and are their ts. . For further details of the athletic
setup, see Page v. Regents of University System of Georgia; 93-F. 2d
887, 894-892. - As was stated in the Page casg, the ‘coaches’ are also
members of the faculty. . ; '

“Plaintiff Butts was Direétor of Athletics at the University. The |

Athletic Director, along with the various coaches in the Athletic De-

partment, were employed by the separate incorporated athletic associa-'
. tion. However, defendant-seeks by this motion to extend the

category of ‘public officials’ to one employed’as agent by the University
of ia: Athletic Department. Even if plaintiff was a professor or
instructor at the. University, and not an agent of a separate govern-
mental corporation carrying on ‘a business comparable in all essentials
to those usually conducted by private owners’ he would not be a public
officer or official. Under Genet law, the position of a teacher or
instrdctor in a state or public educational institution is-not that of a
public officer or official, but he is merely an employee thereof. Regerits
of the University System of Georgia v. Blanion, 49 Ga.-App. 602(4) ;
“Board of Education of Doerun v. Bacon, 22 Ga. App. 72. To hold
plaintiff, an employee of the University Athletic Association, a public

official. would, in this court’s opinion, be extending the ‘public official’.

a tion nd that contemplated by the ruling in the case of New
York Times Company v. Sullivan, supra.” a
See also: Martin v. Smith, 239 Wis. 314, 1 N. W. 2d 163, 140

The case of Barr v. Matteo, 360 U. S. 564, 3 L. ed. 2d 1434, 79.

S. Ct. 1335 (1959), cited in the Times case, held that in the reciprocal
situation where two government employees were suing the director of
an important United Statés Government agency for his alleged libelous
conduct, the director, a public official, has absolute privilege, regardless
_of the existence of malice, in defense of the alleged libel, although his
cohduct was within the outer perimeter of his line of duty. The policy
of this position is to aid in the’effective fungtioning of government by
assuring that government officials shall be-free to-exercise their duties
without, fear of damage suits with respect to acts done in the course
of those duties. ae . .
In cases decided since the Times case, the “public official” desig-
nation has not been extended. The court, in the case of Garrison v.
- Louisiana, 379 U. S. 64, 13 L. ed. 2d 125, 85 S. Ct. 209, (Nov. 1964),
jn reversing the conviction of the New OrleanseParish District At-
torney for the criminal defamation of eight ju of the Criminal

District Court ofthe Parish of New Orleans, stated that “the rule.
protects . . was by itself |

25.-In the deposition of Clay D. Blair, Jr., editor-in-chief, it was
developed that for the first quatter of 1963, Curtis showed a doss of
‘about $1.1 million, compared to a loss in 1962 for the same quarter of
$4.7 million; that in 1960 the amount of. advertising revenue was
$106 million ; that in 1961 the figure had dropped to $86 million; that
Blair was made a vice-president of Curtis in- June of 1962; that cir-
- culation ‘is one of the factors that affects advertising revenues; that
demography is important, because, “all circulation in Russia would not -
.be appealing to General Motors ;” that Blair wrote a memo to his
staff, which found its way to a national magazine, in‘which he was
quoted as saying: “The-final yardstick is the fact that we have about
six lawsuits pending, meaning that we are hitting them where it hurts,
with solid, meaningful journalism”; that he was not being facetious
when he used the phrase “sophisticated muckraking” ; that he meant
it when he said it and when he testified ; that he. was correctly quoted © .
as being “concerned with the image of the Post and in trying to get a
.hew image, portray a different type of magazine”; that he did change
the image of the Post; that the Butts issue was representative of the _
new type magazine Curtis was interested in publishing ; that “we have
perhaps come . . . 25 per cent of the way with this issue . - .
, toward the goal of the magazine that I envision” ; that this issue is a
step in the right direction; that he was acquainted with the term
“muckraking” prior to using it in the interview which led to an article
in Newsweek on November 19, 1962; that in the interview with N ews-

eo .

_ more than enough to inflame’ the jury. Counsel for Butts
could only. gild the lily.”

THE Exc.usion OF TESTIMONY.

Butts was asked by Curtis’ counsel on cross-examina-’
. tion if he recalled having made a statement over television,
on a date prior to the institution of this action, that he
‘¢would never at any time and never . . . (had) done any-
thing that would injure the University of Georgia’’.. He
responded that he had made a statement to that effect, but.
that ‘‘as far as my services at the University of Georgia are
concerned that represents-only my opinion”’. Proferred
evidence which Curtis asserts ‘‘is replete with incidences
of Butts’ unfaithfulness and 4 disloyalty to the University
. of Georgia’’, was excluded by the trial court. Curtis in-—
sists, however, that the-¢vidence should have been ad-
mitted, not only to demonstrate Butts’ true character, but
to impeach his credibitity as a witness.

week he stated that he intended to “restore the crusading spirit . . .
the sophisticated muckraking, the expose in the-mass magazines - . .
to provoke people, make them mad”; that he further stated in the
interview : “But careers will be ruined, that is sure”, and he could not
quarrel with the fact that Butts’ career was one of the careers toswhich
reference was made in that statement. :

-26. The trial court also pointed out that Butts was unquestionably
one of the leading figures in the national football picture ; that respon-
sible officials of the Post knew that after the article was published
Butts’ career would be ruined; that Butts, through his attorney, had
notified Curtis before publication that the article was false; that one
of Butts’ daughters had telephoned long distance to a Post official
with a plea that the article be withheld from publication ; and that after
pablo Butts had, pursuant to Georgia law, requested a retraction -
rom Curtis, which was refused. The court then commented that the
jury was warranted in concluding from all the facts in the case, includ-
ing “the persistent and continuing attitude of the officers and agents
of the defendant that there was a wanton or reckless indifference of
plaintiff's rights.” Supra note 6 at 919. |

he

OAS BIA Cae IS BEN ag

Se ee ee ee ee —

J seers “ miguasns

o/

Appendia B 85a

Weare in agreement with the trial court that proof of
Butis’ character could be made by reputation only, and
that particular acts of misconduct are irrelevant. a

The rule that ‘‘a party may be cross-examined to bring
out matters, even though they may be collateral, which
are inconsistent with the testimony given by him’’,” is not
applicable here. The answer given by Butts to the ques-

tion asked by Curtis’ counsel concerning a statement previ-

ously made out of court, was not such an affirmative pro-
fession of faithfulness and loyalty to the University of _
Georgia, made at the trial, as would open the door, fox the
purpose of impeachment, in -mitigation of damages, or .
otherwise, to the admission of alleged incidents of ‘‘ui-
faithfulness and disloyalty’ to that institution, either by .
cross-examination of Butts, or by: ‘direct evidence from
other witnesses. |

Complaint is. made that Curtis was not petiiditied =.
show that Butts had refused to answer certain questions in

- his deposition, and that evidence offered as to purportedly

false testimony given by Butts in his deposition was re- -
jected. Butts refusal to answer was on advice of counsel.
The answers sought were subsequently supplied, but Curtis
argues that because of the delay it was denied adequate
discovery and thereby _—_ valuable met in the prepara-

tion of its case’’.

The trial judge was clothéd with broad discretion in
controlling the extent of. direct and cross-examination,”
and we cannot say ,that he abused that discretion in ex-
Gluding the proffered evidence. |

27. Note 6, supra, at 921. f

28. 98 C. J. S. Witnesses, oe 3 Wigmore, Evidence (3d. ed.
1940), § 1006(2).

29. See Roberson v. United States, (5 Cir. 1957) 249 F. 2d 737;
Carpenter v. United States, (4 Cir. 1959) 264 F. 2d 565; Poliafico v.
United ‘rate (6 Cir. 1956) 237 F. 2d 97.

|

Ms

Jeroen enema aay neranriew ot was aster §

262 Appendia B

Similarly, we. do not think the trial court abused his. - i

.discretion_in refusing to admit evidence that the witness
Cocca while a minor in Ohio, had been convicted_
of petty larceny in 1933. The ruling was based upon lapse
of time.*° | | 2
. Curtis sought to introdyce into evidence certain extra-
judicial statements made by. George Burnett, and state-
ments made to him by third parties. These included in-
quiries ‘made by Burnett of the telephone operator ~-and
her replies thereto;*! a telephone conversation between

. Burnett and one Milton Flack, purportedly made imme-
diately after Burnett had overheard a telephone conversa-
tion between Butts and Bryant; * Burnett’s conversation
with one Bob Edwards about the notes he had taken; *
Burnett’s statements at meetings with officials of the Uni-
versity of Georgia; and statements of these university —
officials made in checking Burnett’s story at meetings with

30. Supra note 6, at 921. / 2 -

. 31. Curtis says this was off¢red only to show that a telephone
conversation between Butts and) Bryant had actually taken place.
Butts, however, contends no such limitation was placed on this
testimony. - / . .

32. Burnett testified that he had been trying to contact Milton
Flack by telephone when*he pose gen the alleged call between Butts
and Bryant, after which he says hé hung up the phone and_sat for
about twenty or thirty seconds before picking up the phone and again
calling Flack’s number. Curtis wanted to prove that Burnett asked
Flack: “Is Wally Butts in your office now Milt”, to which Flack is
supposed to have replied that Butts was at that time in his office
making a telephone call. The court allowed Burnett to state that he

_ Flack, but excluded as hearsay anything he might have said to
- Flack. © .

33. Bob Edwards was division manager of the company with
‘which Burnett was connected. Burnett testified that he had a con-

_ versation with Edwards on January: 4, 1963 about the notes he had
Ra taken on September 13, 1962. The court sustained an objection to

' the conversation itself on the ground that it-was hearsay. On cross-
examination, Burnett testified that he did not have his notes with him
when he first talked with Edwards on January 4, 1963, but did show
them to Edwards some two weeks later.

