Summary
In Kirby the court noted that it did not even consider whether the publication was privileged as an interpretation of an official record.
Summary of this case from Wright v. Grove Sun Newspaper Co., Inc.Opinion
No. 357.
July 3, 1945.
Appeal from the District Court of the United States for the Southern District of New York.
Action by John Kirby against the Pittsburgh Courier Publishing Company, Inc., to recover damages for libel. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Defendant is the publisher of a weekly newspaper, The Pittsburgh Courier, with a large New York circulation among negroes. Plaintiff, John Kirby, is a well-known negro orchestra leader. In its issue of August 7, 1943, the Courier published an article, with the caption, "Billy Rowe's Note Book," reading as follows: "Little Shots About Big Shots — New York, August 5: If John Kirby doesn't report for induction this week, his local draft board will have the FBI track him down." In this suit for libel, Kirby testified that, before this publication appeared, his local draft board, as a result of a pre-induction physical examination, had classified him in Class 4-F. Buchanan, a member of this draft board, testified that on July 28, 1943, he had met Kirby on the street and conversed with him as follows:
"`Kirby, why didn't you go for your induction?' He told me if I recall correctly that he was out of town and I said to him, `That doesn't make any difference. You should have communicated with your Board.' I said, `Now the best thing for you to do is go up and see Mr. Nichols who is the Chief Clerk and get this matter cleared up because it would be very, very embarrassing to you if you were playing on some job and you are picked by the FBI.' I said, `The first one you will blame will be me.'" Buchanan also testified that, on the same day, he had met Rowe and the following had occurred:
"He (Rowe) said to me that Kirby just seen him and was very sore with me and I said `What for?' He said something regarding his status. I don't remember the exact conversation. I replied to him and said, `Look, I told Kirby what to do. If he wants to do it, all right. If he doesn't, I am not interested.' So I went away. That was the source of my information or statement to him."
Kirby testified that he had had no such conversations with Buchanan and Rowe.
Defendant offered in evidence, as its Exhibit A for identification, an article published in The Courier, on August 14, 1943, reading as follows:
"John Kirby Gets a 4-F Draft Classification: Bass Viol Wizard To Continue Career As Top Bandleader. By Billy Rowe (Theatrical Editor). New York, Aug. 12 — John Kirby, bass violin maestro who reached unsurpassed musical heights as master of the `biggest little band' in the country, will be able to continue business as usual, having been rejected by the Army here, because of a stomach ailment. On the Army call line for several months, the little combination leader was given several deferments last spring to fill out existing contracts which were then unfilled by his band. Headline Outfit. One of the best known attractions in the business, Kirby's band has been engaged in some of the finest spots in the country. Before and since the war it played hotels, night clubs and theatres yet to be touched by colored performers. At one time with Maxine Sullivan featured, the band had its own radio program with Canada Lee as commentator. However in recent months the personal manager of the crew found it increasingly difficult to book the outfit due to various rumors that Kirby was just a few months away from induction. Coming in from Baltimore last week the leader insisted that his local draft board grant him a pre-induction physical so that he could know where he stood. The request was granted and Army doctors at the Manhattan induction centre found the maestro suffering with stomach ulcers and classed him in 4-F."
The following colloquy then took place, concerning the admission of this exhibit, between Mr. Williams, Kirby's attorney, Mr. Mandelbaum, defendant's attorney, and the trial judge:
"Mr. Williams: This, respectfully, is strenuously objected to on the ground that it bears a date after this publication; certainly not within the issues here.
"Mr. Mandelbaum: It certainly is competent, your Honor, on the question of mitigation.
"The Court: Well, I don't see how it does.
"Mr. Mandelbaum: Well, we have a situation of malice here.
"The Court: Yes, I know it.
"Mr. Mandelbaum: With your Honor's permission, I should like to argue that question in the absence of the jury, if that is agreeable to your Honor.
"The Court: Well now, we might just as well argue it here. They are as much interested as I am.
"Mr. Mandelbaum: Well, I mean on the legal phase. Of course they are interested in the facts. What I am endeavoring to do is certainly relevant on the question of mitigation.
"The Court: The question of mitigation arises to what you did at or about the time of publication.
"Mr. Mandelbaum: It is a weekly publication and in the next succeeding article the proposed exhibit appeared.
"The Court: There is no pleading of anything of that kind. I will sustain the objection.
