*1 length stand objection the first witness and at testified without part appellants. only logi- cal conclusion be drawn this is that from appellee charged themselves considered with the proof, rightly burden of and we think so. accordance what we have heretofore said, hereby, trial court should and it is be,
affirmed.
Affirmed. v. Troutt.
5-2153 Opinion delivered October
[Rehearing denied 1960.] November *2 Bose, MeeJc, House, Nash, Barron & for appellant Alston Jennings, Publishing Co.; Dunaway and Hill. Price
Howell, & Worsham, appellee. Associate This is a libel Justice. Robinson, Sam wherein a Troutt, action Bob was awarded appellee, in the sum of Har- against appellants, P. old Cecil B. Hill and Gazette Dunaway, Publishing publishes the Ar- Company. publishing company newspaper kansas statewide cir- Gazette, having daily culation. and Hill are in the business engaged and operation the distribution of music pinball newspaper reporter employed by machines. Troutt is newspaper published daily the Arkansas Democrat, throughout in Little Bock and circulated the State. complaint 9, 1959, March Troutt filed the On alleging action in the Pulaski Circuit that falsely Court, day February, 26th
maliciously him accused blackmail ac- extortion, cepting “pay-off”; that the defendants “did unlaw- fully, wrongfully, maliciously invent and fabricate, prepared tape recordings purport- cause to certain telephone ed conversations and him interviews” with tape recordings materially and caused such to be altered *3 spliced changed falsify and and so as to distort and purported complaint alleges conversations. The further Dunaway that Hill and entered into scheme and con- spiracy “spurious alleged with the to use the tape recordings purpose and publicly falsified for the of newspaper discrediting plaintiff, Bob with his Troutt, reputation destroying competitive newspa- and his aas per reporter by depicting portraying and him as an ex- thereby exposing tortionist and him to blackmailer, public contempt.” ridicule and alleges hatred, And the com- plaint day further “that on about 27th February, Publishing defendant Gazette Company wilfully falsely maliciously published and and defamatory in the Arkansas Gazette the said articles.” publica The answered and admitted the alleged tion of the conversations between Troutt and Dunaway alleged Hill and and as a defense that such tape recordings conversations as shown did take place. newspaper alleged The account of the conversa per tions is libelous and se, since defendants admitted publication defamatory matter, burden was prove alleged on to them that such conversations between Dunaway Stallings Troutt and and Hill did occur. Whittaker, 55 18 S. 829;W. 33 Am. Jur. support Dunaway’s testimony and Hill’s that place
the conversations with alleged, Troutt took as it Hill February that Dunaway was shown on 26,1958, and a tape it in their bought recording machine and installed at 11th Main of business and in Little Bock. place a tape machine is such as con- telephone will record on of those the tele- knowledge using without versations that purchasing not at the time of appear It does phone. 26th Hill and February Dunaway tape recorder March 4th called Troutt Dunaway but on Troutt, knew making pictures that someone had been told him and to wanted Hill’s of business and place and Dunaway’s about it. Both Dunaway knew anything know if Troutt telephone that had subsequently Hill testified they resulted in Hill’s pay- Troutt which conversations with $2,000 purpose pre- the sum of Troutt ing in the Arkansas Democrat him from publishing venting be detrimental Dunaway’s false articles that would its necessarily Hill’s verdicts business. By Hill did not Troutt that pay found purported conver- as they did, claimed they Duna- tapes produced by sations recorded corroboration of their did testimony and Hill in way tapes evidence, were introduced occur. what true they purport be,
contending they parties; between the of the conversations record spliced or and have not been original tapes are the *4 main- the Troutt respect. hand, in other altered On what- him no paid money that and Hill tains Dunaway and Hill paying Dunaway of the proposition ever that ; that con- only discussed; never to him was money them about when money they had with he versation bim indicated that pin- February, in called to to donate $2,000 wanted organization operators’ ball to that such conver- pursuant Dimes and March of to $2,050 proper donate did organization that sation contends that Dimes. Troutt March of officials of spliced the re- altered and changed, and Hill Dunaway that a deal made appear they make it tapes corded an $2,000 improper bim paid he was whereby mentioned. as heretofore purpose, al- tapes were of his contention In support Mr. Bobert Oakes as witness tered, produced Troutt expert qualified recording Jordan, in of the field de tapes easy vices. He testified that alter like the opinion ones in introduced evidence and that in his those particular tapes spliced. had been altered and Mr. Jor spots tapes dan that there testified or 60 they way have that indicate been altered or another places give and that about 15 of such him absolute as tapes surance that the are altered. Mr. Jordan used tapes point things upon out to the those opinion they he based his have been altered. coupled testimony, Troutt’s with that Jordan, is sub support stantial evidence to verdict favor of the plaintiff. expert Moreover, Bachman, Mr. William S. an by appellants, called as witness testified that in his opinion tapes although not been had altered, he said they having spliced. showed evidence of been Defend produced weighty support ants evidence to their version transpired of what but of course we here do not con weight point only sider the evidence. On question considered whether there is substantial evi support Washington dence to the verdict. Providence Eagle Milling Ins. v.Co. Co., Inc., 214 Ark. W. Bockman 233; Co.,
S.