REE enc Py

Appendix B | o7a

him. All of these incidents had been: reported in the
article. = En . / ¢
It was, of.course, important from Curtis’ standpoint
that it show its good faith in publishing the article. The.
proffered evidence would have tended to show that these
statements as-set forth in the article had, in fact, been

‘made, and we think the trial court should have admitted

it for that limited purpose only. However, the full import

_ of most, if not all, of that evidence got before the jury in

some form before the trial was concluded. - |

. In any e¥ent, none of the testimony involved related to
the real ‘‘sting of the libel’’, and we do not consider that
substantial error was committed in its exclusion. Curtis

-had the burden to show more than nominal error to secure
reversal for rulings of evidence,** and this it has failed .. -

to do. a

| ‘Tur Jury InsrRvorions.
‘Complaint is made that the trial court committed plain
and prejudicial error in instructing the jury. No objettions
to any. instructions were made at the trial of the case.**

Rule 51, F. R. Civ. P., provides in part that: .- ;

‘*No party may assign as error the giving or the
failure to give an instructioh unless he objects thereto
before the jury retires to consider its verdict, stating

- distinctly the matter to which he objects and the
grounds of his objection. Opportunity shall be given
to make the objections out of the hearing of the jury.’”’ ©

34. Curtis contends that the investigation ‘conducted by the
officials of the University of Georgia would support Burnett’s cred-

Ability, because it demonstrated his willingness to cooperate, and to

have his story questioned.
35. Rule 61, F. R. Civ. P.; Jennings v. United States (3 -decided subsequent to New York
Limes Co.; the District Attorney for Orleans Parish, Louisi-

_ ana, was convicted of criminal libel for issuing a statement
. disparaging the judieial conduct of the eight judges of the
© Criminal District Cort. The Supreme Court’s decision,
which brought the District Attorney’s statement within
the purview of criticism of the official conduct of ‘‘public
officials’? and entitled to the benefit of the New York Times
Co. rule, did not hinge on whether the eight judges were
elected officials. No mention was made of how the judges
obtained their positions. Moreover, it is clear from the
Court’s statement in New York Times Co., quoted ‘above,
that the rule applies to “‘government employees.”’ The

question reserved by the- Court was “‘how far down into -

the lower ranks of. government employees the ‘public offi-
cial’ designation would extend. . . .’?¢ A precise for-
mula for designation of ‘‘public officials” for the purpose
of the New York Times rule was not attempted. Indeed,

4, Id. at 283, n. 23, ie
5. 379 U. S. 64 (1964): |

6. New York Times Co. v. Sullivan, 376 U. S. 254, 283, n.
_ 23- (emphasis supplied).

38a ay . Appendia B

it is clear from the background and reasons for the rule
that to fashion and apply a precise formula for designation
‘of ‘‘public officials’’ for the purpose of the New York Times
rule would be a formidable, if not impossible, task.’
| The first amendment secures freedom of expression
_ upon public questions. The constitutional safeguard, the
Supreme Court has. said, ‘‘was fashioned to assure un-
fettered interchange of ideas for the bringing about of
political and social changes desired by the people.’’* Simi-
larly, ‘‘[I]t is a*prized American privilege to speak one "8
mind, although not always with perfect good taste, on all
public institutions.’”’® Mr. Justice Brandeis has stated
that ‘‘those who won our independence believed . . . that
public discussion is a political duty; and that. this should
be a fundamental principle of the American govern-
ment.’?*° New York Times Co. v. Sullivan, 1964, 376 U: S.
254, 269-70. As was said in Garrison v. Louisiana, “the
First and Fourteenth Amendments embody our ‘profound
national commitment to the principle that debate ‘on public
issues should be uninhibited, robust, and wide-open, and
that-it may well include vehement, caustic, and sometimes
-unpleasantly sharp. attacks on government and public offi-
cials.’’ New York Times Co. v. Sullivan. . . .”? It was
against this background that the Supreme Court in New
York Times Co. stated that the newspaper advertisement,
which contained an inaccurate description of eventeoccur-
ring in Montgomery in connection sear rights

movement, was an expression of grievance and protest on

7. Cf. Burton v. Wilmington Parking Authority, 1961, 365 U. S.
715, 722 (state responsibility under the Equal Protection Clause).
8. Roth v. United States, 1957, 354 U. S.:476, 484.
9. Bridges v. California, 1941, 314 U. S. 252, 270.
*10. Whitney v. California, 274 U. S. 357, 375-76 (1927) (con-
curring opinion). _ ee ; .
11. 379 U. S. 64, 75 (1964).

| Appendix B 39a

one of the major public issues of our time and would seem
clearly to qualify for the. constitutional protection.”
It is therefore necessary to. examine the facts and

weigh the circumstances to determine whether the allegedly

defamed plaintiff.is involved in the ‘‘conduct of the public
business’’* to an extent which attains constitutional sig-.

‘ ‘nificance. — ,

The plaintiff held his position of Athletic Diréctor of
The University of Georgia by reason gf a contract with .
the Board of Regents of the University System of Georgia,

. which hired him as an employee. . [Brief for Appellee, p. ;

67.] The plaintiff supervised the scheduling and location
of games, planned and budget, attended to the addition of
new athletic facilities, supervised ticket sales and prepared
plans for band trips and performances. Moreover, he gen-
erally supervised ‘‘the entire athletic program of the
school.’”’ [R., pp. 654-55; Brief for Appellee, pp. 69-70.]
The education of youth in the State of Georgia is unques-
tionably a matter of public concern. By his position the
plaintiff is intricately involved with a significant public
issue, that is, the education of the youth who attend The .
University of Georgia—a public institution. According to
the Duke of Wellington, ‘The battle of Waterlod was ‘won

on the playing fields of Eton.’? The ever-increasing diffi-

culties to be faced by this nation require the utmost integ-
rity in the training of its youth. I think the plaintiff js .
**public official’’ as contemplated by the New York Times
Co.. decision. | .

_ The-article, which the defendant published under the ;
subtitle, ‘How Wally Butts and Bear Bryant Rigged a |
Game Last Fall,”’ concerned alleged information on
Georgia plays given by Wallace Butts to Coach Paul Bry-

12. See 376 U. S. at 271. ae
13. Garrison v. Louisiana, 1964, 379 U. S. 64, 73.

40a ey Appendia B

ant relating to the University of Alabama and the Univer-
sity of Georgia football game played in Birmingham in
September 1962. The article charged Wallace Butts with
being corrupt and with betraying his players. It charged
that the players were forced into the game like ‘‘rats in a’
maze’? and ‘‘took a frightful physical beating.’’ In an
italicized preface to the article, ‘‘The Editors’’ stated that
Wallace Butts and Coach Bryant were participants in the
greatest and most shocking sports scandal since that of the
Chicago White Sox in the 1919 World Series. In the same
preface, Wallace Butts was relegated to a status worse than
that of ‘‘disreggtable gamblers’’ and a corrupt person who,
employed to ‘‘educate and guide young men,’’ betrays or
sells out his pupils. [See R., pp. 88-89 (order granting
motion for new trial.) ] | oes

I think it clear that the defendant’s statements are ,

within urview of criticism of the official conduct of
public officials. As stated by the Supreme Court, ‘‘the
public-offici rule protects the paramount public interest
- in a free flow-of information to the people concerning |
public officials, their servants. To this end ‘anything which
might touch on an official’s fitness for office is relevant.
Few personal attributes are more germane to fitness for
office than dishonesty, malfeasance, or improper motiva-
_ tion, even though these characteristics may also — the
official’s private character."*
The district court charged the jury that general dam-
ages were recoverable absent proof of actual malice. The ©
plaintiff argues that even if the New York. Times rule is -
applicable, the district court’s failure to charge that malice
is a prerequisite for actual damages is harmless error since
the district court charged that actual malice was required |

14. Garrison v. Louisiana, 1964, 379 U. S. 64, 76-77.

Appendie B as — 4la

for an award of punitive damages and the jury awarded
punitive damages. I do not agree that the district court’s
charge complies with the New York Times' rule.
In dealing with the question of punitive damages, the
district court charged the jury:

_ **Where it is established that the defendant was
inspired by actual malice in the publication of the
defamatory matter, the jury, in its discretion, may,
but is not required, to award punitive damages. As
previously stated to you, ‘actual malice encompasses
the notion of ill will, spite, hatred and an intent to
injure one. Malice also denotes a wanton or reckless
indifference or culpable. negligence with regard to the
rights of others:’’ [R., pp. 1356] _ (Emphasis sup-
plied.) ,

I think it clear that the district court’s charge does not
embrace the New York Times Co. definition of actual
malice, which is with knowledge that the statement was
false or with reckless disregard of whether it was false -
or not. The New York Times rule emphasizes ‘‘the know-
ingly false statement and the false statement made with
reckless disregard of the truth,’’* and not merely intent
to injure the individual or negligent disregard of the
rights of others. The necessary requisite to a showing of
actual malice under the New York Times standard is proof
that ‘‘the lie . . . [is] knowingly and deliberately pub-
lished about a public official’’ or published ‘‘with reckless
_ disregard of the truth.””* wa
Since the jury might well have understood the district
court’s charge to allow recovery on a showing of intent to
inflict harm or even the culpably negligent infliction of

15. Id. at 75 (emphasis supplied).
16. Ibid. .

eae paaensnsteittaisthiatcim dis ep

42a — Appendix B

harm, rather than intent to inflict harm through falsehood,

the charge does not comply with the New. Y ork Times
standard." - ‘ .

The majority of this Court have held that the defend-

ant ‘‘has clearly waived any right it may have had to chal-

lenge the verdict and judgment on any of the constitutional

grounds asserted in Times.’’' While I respect the judgment

_. of the majority, I do not share that judgment."® In short,

'- Ido not think the defendant may be said to have waived

by ‘‘silenge’’ ‘a constitutional right not enunciated at the

time; it was not even enunciated by the counsel who peti-

tioned for certiorari in the New York Times Co. decision.
In the New -York Times Co. case, the trial judge
charged that the portions of the advertisement in issue were

“‘libelous per se,’’ that ‘‘general damages need not be al- . -

’ leged or proved but are presumed,’’ that the plaintiff was
entitled to recover both such ‘presumed’? and@#punitive
“damages if the jury decided that the words related to and
eancerned hin and that the damages awarded were not
excessive. Tlie jury awarded damagés of $500,000. ‘The
questions presented to the Supreme Court in the petition
for a writ of certiorari dealt with the award of ,000,
the sufficiency of the. evidence and the lack of proof of
special damages in light of the first amendment gs em-
bodied in the fourteenth.’ Conspicuously absent Is any

17. Henry v. Collins, 1965, 380 S. 356; see Garrison v.
Louisiana, 1964, 379 U..S. 64, 73. ‘

18. It seems’ to me that to constituté such a waiver there must
’ have been “an intentional relinquishment dreabandonment of a known

Fay v. Noia, 1963, 372 U. S. 391, 439.