"Mr. Mandelbaum: May I glance at the amended answer for a moment?
"The Court: Yes.
"Mr. Mandelbaum: I might say from glancing at the answer that while there is no such defense in haec verba, there is an allegation of lack of malice.
"The Court: Well, lack of malice pertains to the time you published or prior to it.
"Mr. Mandelbaum: I think perhaps your Honor it goes a little further than that and particularly in the case of a newspaper, the activity in relation to the alleged libelous article in and about a period adjacent to the publication date is part of the res gestae, particularly on a question of malice.
"The Court: No. I will sustain the objection."
In his charge to the jury, the trial judge said, among other things:
"If you find that the publication was not true and that it was libelous, then you must find for the plaintiff in such amount as you think will compensate him for the injury that has been done to him. In this connection, however, the defendant calls your attention to the fact that, even if the article as published was not entirely true, it claims it is shown that the information was obtained from reliable sources from the plaintiff himself and from Mr. Buchanan, and that it acted in good faith in placing in its newspaper the words which are now challenged. It argues to you that because of this situation, it has proved mitigating circumstances which are to be considered by you in connection with any award of damages which might otherwise be assessed by you as against the defendant. That is the law but it depends upon whether or not it acted fairly and without malice in such publication, relying upon the facts which you may find it obtained from reliable sources. Here again the defendant has the burden of proof."
"The plaintiff points to the statement in the defendant's answer to the effect that plaintiff was interviewed by the F.B.I., which has not been proven and is untrue, as evidence of the reckless and malicious act of the defendant, and contends that this further statement in the answer, completely unproven, is an exaggeration of the libel, and he should be compensated for that. If you decide that plaintiff should be compensated, you may consider that statement in assessing damages, if you also find that it is a repetition in part and an aggravation of the injury to plaintiff."
At the conclusion of the charge, the following colloquy occurred:
"Mr. Mandelbaum: That portion of your Honor's charge in relation to the contents of the amended answer, which is a court record, I respectfully take exception to. It is my impression that the contents of these papers are qualifiedly privileged; they are not publicized; they are not brought to the attention of anybody; they are not published in the sense of a publication of a libel. I respectfully except to that portion of your Honor's charge.
"The Court: My only purpose in calling the jury's attention to that was as to whether or not that bears upon the conduct of the defendant. In and of itself it is not ground for the awarding of damages.
"Mr. Mandelbaum: I have no further requests."
The jury returned a verdict for the plaintiff, awarding damages of $5,000. From a judgment entered on the verdict defendant appeals.
Delany Lewis, of New York City (Vernal J. Williams, of New York City, of counsel), for plaintiff.
Morris Mitchell, of New York City, for defendant.
Before L. HAND, A.N. HAND, and FRANK, Circuit Judges.
1. We see no merit in defendant's contention that it had a privilege if the publication of August 7, 1943 were made in good faith. Whether that publication would have been privileged had it been an attempted interpretation of an official record we need not consider; for, at best, it was based upon a mere conversation between Rowe and a member of the draft board. Moreover, the jury, as it had a right to do, may have disbelieved Buchanan. Since there was no privilege, plaintiff was not obliged to show actual malice in order to recover compensatory damages.
2. Defendant's Exhibit A for identification was not a retraction. But the trial court erred in not admitting it. The jury should have been allowed to consider it, under proper instructions, in determining whether, if it were read by any persons who read the first libelous publication, it reduced compensatory damages. On a new trial, if punitive damages are in issue, the jury should be told also to consider its bearing on that issue.
3. Since we reverse for the error just noted, we need not consider the alleged error in that portion of the judge's charge to which defendant objected. It was, however, far from clear. On a new trial, the trial judge should charge (1) that the filing of such an answer may be considered solely in its bearing on punitive damages or "smart money" and (2) that such an answer permits the assessment of such punitive damages only if the jury considers that there was actual malice in filing it.
Willard v. Press Pub. Co., 52 App. Div. 448, 65 N.Y.S. 73; Walling v. Commercial Advertiser Ass'n. 173 App. Div. 491, 159 N YS. 329, 331.
Willard v. Press Pub. Co., supra; Marx v. Press Pub. Co., 134 N.Y. 561, 31 N.E. 918; Holmes v. Jones, 121 N.Y. 461, 24 N.E. 701; Cruikshank v. Gordon, 118 N.Y. 178, 23 N.E. 457.
Reversed and remanded.