v. World Ins.
Hill testified that $2,000 he to Troutt in the presence Judge Robert Laster of Mu- Little Rock nicipal Court. Prior to trial of the case, gave discovery deposition Judge due notice that the Laster would be taken. Before the date set for the tak- ing deposition, appellants petitioned of such the trial authorizing for an court order the issuance of a sub- poena production requiring duces tecum of records Judge along Laster’s bank transactions about the time paid Hill claimed to Troutt. theory given This was on the that Troutt have some *5 petition money Judge of the Laster. The was denied. provides 28-256 that § Stat. the motion of party showing good pro- cause the court order the duction of documents, etc. The trial court has wide good determining discretion in whether cause shown production 228 Ark. Huff, of documents. Vale v. say cannot the trial court 2d 861. We 272, asking its where the were abused discretion investigation one who affairs of financial of the an for party called as was never to the case and was in the case. witness complaint alleges that the defendants schemed
The tape spurious conspired together to use and falsified and purpose discrediting publicly recordings the the for following requested plaintiff. the instruc- Gazette by instruct the court: “You are refused tion which was Pub- the defendant Gazette there is no evidence that lishing Company conspired the co-de- schemed or Dunaway the discredit Hill and fendants impeach reputation, you will therefore find and his Company Publishing that is- on the defendant Gazette not err in the court did of the evidence sue.” refusing view Hugh called Patterson, instruction. Mr. appellee, publisher by is the testified he witness Dunaway’s that he was out at Mr. Gazette; the Arkansas press day at conference which the house before transcript tape recordings was of the released to press press; day at that time, and before con- tapes played. No written tran- heard he ference, recordings script made, later, had then been attorney press Duna- conference, before and way to Mr. Patterson written tran- furnished Hill picked recordings. script Patterson drove stay. transcript A infer- up but did not reasonable testimony day is that the before from deducible ence transcript press, to the released agreed attorney and Patterson such a their Hill, therefore err The court did not would be made. release requested give refusing mentioned in- the above struction. appellee’s requested gave instruction No. court pub- that the article “You are instructed as follows: Publishing Company, defendant,
lished February complaint ex- set out 1959, and that it is not actionable itself and thereto, hibits *6 privileged, plaintiff and the is entitled recover Publishing Company, the pensatory damages Gazette such com defendant, fully compen adequately as will publication by defamatory sate him reason of the of the by Publishing Company, article defendant, you not in excess of the amount for, sued unless find plaintiff concerning matters contained in the arti substantially be cle to true or true.” This instruction copied approved by an instruction from this Court Co., Willett, Press Inc. v. State at In the instructions bar, No. 3 properly jury No. 11 court informed the as to damages. the law measure of
Appellants complaint appellee’s instruction 2No. given by court, the trial “You follows: are instructed pub- that in an action for libel where the words or article implies lished libelous of themselves, law some damage publication from the of the libelous matter, if implies any, person, per- and the law further any, publishing if sons, such libelous matter intended the injury the libelous matter is calculated to effect, and in you tapes this case have been told that the article and complained of herein are libelous of themselves unless substantially true or true and that the burden rests prove the defendants to the truth contents of said publications.” contending
In ap- the instruction is erroneous, pellants say imply first law does not some dam- ages publication appel- from the of libelous matter, concede that “where the lants slanderous words are ac- per plaintiff tionable is entitled se, as a matter of required law to in- evidence of actual troduce order to recover damages.” It is substantial hard to understand how un- just quoted the law as der conceded plaintiff correct, who makes out a ease of libel to the satisfaction not entitled to some dam- ages appellants say as a of law. In matter fact, “In an ordinary prove case a has to that actual dam- ages exception were sustained. Libel is made the be- damages.” difficulty proving actual
cause Taylor *7 Gumpert, 968, v. 96 Ark. 131 S. the W. are action- said: “Where the slanderous words Court plaintiff per se, a law the is entitled as matter of able compensatory required damages, to is not to intro- evidence of him to re- duce actual to entitle damages. In such a case the cover substantial prove in order sub- need not actual to recover Murray damages. [Citing Galbraith, 95 stantial 199.]” although publica the contend that Next, jury per to it was error tell the tion was libelous se, injury libelous mat the that the defendants intended weight great authority ter is to effect. The of calculated publication per to is libelous se, is the effect that if the publisher presumed natural conse is to intend the quences of Restatement, Torts, § his own act. Vol. 580; 114; 33 Am. 53 C. J. Jur. S.