19. In detail, the questions presented were:
“1. Whether, consistently with the guarantee of freedom of the
press in the First Amendment as embodied in the Fourteenth, a state
. may hold libelous per se and actionable by an €lected City Commis-
sioner, without proof of special damage, statements critical of the

right or privilege.” Johnson v. Zerbst, 1938, 304 U. S. 458, 464;

e ~

€

‘

nena Patria igs 3 em : ”

a i 0 ee EF
ee Appendie B eet

Suggestion that the first amendmext, as embodied iS tne

. fourteenth amendment, requires that a public official must
prove actual malice against critics of his official conduct.”.
Apparently this is due to the fact that the defendant’s

objections in the trial court were ‘directed to the absence

of a requirement of proof of special damages.” Only: by

looking at the New York Times Co. case in retrospect can
it be said that the defendant has*waived the great consti-
tutional rights contemplated by the New York Times rule.
But'applying the same ‘‘retrospective look’’-to the, present
case,” it is also clear that had the defendant contended the
same as did the defendant in the New York Times case,
i.e., that the first and fourteenth amendments were ‘‘in-

fringed by holding the publication libelous and actionable .

which are inaccurate in some particulars.
and imposed without any of the procedural
safeguards which are required 3 in criminal proceedings. by
due process.*

35. Ga. Code Ann. § 26-2101 ; compare art. 1, sec. 9, clause 3 of -

the Constitution.
36. .See amendment 5 to the Constitution.

ha |

~

ee ee ee

RRR Gatien rinse ener Des ee mt tee he Rt a me

/ f

Appendia B | - Sla.

If there should be any doubt that the award of $400,000 ~
in damages strictly punitive viglates the due process clause
for lack of the safeguards required in criminal proceedings,
there can be none, I submit, that it amounts to a prior
restraint upon freedom of the press. The rule as-an-
nounced in New York Times Co. v. Sullivan, 1964, 376 U. 8.
254, 277-78, has clear application to the- facts of this case:

‘*What a State may not constitutionally bring
about by means of a ¢riminal Statute is likewise be-

_ yond the reach of its civil law.of libel. The fear of
damage awards under a rule such as that invoked by
the Alabama courts here may be markedly more in-

- hibiting than the fear of prosecution under a criminal |
statute. See City of Chicago v. Tribune Co., 307 Il. /
595, 607, 139 N. W. 86; 90 (1923). Alabama, -for ex-/

_ ample, has a criminal libel law which subjects to prose-
cution ‘any person who speaks, writes, or prints of and

- concerning another any accusation falsely and mali-
ciously importing the commission by such person of

& felony, or any other indictable offense involving |

. Moral turpitude,’ and which allows as punishment upon
conviction a fine not exceeding $500 and @ prison sen-
tence of six months, Alabama Code, Tit. 14, § 350.

_ Presumably a person charged with violation of this
statute enjoys ordinary crininal-law safeguards such |
as the requirements of an indictment and of proof be-
yond a reasonable doubt. These safeguards are not
available to the defendant in a civil action. The judg-.
ment awarded in this case—without the need for any

_ proof of actual hecuniary loss—was one thousand times”
greater than the maximum fine provided by the Ala-
bama criminal statute, and one hundred timés greater
than that provided by the Sedition Act. _ And since
there is no double-jeopardy: limitation applicable

52a fs Appendia B
. civil lawsuits, this is not the only jedgnent that may —
‘be awarded against petitioners for the same publica-

tion. Whether or not a newspaper can survive a suc-
cession of such judgments, ‘the pall of fear and timidity -

imposed upon those who would give voice to ‘publié, >.

criticism is an atmosphere in which the First Amend-
_ ment freedoms cannot survive. -Plainly the Alabama
_ law of civil libel is ‘3 form of regulation that creates

hazards to protected freedoms markedly greater than ,

. those that atténd reliance upon the criminal law.’ Ban-

tam Books, Inc. v. Sullivan, 372 U. 'S..58, 70.°? *7 )

For yet another ‘reason the award 6f $3,000, 000 by. the
' jury, or of $400,000:by the court, as punitive damages is

- uncorstitutional ‘and void. There was no semblance of defi-
nite standard or controlling “guide to govern the award. -
Can any standard be more vague or arbitrary than ‘an
expression of ethical indignation’’ first on the part of the

" . jury and then on the part of the trial judge? It must be

remembered that stricter standards of permissible vagte-
nessare applicable to a rule having a potentially inhibiting

, effect on freedom of the press than are applicable to rules

” relating to less important subjects.”

. Still further, I submit-that the’ remittitur violates the os
- defendant’s rights under. the seventh amendment, The

trial judge concluded ‘that the award for punitive dam-
ages in this case was grossly excessive. It is the court’s
considered opinion that the maximum sum for punitive
' damages that should have been awarded against Curtis
. Publishing Company should be $400,000.00.” [R., p. 95]

37. See also Cantwell v. Connecticut, 1940, 310 U. S. 296, 306;
Near v. Minnesota, 1931, 283 U. S. 697, 713-14, 720-23.

38. Staub y. City of Baxley, 1958, 355 U. S. 313, 322.

39. Smith v. California, 1959, 361 U. S. 147, 151; Crunfp v.

etd Fee hee em. 368 U. S. 278, 287

T se i eel eds ee ee es a ei 7
— — - se w + EET SS

22 Tone

Peta hme > gg tote «

Bao we wert é

_ Appendia. B os 88a
In anogher part of his 0} inion on motion for new trial, the

district jadge commerited: ‘The award for punitive dam- |
ages in the case under “consideration is more than seven-
teen times larger than the highest award for punitive dam-
ages ever sustained.”’ [R., p. 93] The district judge’s.
opinion is silent as to the underlying reason for such a.
&raasly excessive verdict. The mafority opinion says that ~
**. 2\, the judge necessarily rejected the idea that this
verdict had been infected by such destructive elements [as.

_ passion or prejudice].’’ [Majority opinion, p. 28.] With 4)"
deference, I submit that that conclusion isnot based on the
record or on anything said by the trial judge. To the con-
trary, in colloquy with counsel, the judge may well a

' disclosed his view as to why the judgment was excessive: °. *

‘«Suppose the court should determine that probably a cer-
_ tain portion of the argument was improper, and therefore.
the verdict was excessive, and grant you a new trial on that
ground, and then it was tried again... .” IR., p. 1373.]

The majority of this Court labors under a different im-
pression. It several times refers to the defendant’s new
_ policy of ‘sophisticated muckraking’’ without benefit. of * Slee
what the defendant claimed that it meant by that expres- a
sion [R.,pp. 37-38, 1019.]:

“‘Defendant admits that beginning in ‘the latter
part of 1962, The Saturday Evening Post adopted an —~
editorial policy of ‘sophisticated muckraking’ in the
sense of printing the-truth about the grave dangers
facing the country, including the threat from outside
the country and. the deterioration of moral values

_ Within the country.”? [R., pp. 37-38.]°

It was, of course, for the jury to say whether the defend- _
ant’s explanation was true. In any event, I agree with
the majority that the. expression ‘‘was by itself more than

e

Mm. * Appendix B-

. ‘enough, to inflame the jury.”’ [Opinion, pp. 91-22.) If, as

is impliedly conceded, the jury was ‘‘inflamed,’’ then was

* not passion and prejudice the most probable cause for its

* gtossly excessive verdict? The majority continues, ‘*Coun-
Sel for Butts. conld only gild the lily.”” [Opinion, p. 22-]
‘I am tempted to facetiously. comment on their plentiful
supply of ‘‘gilt,’’ but, in a more serious wein, I must: express
my shock and surprise that this Court will leave standing

what amounts to severe criminal punishment of the defend- ©
ant in the face of the highly i improper and prejudicial “_—

ment of plaintiff’s counsel. . .

The majority says that “some of the argument was
invited . ,”’ but is not more specific as to the particular
argument of defendant’s counsel which amounted to an

‘invitation. However, the — ’s brief &. 93) refers

to the following: ; .
‘¢Mr. Cody’s exact words were: (R. 1967) .

‘¢ ;
rT; , f

“‘Somebody has got to stop them. There is no
_ law against it, and the only way that type of, as I call |
.. it, yellow journalism can be. stopped is to let the Satur-

| » day Evening Post know ‘that it is not going to get _
away with it today, tomorrow, or ariy more hereafter, -

( >

°. Appendia B

and the only way that lesson can be brought home to

- them, Gentlemen, is to hit them where it hurts them,
and the only thing they kn@W is money. “Fhey write -
about human beings; they kill him, his wife, his three .

. lovely daughters. What do they care? “They have got
_ money; getting money for it. Re =. |

" «T am looking to you for my protection. ‘ Heavens
- (sic) knows, if you let them out of this case for five
- million dollars or less, and boy, it’s been worth it to
them, I may he next, because they are not going to stop
with that. You may be next; my wife; my children;
_. yourself. We have got to stop them now, and you are

the only twelve in thg world that can stop them. [R.,

,
e

1319.] :

éé .. .
° . - .

“T say, Gentlemen, this is the time we have got to

get them. A hundred million dollars in advertising,

would ten percent of that be fair to Wallace Butts for.

what they have done to him? Would a fifty cent assess-
‘mient on each of the twenty-three million issues which

they wrote about him there, would that be a strain or
@ burden on them? I think it would teach “them that

we don’t have'that kind of journalism down here, and
we don’t want it down here, and we don’t want it to

spread from 666 Fifth Avenue any further than that

building right now. n ’

My time is up,.I have done the best Ian. I have
lived in agony with this man since I got the first notice
- that this was what was going to happen, this Post
article was coming out. I have seen him deteriorating

La
r. i
. ., 7

SE ee eee ee Ce

Appendia B 57a,

' @ven since it came out, dnd I have lived in agony. along .
with him, ahd it may be that the personal first-hand
knowledge that I have had since almost living with
him and his family every day, I may have said some

.things or done ‘some things or conducted myself in |

‘some manner that was displeasing to you.. All I can |
say, I have done my best, and if I have done, any of

those things, don hold it against. Wallace Butts.

‘*You know, one of these days, like evéryone else
must tome to, Wallace Butts is going to pass on. No
one can bother him then. The Saturday Evening Post
can’t get at him then. And unless I miss my guess,

~ They will put Wallace Butts in a red coffin with a black
lid, and he wil have a football in his hands, and his
epitaph Will read something like this: ‘Glory, Glory to
: old Georgia.*’’ [R., pp. 1321-22.]

'. If this dissent serves no other purpose, it will at least
. preserve for posterity the colorful peroration last quoted.
Seriously, it seems to me that ‘‘the public interest requires
_ that the court of its own motion, as is its power and duty,
~ protect suitors in their right to a verdict uninfluenced by
the ‘appeals of: counsel to passion or prejudice:’’? N. Y.
_ Central RR. Co. v. Johnson, 1929, 279°U. §. 310, 318. That
_ would be true even if the_prejudicial argument had not
been followed by a grossly excessive verdict. I submit - ——
that the $3,000,000 punitive damage verdict was. so clearly
the result of passion and Prejudice that it could not be - *
cated by remittitur.° te
' It is difficult in any case to reconcile. the ‘practice of |
remittitur with the constitutional right of a defendant to

\ 40. Minneapolis, St. P. & S. S. M. Ry. Co. v. Moquin, 1931, 283

U. S. 520; Brabham v. State of Missssipgh, 5 Cir. 1938, 96 F. 2d 210;

- Ford Motor Co, v. Mahone, 4 Cir. 1953, 205 F. 2d 267 ; National
‘Surety Co. v. Jean, 6 Cir. 1932, 61 F. 2d 197. es

>

Appenii B : ae.

» -

trial by j jury. 41 The logic of Professor Carlin's article on.

‘Remittiturs and Additurs (1942), 49 W. Va. LQ 1, 17, 18,
quoted in 6 Moore F. P. (2d ed.) — 39; seems to me un--

answerable.* ; »
That logic is peculiarly applicable to the circumstances

of this case, where only punitive damages are reduced and ~

there is no rule or sfandard by ‘which the judge . can sep-.
arate any good part.of the verdict from the bad. In effect,
the remittitur from $3,000,000 fo $400,000 represents noth-

ing more specific than the difference between the jury s

"and the judge’s sense of “ethicahindignation. > The j jury’s -
: verdict cannot be recognized in the final judgment.” _
I appreciate that in the federal cou¥ts the right to a .

jury trial is to be determined as a matter of federal law

in diversity as well as other actions.** It i is, however, -both
* interesting and instructive to refer to Georgia. Jaw. -The
- statute permitting the award of punitive damages,“ says _.

that ‘2... . the jury may give additional damages. . . .””
(Emphasis supplied.) Another statute prescribes: “The

-~—question of damages being one for the j jury, the court should _

not interfere, unless the damages are either so small or so
excessive as to justify the inference of gross mistake or
undue bias.’ Ga. Codé Ann. § 105-2015.

It has long been the law of Georgia that “the trial
judge has no power to order that, as a condition. to the

~ 41, Sée Dimick v. Schiedt, 1935, 293 U. S. 474,-482-87.
42. See.6 Moore F. P. (2d ed.) 59.05(3) ; 3 arron & Holtzof

"[1305.1; 30 Am. Jur. New, Trial, §§ 209,-et seq.; 66 C. J. S

Trial, §§ 209, et seq.

43. Simler v. Conner, 1963, 372 U. S. 221-22; Ammons v. The
Franklin Life Ins. Co., 5 Cir., No. 21418, decided June 28, 1965.
Nonetheless, it does seem anomalous for the federal courts to require
the state courts to accord the strictest guaranty of jury trial when.
indicated by a federal statute (e¢.g., the Federal Employers’ Liability
Act), and then, i in a ‘diversity case to refuse to recognize the require-
ment of jury trial imposed by a state statute. Z

44, Ga. Code Ann. § 105-2002, quoted supra p: 47.

7 ’ F in

yer ve PPLE NS LPL ELISE ON SO A - 0 RA WRG a, AE RES «
= _ granted. ‘The

_ Court said: ne ry

" Si determining ginitive or exemplary damages it

is impoésible to lay.down any fixed rules for A preéise ©

‘mathematical calculation; ‘and in every such case, the

this finding should not have exceeded a certain sum, — |

amount of the finding must. be largely in the power of
the jury, who have no other guide but their enlight-
ened consciences. To say, therefore, i in such cases that

is to invade their pequliar province, and to assume

their functions; and to require a portion of the amount

so found by them to be remitted, and the balance to
stand as their verdict, seems to us unauthorized either
by the words of the law, or by the precedents and prac-

tice in such cases.? Savannah, Florida & Western Ry. -
v. Harper, 70 Ga. 119, 123-124 — many other |

authorities]. —
‘Tt is our wish to make it clear that nothing’ held

’ here or in any of the authorities cited is subject to the

inference that a trial judge is restricted in the exercise

.. of his exclusive discretion to grant or deny a motion

_ for new trial’on the general grounds. We do emphasize ~

"that where the determining of’ the amount: of a par-

-ticular class of damages lies exclusively with the jury,

the trial court must either grant or deny a new trial.
on the basis of the jury’s award. The trial judge can-
not condition the exercise of his discretion in granting

or denying a new trial on an acceptance by the a aaa v.

of a different sum selected by him.’’ -

City Motor idan v. mine Ga. App. 19 138 Ss. E.
2d 925. 926-27. .

» ‘The seventh amendment asincebibione a right of trial by
jury to the defendant as well as to the plaintiff. I cannot

SAS sates Aaa Links elie nhaattsinlaniesn PY abe

~ SN Apipendia BO Cla:

, esca oe the: conviction t ‘That by the remittitur in this case |
that right has been denied to the defendant. : |
“Both because New York.’Times v. Sullivan is: convine..
ing that this case was tried upon fundamentally erroneous
principles of law, and because the enormous. award of
, punitive damages and the remittitur violate the * defend-
ant de con, itutional rights, I would reverse the judgment ~
- of district court. I therefore —— dissent... .

e | ' ®
k . 2 va
. . > .
, > «
- x af

> es

; OPINION OF THE UNITED. STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT ON PETI-
TION FOR REHEARING. “

IN THR” 7 °
UNITED STATES COURT OF APPEALS ,
For THE Firre Crovrr.

— >)
~y No. 21491. ss!
CURTIS PUBLISHING COMPANY,
, Appellant-A ppellee,
WALLACE BUTTS, val

Appellee-A nt.

(AnpD Eyres TrTLE)
Apprats From tae Unrrep States District Court For tHE
7 Nortueen Distaror or Grorcmu. *

(October 1,

ON PETITION FOR REHEARING.

Before Rives and Brown, Circuit Judges, and Giviane,
District Judge.

_ Pzr Curt: As Curtis’ petition for rehearing asserts
that the waiver found by us is based on ‘‘alfeged facts,

_ most of which are obtside the record’’, and upon ‘‘unsup-

ported statements in Butts’ brief, which for the most part

are not true’’, we deem additional comment appropriate.

eo

Appendia Bo

The burden of Curtis’ brief, elaborated in the petition
for rehearing, is that Times came like a bolt out of the
blue, and no one either. knew of, or could anticipate, that
a state-created libel ‘damage action was subject to or could

. ‘be controlled by First Amendment freedom of speech con-

stitutional limitations. Therefore, the argument runs, until

_ Times there was no reason to assert the constitutional claim,

and consequently it should not be held to the usual appellate
consequence of failing properly to preserve the point.

Obviously this Court is not required to accept the mere

assertions of Curtis. This Court has the duty of determin-

ing whether this contention of Curtis was well founded. .
While this partakes of factual evaluation in 4 sense, the

question of waiver is a law problem—i.e., whether skilled
counsel would reasonably think the contention to be plaus-
ible. Since Curtis did not seek to raise the constitutional

issues before verdict and judgment, it was entirely. proper ©

to'look to the sources discussed in our original opinion in
order to ascertgi# the pertinent facts. Until the filing by
Curtis of its ion for rehearing, the statements in Butts’

-brief, referred to by Curtis, had not really been disputed.
And now, after having given full consideration to the affi-

davits and.to all other matters presently submitted by

Curtis, we are still of the firm opinion that when all-of the.

acts and conduct of Curtis’ attorneys are tested in the
light of reason, Curtis cannot sustain the proposition that

.

its counsel were ignorant of a constitutional claim so asto

be totally excused for the complete absence of ayy timely —

assertion of it.

To its petition for rehearing, Curtis attaches affidavits.

made by Philip H. Strubing, whose Philadelphia, Penn-
sylvania law firm of Pepper, Hamilton & Scheetz, is general
counsel for Curtis; by T. Eric Embry, whose Birmingham,
Alabama law firm represented the oer York Times Com-

\
\

- 64a Appendia B res
‘pany in the case brought against it by Sullivan (Times
ease), and also represented Curtis in the related libel
“eases brought against it in the United States District Court
by Coach Paul Bryant; ' and by Welborn B. Cody, who was
‘ lead trial counsel for Curtié in the Butts case. In general,
the affidavits assert that Mr. Embry and his partner,
Roderick Beddow, Jr., attended the trial of this Butts case
as spectators only, were not consulted concerning trial
strategy, and did not advise Mr.. Cody concerning the con-
stitional questions they had raised in Times. Mr. Cody
stated that ‘“‘he was not aware of the constitutional issues
~ being urged in (the Times) case.” :

There is no dispute that the lawyers who sat together
at the Curtis counsel table during the Butts trial were
' representing Curtis either in this case or in the related

' Bryant libel suits pending in Alamaba, so presumably they |

were all on Curtis’ payroll. Unusual as it ‘would be for
them not to consult with one another concerning strategy

and tactics during the two-week trial; we accept the state- .

ment that neither Mr. Embry nor Mr. Beddow informed Mr.
Cody of ‘the constitutional questions being raised in the
Times case.

7 But what about Mr. Strubingt In his affidavit he stated
that he participated actively in the preparation of the

Butts case for trial, and that he also worked actively with |

Mr. Embry in the preparation of the related Bryant cases.

He is-also on the brief in our case and participated in the

arguments. .

Butts’ response to the petition for rehearing refers us
to the records of this Court, of which, of course, we may
also take judicial notice. In Cause No. 21,152, The Curtis
Publishing Company v. Honorable H. H. Grooms, United

1. Civil Actions Nos. 63-2-W and 63-166, brought in the

Western and Southern Divisions respectively, of the Northern Dis-

r

trict of Alabama.‘

——— ee ee ee

| Appendia B : | 65a

States District Judge for the Northern District of Ala-
bama Curtis sought a writ of mandamus to compel Judge
Grooms to :vacate his orders denying Curtis’ motion for
change of venue. That record reflects that on February 26, .
1963 (one month before the Butts suit was filed) Mr. Strub-
ing’s law firm, together with the firm of which Mr. Embry
and Mr. Beddow are members, signed and filed in the
Alabama District Court a motion to dismiss the related
libel action instituted by Bryant, on the grounds,. among
others, that: | a hy ae cd
‘*To subject this defendant to liability in the cir-
cumstances complained of would abridge the freedom -
. Of speech and of press in violation of the First Amend-
ment to the Constitution of the United States, made
_ \ applicable-to the states by the Fourteenth Amendment
‘to the Constitution of the United States. . .

‘*To-subject this defendant to liability in the cir-.
cumstances complained of would be repugnant to the |
. due process clause of the Fourtenth Amendment to.
‘the Constiution of the United States re. a

In a later suit filed against Curtis by Bryant the same
two law firms made identical content?6ns in a motion to
dismiss signed and filed by Gach of them in the. District
Court on April 30, 1963, still more than three months
before the trial of the Butts case. . s

If the First and Fourteenth Amendments were thought
by Mr. Strubing and his law firm to be valid grounds for
dismissal of the related Bryant cases in Alabama, wliy
did they not assert them in the Butts case? By his own
statement Mr. Strubing was an active participant in all
three cases, so he certainly should lave known what the
rights of Curtis were. Although he now says that he was
‘not aware of the constitutional defenses articulated by

»

&s .

66a “Appendia B

Times until that case was decided by the ane Court
some six months after the,trial of the Butts case, neither
he nor his local counsel (Mr. Embry) considered a final
decision in Times—or for that matter any oth@ case—
a necessary prelude to raising in the related Bryant cases,
the constitutional claim previously asserted by Mr. Embry
in Times? And for good reason, at least ever-since June
1962 when those who wished. could see the handwritin
_ on the wall, certainly as the moving finger followed -
voice of Mr. Justice’Black’s celebrated ‘‘First Amentment
. *Absolutes’; A Public Interview’’?

- 2. That these constitutional claims were ‘well preserved by these
counsel in: Times without the learning which was to come several years
later through A words of the Times opinion is recognized by the
Court itself : (Alabama trial) judge rejected petitioner’s con-
tention that his tro Se abridged the freedoms of speech and of the
press that are guaranteed by the First and Fourteenth Amendments. 14
376 U. S. 254, 263.

The Alabama Supreme Court also recognizéd the assertion ‘of

_ these constitutional claims for it “rejected petitioner’s constitutional
contentions with the brief sjatements that “the First Amendment of
the U. S. -Constitution not protect libelous publications dite iting
14 So. 2d at 40.” 376.U. S254, 264. ;

3.-Justice Black and First Amendment “Absolutes” ; A Public
‘Interview, Edmond Cahn and Mr. Justice Hugo L. Black, 37 NYU
Law Review 549 (June 1962). The background of the interview was: ~
_ the Justice’s lecture entitled “the Bill of. Rights”, delivered at the.
New York University School of Law, February 17, 1960, publics.
at 35 NYU Law Review 865 (1960). See, e.g.:

“CAHN: .Do you make an exception in freedom of speech
* and ‘press for the law of defamation? That is, are you willing to
allow people to sue for damagés when they are subjected to libel
or slander?
“JUSTICE BLACK: My view of the First Amendment
* * * is that it said Congress should pass none of these kinds
of laws. * * * I have no doubt myself that the provision * * *
intended that there should be no libel or defamation law in the
United States under. the United States Government, just ab-
“ solutely none so far as I am concerned: * * # #” °(557)

ee.

- “My belief is that the First Amendueit: was: made applicable
‘to the states by the Fourteenth a, So mat See, so far as my

_ Appendia BO 67a

- Granted that the extra-judicial statements of a single —
. Justice do not an opinion make,‘ the Court itself in Times
treats this newly announced rule as a natural development
of the constitutional propositions long recognized by its
extensive writings on First’ Amendment freedom of speech
rights. “Thus, it emphasized. that the ‘‘general proposi-
tion that freedom of expression upon public questions is, |
secured by the First Amendment has long been settled ‘by
our detisions.’’ 376 U. S. 254, 269. _ Announcing its rule,
it referred to the ‘‘oft-cited statement of a like rule * * *
adopted by a number of state courts * * * found-in the
Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98
P. 281 (1908) ’*—a decision theri nearly half a century old.
-__ Whatever may have been the reasons for invoking the
First Amendment, claim in the “Alabama suits while re-
maining silent in Georgia, Curtis cannot sustain the propo-
sition that it was unaware that a defendant in a libel action
might assert the constitutional claim as a defense... Coun-
sel for Butts make a persnasive suggestion thatCurtis ”

> =\ ™ *

own view is concerned, as to what’ should be and what EF hope‘will
. Sometime be the ‘constitutional doctrine that just as it was not .
intended to authorize damage suits for mere words as distin-
guished from conduct as far as the Federal Government is con-

- cerned, the same rule should apply to the ‘states.
“* ee & . ces ;

“I am for the First Amendment from the first word to the

last. I believe it means what it says, and“it Says to me, ‘* * *

- Goverriment shall’ not attempt to control the -ideas a man has.

* * * Government shall not abridge freedom of the } ress or

speech. It shall let anyone talk in this country.” * * * Let them
talk! Inthe American way, we will answer them.” (563)

4. They were shortly to be-announced ex cathedra in his con-
curring opinion in Times, 876 U. S. 254, 293, joined by Mr. Justice
* Douglas and substantially echoed by .Mr. Justice Goldberg” (with
. Justice Douglas), 376 U. S. 254, 297. aw
5. See the extended annotations, The ray Court and the
ie of Free Speech and Press, 11 L.Ed. 2d 1 16-1175 ; 2 L. Ed. 2d
1706; 93 L. Ed. 1151. | “ae

+

® -
® .” »
>

68a its Appendia B.

elected to defend this case.on its plea of justification, rather
than raise the jurisdictional, constitutional and other af- ~
firmative defenses * it had raised in the Alabama Bryant
eases, in order to get the right to open and close the
._arguments.-° " . 7 ae

Nor, as suggested in Judge Rives’ dissenting: opinion
on denial of reheariyg, do we consider that our action is at .
all inconsistent with the pringiple of law expressed for the
Court by Judge Wisdom in Commissioner of I nternal Reve-
nue v.. Chase Manhattan Bank, 5.Cir., 1958, 259 F. 2d 231,
238, cert. denied, 359 UM. 913." |

— 7

; er fT

.
oe eee ee ee ee ee

- 6. These would include the conditional privilegt recognized by
§ 105-709(6) of the Georgia Code concerning published statements,
relating to the “acts of public men in their public capacity”. See Note |
_ 20, 376 U. S. 254 at 280. . 2
-7. Actually, in this tax case the theory later developed for the
first time in this court had been raised in the bank’s petition filed
_ inthe lower court and agreed upon by both parties at the trial. The
Court, in deciding to consider the development of the theory, stated
that the “tax liability as to the testamentary trust depends on whether.
Daniel’s will put Marie to an election. The question is in the case.
A just determination of the appeal requires us to bo it.” (Em-
phasis supplied). This case involved the gift tax liability under three
trusts created by the decedent, “Daniel”, one of which was a testa-
mentary trust 0 his residuary estate from which his wife, Marie, was
‘to receive the income for life, the remainder to be divided among
Daniel’s descendants. In the Tax Court, the bank’s petition stated
that “the estate was still under administration. and that ‘no deter- |
mination has yet been made as to-whether or not the said Marie
‘Elizabeth Moran has elected to take under the will’ . . . that
_ Marie’s motive ‘in not taking against the will was to benefit herself’ ”.
At the trial the Commissioner and the bank agreed to assume that

-Daniel’s will put Marie to an election ‘and that Marie’s receipt of. s
income from the trust was sufficient to show that she had elected

to take under. the will. They differed only as to whether the effect . *
of the election was that she had made a taxable gift. The Tax Court *
held that Darttel’s will pat Marie to an election and that Marie’s
“acquiescence” in the testamentary trust constituted a taxable gift. ©
On appeal, for the first time in the case, the defendant made the
— that Daniel’s will did not purport to dispose of Marie’s‘share .

. therefore she was not put to an election, thereby denying that
Marie transferred her share of the community estate to the trust. In
answer to the issioner’s objection to the bank’s new argument .

. a

s ny
-

~

nny _

. - _ Appendia B ; | 69a
In that case,the legal theories developed in this Court

for the first time could be fairly disposed of on the record,
and the opposing party was not prejudiced by the use of
other theories.* However, here Curtifeeks a reversal
so that a:new record based on different theories may -be
~made at another trial. The wholesome desire ‘‘to secure
the just * ‘*-* determination of every action ”’, neither dis-

that Marie was not put.to an election; aiid its contention that the tax- .
payer is not at liberty to urge as a ground’ for reversal a/ point, not
raised in the court below, the court states that “indeed,/. . . the
taxpayer invited error ... . worse, the invitation was accepted. But
an appellant has no vested right in an opponent’s error of law in the
lower court—especially when the protesting appellant. is the Commis-
sioner of Internal’ Revenue . . . (who) owes a duty to all taxpayers

- to see that the tax law is applied justly. . . . Federal pri
cedure is‘ moving away from What: Pound calls ‘the sporting theory’ of
justice’, Wigmore the ‘instinct of Kiving the game fair play’, and \
Arthur Vanderbilt’ the theory of procedure as ‘a contest between two
legal gladiators’. We are a court ‘to secure the just * * * determina-
tion of every action’. Rule 1, Federal Rules of Civil Procedure, 28 —
U. S. C. A. Daniel’s will is in the record and speaks for itself.

- “(W)here, as here, the case below was tried, not upon any misappre-
hension of the facts, but upon a misapprehension of the effects of those
facts in law, appellant may not ‘be prevente¢ from pressing here for “
the application, to the proven facts, of the correct principles of law.’
, “We see no reason why we should make what we think would
‘be an erroneous decision, because the applicable law was not insisted
upon by one of the. parties.’ ” :

See also Jack Ammann Photogrammetric Engineers, Inc. v. Com- -
missionér of Internal Revenue, (5th Cir. 1965) 341 F. 2d 466, a tax
case citing Commissioner. of Internal Revenue. v. Chase Manhattan
Bank, in determining that since legal theories_weré there being urged
“that can be fairly disposed of on the record befdre us. We do not
consider that we should refuse té considef them rely because they
were not urged in the Tax Court.”

8. See Glavic v. Beechie, (5th Cir. 1964) 340 F. 2d 91. The
majority refused to consider a question not presented for determina-
tion in the District Court. Judge Wisdom in his concurring opinion ©

_ Stated, in opposing this decision, that he “would allow either party
oh appeal to advance a new. theory or to change his theory of the
case—if:*(1) all the relevant evidence is before the court, (2) the
opposing party has had adequate time.to brief the point,.and (3) the

' Opposing party is not prejudic(ed) by not bea introduced evidence

— Se

below that would have militated against the

idity or effect of the
new theory.” tei | f :

ns i

,

4

, ie

-

.

Ma * Pro Appendiz B

‘penses with ‘the eben of procedure, nor forecloses the ap- e

- plicability of the doctrine of waiver when all-of the ele-

ments which constitute-that doctrine are present, as in the
meas case.

s to all other. coittentions it in the petition for rchiering |
and supporting brief, we adhere wi t further-comment.
to the holdings in our original opinion: Finding no heag i
see Rule 25(a) of this Court, the petition for rehearihg is
a. | >

’ Petition DeEnIeED.

J
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‘Rives, Circuit Judge, Disiiting:

Sn 3

_The majority undertakes to bolster: its holding that —
Curtis has clearly waived any right it might have had to
challenge the verdict’and judgment on any of the constitu-
‘tional grounds asserted in. Times,”’ 1 -

_ on
: Paks i et

> sgeniied ' in my earlier dissent,? that is fot. true

as to the holding in Times that a state law of civti libel
which sustains-the imposition of extremely large awards
_ of damages i in libel actions may constitute a prior restraint °
on freedom of expression forbidden by the First and Four-

‘teenth Amendments. New York: >Times Co. v. ‘Sullivan,
1964, 376 U: S. 254, 277, 278: |
’ The enérmous amount of the verdict in the present

case could not have been anticipated. Curtis raised the

: 1, Slip Opinion, pp. 17 and 18.
2. Slip Opinion, PP: 46, 47, 52 and 53.

j - ‘

Appendia B a Ta.
point seasonably as a ground for its first motion for new

“-- ... ‘es . 8
- In ruling on that motion the district dourt recognized

_ that: “As far as this Court can ascertain, the largest

award ever sustained for punitive damages by the Appel-
late Courts was an award of $175,000.00 in the case of
Reynolds v.. Pegler, D. C., 123 F. Supp. 36; 2 Cir), 223 -

. F.2d 429." 295 F. Supp. 916, at 919. Nonetheless, ‘after

the plaintiff filed his remittitur, the district court entered
judgment against Curtis for $400,000. punitive damages
plus $60,000 general damages, or a total of $460,000. Since
that time, Curtis has lost no opportunity to insist that the
$460,000 award, if sustained, is so large as to constitute a

- prior restraint upon freedom of the press within the rule _
announced in the Times decision. On that issue, there is,

I submit, no debatable question of waiver. For reasons

expressed. in my prior dissent,‘ I would rule with Curtis

on that issue. f - ie
As to the punitive damage award, the section of the

?

| Georgia Code quoted in my earlier dissent ® and the oral
. charge to the jury,*® make clear that the very purpose of

~- —* “Ce) The amount of punjtive damagés, in the circumstances of

. from a repetition af the’o

S case, was so ‘excessive as to violate and abridge through excessive-

hess alone, the guarantees of free speech and press.” (Record, pp.

46, 47.) .

4. Slip Opinion, pp. 51, 52 and 53.

5. Section 105-2002, Georgia Code Annotated. ots

6. “The purpose of = damages is to deter the defendant

ense-and is a warning to others not to com-

mit a like offense. ‘It is intended to protect the community and has an
€xpression of ethical indignation, although the plaintiff receives the
award.” 7 ~~ ; ae

72a, ao 7 _ Appendia B

punitive damages is to act as a deterrent to future conduct,
which, in libel cases, means a prior restraint on freedom ©
of expression. When that deterrent or restraint assumes —
proportions of the jury’s verdict, $3,000,000, or even of
the award made by the district court, $400,000, I submit
~ that it is forbidden by the First and Fourteenth Amend-
ments." , . |
‘The part of the Times opinion relating to prior re-
straints on freedom of expression was certainly not ‘‘new
law.’”? Nor was that part of the opinion limited to public
officials. Clearly, I submit, whether Butts was a public
official or not, the enormous award of damages must be
set aside. — a

as

: a
The specific holding in Times, which had not thereto-
fore been generally recognized, was that a State cannot
under the First and Fourteenth Amendments award dam- _
ages to a public official for defamatory falsehood relating
to his official conduct unless he proves ‘‘actual nialice’”’—_
that the statement was made with knowledge of its falsity
or with reckless disregard of whether it was true or false.
It was that principle to which I referred in my earlier dis-
sent,* when I said ‘‘it’ was not even enunciated. by the
counsel who petitioned for certiorari in the New Y ork —
’ Times Co. decision.’’® Now on petition for rehearing,
counsel makes affidavit that: ‘‘The requirement of the
New York Times case that general damages could not be
’ awarded without the necessity of proof of. actual malice
on the part of the defendant was not specifically presented: ©

* 7. See Bantam Books, Ine. v. Sullivan, 1963, 372 U. S. 58, 70,
cited in Times (376 U. S. at 278). |

8. Slip Opinion, p.° 42.

- 9, An per which I ‘had reached from an examination of the
petition and briefs on certiorari. pe

-

““Appendia B i 73a ™

in the Alabama innit nor in the petition for’ certiorari to -
the United States Supreme Court.”’

In order properly to object to the district court’s
instructions allowing recovery of general damages without
proof of malice, and recovery of. punitive damages on a

. definition of malice at variance with that prescribed in

_ Times, counsel must have anticipated _ ies holding
of the Times decision.

Judge Morgan, the District Judge in the present he
recognized, at least impliedly, that Curtis had not. waived
that constitutional right by its failure to insist upon it at
the trial, ‘when, in denying the motion for new trial under

_- Rule 60(b), Fed. R. Civ. P., he considered and ruled on the
* -defense on its merits. Butts v.. Curtis Publishing Co.,
N: D. Ga. 1964, 242 F. Supp. 390.

Based largely on facts dehors the present record, the
majority held that: Curtis’ trial counsel had knowingly and
intentionally waivad the constitutional protections afforded

po. by the Times case, ‘by failing to. raise them at the trial.
In response to that holding; three of Curtis’ attorneys have
filed with this Court their sworn affidavits.". Now the
majority goes still further ‘beyond the present record D and~- :
considers another case shown by the records of this Court —
but of which Judge Morgan could not have taken judicial
a . notice when he considered and ruled on Curtis’ section °
60(b) motion. With deference, I submit that it is the func-
a . tion of this Court simply to review the ruling of the dis-
trict court-on the record before that court.
If, however, we -are to resort to wiidiones outside the
record ‘and to bolster our judicial notice from records i in

eh ESTE

i“)

stent EAD OKE EE AD LBAT AME eA

10. “No party may assign as ‘error the giving or the failure to .
give an instruction unless he objects thereto before the jury ‘retires
* to consider its verdict, stating distinctly the matter to which he objects
~ and the grounds of his objection.” Rule 51, Fed. R. Civ. P.

11. Ethically permissible “when essential to the ends of justice. ”
A. B. A. Canons of Prof. Ethics No. 91. —

— ss a

«&
\Y

74a _ Appendia B
other cases, those extraneous matters do not impugn the

integrity and veracity of Curtis’ trial counsel. It seems
clear to me that, at the time of trial, counsel had no notice

of the specific holding thereafter made in Times. It is.

impossible for me to believe that, if counsel had any such

- notice, they would have knowingly and intentionally waived
‘- the specific constitutional protection afforded by the Times

case ‘‘in order to get the right to open and close the argu-
Ments,’’ as suggested in-the majority opinion:

It is teo much*to hold counsel to the duty-of antici-
pating the specific holding of Times, because of general as-

,Sertions of First Amendment defenses in other cases, or . .
even because of Mr. Justice Black’s view that the First -

Amendment “. . . intended ‘there should be no libel or
defamation law in. the. United States under the United
States Government, just absolutely none so far as I.am

concerned. . . .’?” The majority paints with such a .

broad brush as to require the assertion of a First Amend-

ment defense in. every libel or defamation case hereafter

litigated. = ® . : .
* With deference, I submit that it is the outworn sport-

_ ing theory of justice * which leads the majority to convert
this appeal into an unseemly trial of Curtis’ lawyers. The
-function of this Court is not to decide a contest, but to ad- -

minister justice. Curtis, not its lawyers, stands mulcted

in damages to the extent of $460,000 as the result of a |

trial conducted on a fundamentally and constitutionally de-
ficient theory of law. wos .

12. Quoted in footnote 3 to the majority opjrffon’on rehearing.
13. “Federal procedure is moving away from what Pound calls
‘the sporting theory of justice,’ bib aes ‘instinct of giving the
game fair play,’ and Arthur Vanderbilt the theory. of procedure as ‘a
contest between two legal gladiators’; We are a Court ‘to secure the

just * * * determination of every action’. Rule 1, Federal Rules of *

Civil Procedure, 28 U. S.C. A.” Commissioner of Int. Rev. v. Chase
Manhattan Bank, 5 Cir. 1958, 259 F. 2d 231, 238. ’

~a »! ’7 > _—
- . ie

e

Mh Appendic B Ba

The resulting damage extends far beyond the mone-
~ tary loss to Curtis. This Court’s refusal to consider and °.
. decide whether constitutional standards .aqwere observed in
adjudging Curtis liable is a grave reflection upon the ad-
‘ministration of justice itself. Permitting such a libel judg-
ment to stand will.cause ‘‘: . . the pall of fear and timid-
ity [to be] imposed upon those who would give voice to
public criticism in an atmesphere in which the First Amend-
*’ ment freedoms cannot survive.’’™* ..
' A just determination requires this Court to consider
‘and decide this appeal on its merits." The altered situa- —
tion created. by the intervening ‘decision of the Supreme
Court makes that a compelling duty."* A
I, therefore, respectfully dissent.

14, New York Times Co."v. Sullivan, 1964, 376 U. S. 254, 278.
15, Hormel v. Helvering, 1941, 312 U. S. 552, 556, 557.

- 16, The Peggy, 1801, 5 U. S. (1 Cranch) 103, 110; Connor v.
New York Times Co., 5 Cir, 1962, 310 F. 2d 133, 135, and cases

°

«+
Meee

16a Appendie B we

OPINION OF THE UNITED. STATES ‘DISTRIOT
COURT, NORTHERN DISTRICT OF GEORGIA, ON
_ PETITIONER'S MOTION FOR NEW TRIAL.

UNITED STATES DISTRICT COURT
NortHern District on. GEorGia
Atianta Drviston.

Civ, Acrion
No. 8311. : .
WALLACE BUTTS, ;
| 7 Plaintiff’,
7 v. ;
CURTIS PUBLISHING COMPANY, '
5 3 Defendant.

The jury in this libel action returned a verdict for
general damages against the defendant in the sum of

$60,000.00 and for punitive damages ~in the sum of
$3,000,000.00.

The defendant moves, under Rule 59 of the Federal

Rules of Civil Procedure, 28 U.S. C. A., to set aside the
verdict for damages principally upon the ground of exces-
siveness, as set out in Ground 1 of the defendant’s motion.
Apart from defendant’s contention that the verdict is exces-
sive, the defendant sets out 23 other grounds in its motion
for a new trial (Ground bs of eee ate having
.been abandoned).

The cause of action % plaintiff arose a virtue of an .
article published ‘by defendant in its March 23, 1963, issue —

of the Saturday Evening Post, said article having been

Principally written by one Frank — Jt., but with

\
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4 .

PCE Sy ONE Ee

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.
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Sel SOPH oo eae ee >

—

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AM nan le Hie: ay

Appendia B : as [Ta

assistance from others employed: by the defendant. The
article was entitled ‘‘The Story of a College Football Fix’’,
with the subtitle “How Wally Butts and Bear Bryant
Rigged a Game Last Fall’’. The article. eoncerned alleged -
information on Georgia plays given by Butts to Coach
Bryant relating to the Alabama-Georgia f football game
played in Birmingham, Alabama, in September, 1962.
The article charged Butts with being corrupt and with
_ betraying his players, and ahat. the players were ‘forced
into the game like ‘‘rats in 2 maze’’ and ‘‘took a frightful
physical beating’. The article charged, in an italici
editorial, Butts, along with Coach Bryant, with being: a
participant in the greatest and most shocking sports scandal |
since that of the Chicago White Sox in the 1919 World
Series. In the same editorial Butts was relegated to a
.Status worse than that of ‘‘disreputable gamblers’’, and a °
corrupt person who, employed to “educate and guide young
men’’, betrays or sells out his pupils.
Plaintiff Butts had been Head. Football Coach at the
/ University of Georgia from 1939 until 1961, at which time
he became Athletic Director. As a member of his pro-
fession, he had been. president of the Football Coaches
Association, and by invitation had coached the College All-
Stars, the Blue-Gray All Star Game, and the N orth-South ‘
All Star Game. Butts has been a lecturer and speaker at
clinics and banquets throughout the United States. Testi-
mony adduced was that plaintiff had been offered employ-
. ment by several college and professional football teams in
, the country and was negotiating with a Texas professional.
team when the article was published, but thereafter nego-
tiations were discontinued. ©
Evidence was introduced that on Match 18, 1963, ‘Butts,
through his attorney, notified the Curtis Publishing. Com-
pany tant the article was false and advised that the article -

r , oe

Ta ™ | Appendia B |
not be published; and that thereafter, pursuant to Georgia
law, Butts requested a retraction from Curtis, which was
refused. It was admitted on the trial that one of Butts’
daughters had telephoned long distance to a Saturday Eve-
ning Post official with a plea that the article be withheld
from publication. The evidence of plaintiff showed that
plaintiff was capable of earning a minimum of $12,008.00
per annum from his football activities, but that since the
publication, all prior negotiations had been terminated.
The defendant filed its answer of justification and
Plead that the statements in the article were true. The de-
fendant thus assumed the burden of proving the trnth of
-the article: See Cox v. Strickland, 101 Ga. 482.
Curtis Publishing Company based its defense on cer-
tain notes taken, by~one. George’ Burnett who made such

notes to a telephone conversation -alleged to have been -

overheard between Coach Bear Bryant, of the University

of Alabama, and Butts, as Athletic Director of the Uni-

versity of Georgia, on a morning in September, a few days
prior to the Alabania-Georgia game. By. some mechanical
defect, Burnett was connected by telephone to the conver-
sation. These rough notes were- kept by Burnett and
revealed to Head Coach Johnny Griffith, of the University
of Georgia, in late December, 1962, or early January, 1963.
Curtis paid Burnett consideration for the story after the
same was-brought it its-attention by Curtis’ Birmingham,
Alabama, lawyers, who were defending Curtis in a libel

suit brought by Coach Bryant because of another article .

in the Saturday Evening Post. ery
_ The evidence presented showed that Frank Graham,
Jr., the author of the article; and Davis Thomas, Senior

Editor of the Saturday Evening Post, knew that Burnett -

had been convicted of “‘bad check writing”. ‘No represen-
tative of the Post looked at the notes before the article

.

‘

Appendia Bx F ‘79a

was published. _According to Coach Griffith of Georgia, de-.
féndant’s witness, ‘*a good number of Burnett’s notes were

_- ineorrect and didn’t even apply to anything Georgia had’’..

. No effort was made by the Post to view the actual game
film, although. the Sports Editor of the Post, one —_
. Kahn, considered that necessary.

Inserted in the article were the following’ direct quo- —
tations, which were subsequently * denied under = by
ng parties quoted: . . , |

(1) Graham wrote thal Burnett had told him that
Larry Rakestraw, Georgia quarterback, . placed his
feet in a certain posifien while on offense, thereby

tipping off the defensive team as to whether ghe

Georgia play would be a run or a pass. Burnett later
~ testified under oath that he ned not told Graham any

such thing.

e (2) Mickey Babb, another Georgia football player,
’ specifically denied the quotation in the article attributed
to him pertaining to knowledge: by the Alabama team
of the Georgia formations and plays. Babb was quoted
in the article as saying the Alabama players knew
Georgia’ 8 key play (eighty-eight pop) “and knew when
Georgia would use it. Babb testified Georgia had no ~
“‘eighty-eight pop”? play... This was ee by Goach

J Johnny Griffith.
«

(3) Sam Richwine, the Georgia trainer, specifi-

cally and categorically denied | the quotation in the

article attributed. to him, which was also to the effect
that Alabama knew Georgia ’s plays. : .

(4) Coach Johnny Griffith categorically denied
three separate and distinct quotes in the article
that were attributed to him.

i ce es

Appendia B ss

_ (5) There were many other instances in which
the individual, credited by Graham as giving Graham
certain information which was inéluded in the article,
categorically denied under oath that any such informa-
tion had been furnished. i

Frauk Graham, Jr., author of the. iti sali Charles

Davis Thomas, the Managing Editor of the Saturday Eve- ~
ning. Post, testified by deposition that they both knew that

after the article was published plaintiff Butts’ career would

be ruined. The author of the article, Frank Graham, Jr.
> testified by deposition at the trial. Curtis’ Editor-in-Chief,

Clay Blair, Jr., and its Senior Editor, Davis Thomas, were

present in court but testified by deposition. Furman Bisher,

of Atlanta, who was paid to assist in the preparation of
the article, testified by deposition. :

The article was clearly defamatory and extremely so.
The Saturday Evening Post had a circulation in excess of
6 million copies per issue. It clainis readers of 22 million.
Butts was unquestionably one of the leading figures in the

. national football picture. The jury was warranted in con-

cluding from the foregoing incidents and the persistent and

- continuing attitude of the officers and agents of the defend-

ant that there-was a wanton or reckless indifference of
ghts. The guilt of the defendant was so clearly.

establishedpby the evidence in the case SO as ‘to have left
the ju choice but to find the defendant liable.

This¥Court does not feel that the award of $60,000.00 ~
for actual dainages was excessive. The evidence showed

plaintiff to be a man in his fifties, and that his earnings
*from his profession had been a minimum of $12,000.00 per
annum.
The Court must now consider the amount of punitive
—- awarded. What is the nature of punitive damages
> «a
;, eX

Appendic B 3 | 81a.

law of Georgia provides’ that in every .tort there iiay be

and for what purpose do we allow their imposition? The =.

- aggravating circumstances, either in the act or the inten: _

tion, and in that event the jury may give additional dam-

ages to deter the wrong-doers from repeating the: trespass.”

Sec. 105-2002, Georgia Code Annotated, 1933.
: This Court, however, is greatly concerned with the
size of the verdict as to punitive damages. An exkmina-
tion has been made of: many cases and the awards made
throughout the several jurisdictions of the United States,
_ both in the Federal and the State Courts. As far as this
Court can ascertain, the largest award ever sustained for
_ Punitive damages by the Appellate Courts was an award
- Of $175,000.00 in the case of Reynolds v. Pegler, 123 F.-

Supp. 36, 223 F. 2d 429. Since the award in the case at
_ hand, the New York Supreme Court, Appellate Division,
October Term, in the case of Faulk v. Aware,Inc., and Hart-

_ mett, has reduced the award of: punitive damages in the

amount of $2,500,000.00 to $150,000.00. The award for

_ * punitive damages in the case.under consideration is more
than’ seventeen times larger than the highest award for °

punitive damages ever sustained. Reynolds v. Pegler,
supra. | Bt Me yl seie

True, fixing the amount of damages is primarily in the
province of the jury, and it has been said, with respect to
libel cases, ‘‘the jury is generally considered to be the su-
preme arbiter on the question of damages”’. Lynch ‘v.
New York Times Company, 171 A. D. 399, 401. The Court,
if possible, should try to avoid invading that field. How-
ever, a Court may not ‘stand by idly when it is apparent
that a verdict is ‘excessive. In Sunray Oil Corporation v.
Allbritton, 188 F. 24 751 (5 Cir. 1951), Judge’ Hutcheson
emphasized that a district judge has a duty to grant a new
trial, not only when the jury’s verdict is excessive as a

@

- PORE STATES e+

82a . - Appendia B

matter of law, but also where ‘‘it i is larger in amount than
the judge thinks it justly ought to be”’. Thus, he said:

. . ‘Whether, i in the opinion of the district judge a
\verdict is excessive as a matter of fact, that is, though _
not contrary to: right reason and; therefore not ex- © >

cessive as a matter of law, itis larger in amount than

' the judge thinks it justly ought to be, or is excessive

as a matter of law, that-is, is so monstrous or inordi-

’ ‘nate in amount as to find no support in right reason,

he has the same power, the same duty, in the one case

as in the other to relieve against the excessiveness: by.

granting a.new trial or requiring a remittitur in lieu.’’

As was held by the late Judge Parker in -the case of
Virginian Ratlway we tadalied v. Armentrout, -166 F’, 2d 400,.
* 408: a — @
“The power nt duty of the trial. deles-tn set
aside the verdict under such circumstances is well.
ae '_+ established, the exercise of the power being regarded
‘as not in derogation of the right of.trial rol ot but.
«,* one of the historic safeguards of that right. * * °

“To the federal trial judge, the law gives ‘stile
power to see that justice is ‘done in causes pending be-
fore him; and the responsibility attendant upon such
“power is his in full measure. While according due re- ;
spect to the findings of the jury, he should not hesitate
to set aside their verdict and grant a new trial in any

~tase where the ends’ of justice se require.’’

.
Pic dits wea chasis hale tibet NLM wis ranked Whaat. el!»

. ae with the cases cited above, this Court
feels:it is its duty to keep a verdict for punitive damages --
within reasonable bounds considering the purpose to be : Wy
achieved as well as the corporate defendant’s wanton or lq

«

= ia a pro ne _—

~ Appendia B 88a

reckless indifference to the plaintiff’s rights. In observ-
ance. of such duty, this Court concludes that the award
for punitive damages in this case was grossly excessive.
It is the Court’s considered opinion that the maximum sum .
for punitive damages that: should have been awarded
against Curtis Publishing Company should be $400,000.00.

- Movant’s Grounds 2, 3> and 4 assert that -the right
given by Section 105-2002, Georgia Code Annotated, 1933, -
to a jury to grant punitive damages violates: the rights
‘guaranteed. by the. Federal Constitution to freedom of
speech and press and to substantive and procedural due
process. These contentions are without merit. ‘However,
these constitutional questions are raised for the first time
by this motion. No constitutional question concerning the
statute was ever raised by movant’s pleadings. The conten-

‘tion that a State statute is unconstitutional is an affirmative
» defense and must be so pleaded in defendant’s answer.
Kewanee Oil & Gas’ Company ‘v. Mosshamer, 58 F. 24 th, 6
712; White Cleaners & Dyers v. Hughes, 7 F. Supp. 1017 °
(D. C. La. 1934, 3 judges). |
Movant’s Ground 5 has been expressly withdrawn by
defendant. . a a

Grounds 6 through 13 of defendant’s motion contend

that error was:committed in- excluding certain evidence as _
' to specific acts of misconduct by plaintiff, defendant con-
tending that this evidence should have been permitted for
' the purpose of impeachment and in mitigation of damages.

The first consideration is Section. 38-202, ‘Georgia pegs

Annotated, 1933, which provides as follows:

*‘The general character of the parties, and espe-
cially their conduct in other transactions, are irrelevant
. Matter, unless the nature of the action* involves, such
‘character and renders necessary or proper the inves-
tigation of such conduct.’? teh |

o

-

| ‘84a ee Appendia B oa

5 {he' defendant contends that under Rule 43(a) of the.
Federal Rules of Civil Procedure, this evidence is admis-
sible in Federal Court. Rule 43(q) provides that in deter- —
mining admissibility,of evidence where there is a conflict
between the State and the Federal rule, the plaintiff is
entitled to the benefit of the more f ble rule. H ambrice
v. F. W. Woolworth Company, 290 \2d 557.

However, on the question with which this Court is
concerned and without passing upon the question as to
whether the matter is substantive or procedural, it appears
‘that there is no conflict between the Georgia rule and. the
Federal rule, as to the admissibility of the specific acts of
misconduct on the part of the plaintiff:

,Under the decision of Co% v. Strickland, 101 Ga. 482,
it is held that the filing of a plea of justification in defense
to an action of libel puts the plaintiff’s character in issue,
and a defendant has a right to show that the plaintiff s
general character is bad, but cannot, in so doing, go into
the proof of specific acts or resart to ——— rumors by:
hearsay. ,

Neither under the majority of federal decisions which
this Court has studied would such tests be admissible. See

Tribune Association v. Follwell, 107 F. 646; Sun Printing &
- Publishing Association v. Schenck, 98 F. 925; Morning
~ Journal Association v. Duke, 128 F. 657.

. .As was said in the Schenck case, supra:

“Tt is not a defense to a libel or slander that
the plaintiff has been guilty of offenses other than
those imputed to him or of offenses of a similar.char-

_ acter; ; and such facts are not competent in mitigation
of damages. The only tendence of such proof is to
show, not that the plaintiff ’s reputation is bad, but
that.it ought to be bad.”’ ;

a

Pattie inline arscdsniindoa ii sa OSE
°

RA ai tt toe bh ere

. Appendia B | . la. .

As further authority sustaining the inadmissibility of .
such evidence, see Wigmore on Evidence, 3d Edition, Sec- -
tion 209, where ‘it is stated that the reputed character of the —
plaintiff in an action of defamation is-admissible in mitiga- ©
tion of damages so long as proof of. character is made by
reputation only; but particular acts of misconduct are
irrelevant and such evidence is universally regarded as
improper. -Pertinent to this issue is the statement of

‘. Richards, C. B., in’ the case of Jones v. Stevens, 11 Price

235, 265:

“I cannot . . . allow defendants to impeach all
the transactions of a man’s life who may have occa-
sion to seek redréss in courts of justice and throw on -
him the difficulty of showing a uniform propriety of
conduct during all his existence. It would be impos-
sible for any man to cdme prepared to meet such a
charge.’’ .

Movant contends that this Court erred in refusing to
charge Section 38-1806 of the 1933 Georgia Code Annotated.
There was no showing that any witness wilfully and know- |
ingly testified falsely, and this Court charged generally on .
the subject of impeachment. See Srnaha v. George, 195

>G@a. 412, =

Ground 15 of defendant’s motion is without merit.
Ground 16 of movant’s motion is without merit. See ,

. Smaha v. George, supra; and Branan v. LaGrange Truck
_ ‘Thnes, Inc., 94 Ga. App. 829. ; is

Grounds 17 and 18 of defendant’s motion contend
error in excluding evidence tending to impeach witiess
John Carmichael. * Such evidence was offered by defendant
to show that witness Carmichael had been convicted in
1933 while witness was a minor in Ohio. The Court, in its

:
. ,
St NR at a aid ences Sh nnn tips “|

86a - . Appendia B

discretion, refused to admit such evidence becdiuse of the —
lapse, of time. See Goddard v. United States, 131 F. 2d
220; Sinclair Refining Company v: eareenied Coast Corpora-
tion, 195 F.2d 626.

The alleged false statements for. the purpose of ob
taining licenses were inadmissible. A witness cannot be
impeached by proving contradictory statements previously
-made by him as to matters not relevant to his testimony ay
and to the case. Grant v. Hart, 197 Ga. 662; Haynes v. a
Phillips, 67-Ga. App. 574. Both Grounds 17 and 18 of the a
defendant’s motion are without merit. :
. Grounds 19, 20, arid 21 do not merit the granting of a
motion for a new trial on any of the grounds as set forth. —
| Ground 22 of defendant’s motion for a new trial as-

serts error because of arguments of plaintiff’s counsel in
the closing remarks to the jury. No objection nor: com-
-plaint was ever raised to any portion of plaintiff’s counsel’s
argument to the jury, although separate arguments were |
made by counsel for both parties on separate days. of the
trial. Arguments were begun on Friday by both counsel
and completed’ on Monday. Much of the argument of
which complaint is now made was offered on Friday, and
-yet on the fallowing Monday, no. objection was raised on
this portion of counsel’s summation.- Ocunsel for de-
fendant consisted of numerous counsel, and yet exception
was only made on-the filing of this motion. It is an ele-
mentary principle of federal law that a new trial will not
be granted where a party seeks to raise for the first time,
on a motion for a new trial, that opposing counsel was
guilty of misconduct in his argument to the jury, where _
’ such conduct was not excepted to during the trial. See 0
Travelers Insurance Company v. Bell, 5 Cir. 1951, 188
F. 2d 725; Thomson v. Boles, 123 F. 2d 487; Hobart v.

ERG EN eat is Tertbiuinnafomn woe, anne

. Sey .

NN

Appendiz B |

-. O’Brien, 243 F. 24 735; Uhl. v. Echols Transfer.Company,

5 Cir. 1956, 238 F. 2d 760. For the reasons stated above,
Ground.22 of defendant’s motio.. is without merit.

‘Ground 23(a) (b) (c) (d) and (e) of defendant’s mo-

tion for a new trial complained of errors in the Court’s

. instructions’ to the jury. The instructions complained of

in ‘these grounds of defendant’s motion were not objected

to at the trial of the case. Rule 51 of the Federal Rules
of Civil Procedure provides in part as follows :

“‘No party may assign as error the giving or the
failure to give an instruction unless he: objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter to which he objects and the

- grounds of his objection. Opportunity shall be giwen

to make the objection out of the hearing of the jury.’’

Opportunity was afforded counsel for defendant to make |
such objections before the jury was permitted to consider:
its verdict. Under the above-cited rule,-the defendant may'
not now complain. See also Pruett v. Marshall, 5 Cir. 1960,
283 F. 2d 436; Williams v. National Surety Corporation, :
5 Cir. 1958, 257 F. 24 771; Moore v. Louisville & Nashville
Railroad Company, Inc., 5 Cir. 1955, 223 F. 24 214. |
‘Defendant’s contention based on Ground 24 of defend-
ant’s motion for a new trial is without merit for the reasons
stated in this Court’s ruling on defendant’s motion for a
judgment notwithstanding the verdict this day filed with
the Clerk of the Court. >. beat
All of the grounds set out in defendant’s motion for
a new trial, excepting Ground 1, are denied for the reasons.
” stated above. = nee
As to the first ground of the defendant’s motion for a
- new trial, a federal trial court has authority to determine

| ; | we siti ee . Se 7 same . 4 ae
88a Appendia Bo Een

whether a verdict is excessive and to grant either a new.
trial or to require a remittitur. State Farm Mutual Auto-
mobile Insurance Company v. Scott, 5 Cir. 1952, 198 F. _
152. ~
An order in compliance with this opinion will be filed
this date. |
| This the 14th day of J saan 7, 1964.

—_— R. Morgan,
United States District Judge.

| ORDER.
(Filed January 14, 1964.)

Now, this the 13th day of January, 1964,

Ir Is-Onverep that the motion of the defendant, Curtis
Publishing Company, for a new trial is granted unless the
plaintiff, Wallace Butts, within twenty (20) days after :he
service of this order, shall, in a writing filed with the. Clerk
of the United States District Court for the Northern Dis-

trict of Georgia, remit all.the punitive damages awarded |
above the’ sum of $400,000.00; the award for general dam-
‘ ages in the amount of $60,000.00 to remain undisturbed.

(Signed) Lewis R. Morean, |
| Lewis R. Morgan, =
United States District Jefe. :

a a

Appendia B - : 89a

OPINION OF THE UNITED STATES DISTRICT
COURT, NORTHERN DISTRICT OF GEORGIA, ON
PETITIONER'S ADDITIONAL MOTION FOR NEW

UNITED STATES DISTRICT COURT
NortHern District or Grorcia
Attanta. Division,

* Crvin Aorroft
No. 8311."
ALLACE BUTTS, a
a "I . ah Plaintiff,
d ; | ho v. es, |
- CURTIS PUBLISHIN G COMPANY,
| . | Defendant.

Defendant, on February 28, 1964, under Rule 60(b) (2),
Federal Rules of Civil aking? gi 28 U.S. C. A,, filed a
motion for a new trial upon the ground of the discovery of

e.

new evidence, contending -that such evidence conclusively

demonstrates the falsity of the testimony of two of the
plaintiff’s witnesses, (Dr. Frank A, Rose and Coach Paul
Bryant, and strongly supports the defense of justification.
The motion is also based upon alleged conduct of plaintiff
in attempting to avoid the conditions on which defendant’s
motion for a new trial was denied and a judgment in plnin-

tiff’s favor was granted. \
Thereafter, defendant filed an additional motion for

_ 4 néw trial pursuant to Rule 60(b), Federal Rules of Civil’ -

Procedure, because of a change in. the law of libel and the
constitutional restrictions placed upon an action for libel

by virtue of the United States Supreme Court decision of

March 9, 1964, in the’ case of New York Times Company v.
Sullivan. oa . | ,

4 ¢

90a | Appendia Bo |
Riven though a final judgment had been entered in the “~
..ease at hand and an appeal from such judgment has been
perfected by the filing of a notice of appeal, this District
Court retains jurisdiction to congider and deny such mo- C i
. tions under Rule 60(b). See Ferrell v. Trailmebile, Inc. m
(5 OC. A., 1955) 223 F. 2d 697. .

The gist of Part I of the. first. motion is

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0023%3A10. Public record. Not legal advice.