Appellants argue that further the instruction weight on comment of the evidence. do not find We respect, and, the instruction defective in regard. specific objection made in that moreover, no was complain Dunaway because, and Hill instruction of newspaper tapes, transcript say, it treats the publication. practical purposes, as it article one For all publication. tape Hill Dunaway was one recordings, made the transcript and fur- thereof,
made a written transcript publishing company, nished such published Gazette. it in the Arkansas given by
Appellee’s No. 12 the court sub- instruction punitive damages. jury the issue of to the mitted ground specifically objected that there on had Gazette showing the financial condition of Gazette. no of been introduced as the worth had been some evidence There phase This and Hill. the other of us concern. The caused considerable has $50,000 for in the sum of verdicts, two returned damages, sum of $50,000 and one part damages. point punitive is whether as judgment punitive damages based can be allowed shedding to stand. At trial evidence introduced light Dunaway, some on the financial of Hill worth but there is no direct to the evidence record financial condition the Gazette. record True, newspaper shows the is the oldest west Mississippi that it has a circulation River and statewide throughout States, some the United circulation meager just is not sufficient to such evidence show how punishment by causing pay all severe the would be pro part punitive rata damages. payment pro $50,000 or rata While part punishment practically no at all thereof *8 person very corporation, may wealthy or be the punishment most severe and ruinous to other. Where joint judgment against there are defendants and is jointly, them the at all bar, as in case or one of such plaintiff judg defendants liable to for the entire Godfrey, ment. Gas Electric Southwestern & Co. v. 178 liability Ark. 894. The individual of joint injured party tort-feasors to the is unaffected Among the Contribution Tort-feasors Act, Stat. provides: 34-1001—34-1009. §§ Section 34-1003 “Noth ing in this act . . . shall be construed to effect the joint liability several tort-feasors’ law common to have judgment payment recovered and made from them indi injured person vidually by injury; for the whole Among our . .” Under contribution . Joint Tort-feas proceed against defendant ors statutes, others injured party pro his liable to the for rata share, right injured party not affect the of the does to recover joint individually collectively. tort-feasors or from involving punitive damages, This kind of action, has given lines of majority rise to two decisions. First, punitive damages holds that since joint against may actually greater tort-feasors result in punishment jointly for one more of those liable, equally than to another who is liable, recover punitive damages par- such is waived when two or more punitive dam- in a case where made defendants
ties are ages may be assessable. subject in A. L. R.
There is an annotation majority support from are cited of the rule cases 1405. In Supreme of and from the states Court the United States Washington Virginia, Texas, Vermont, Missouri, Illinois, support the mi in the other hand, On and Wisconsin. Mississippi, nority from the states of rule cases are cited Perhaps sup Pennsylvania. leading Ohio and Washington Gas-Light majority port Co. that of There L. Ed. 543. Lansden, 534, 19 296, 43 S. Ct. U. S. “Puni Supreme said: States United Court damages beyond above the amount are tive they really are suffered, has punishment upon theory are awarded compensation matter of a mere defendant, plaintiff. all injuries While sustained damages, there is no joined liable for are punitive damages, allowing recovery justice against defendants, based evi several an action ability pay such the wealth and dence only. part As the verdict the defendants one of guil all defendants who one sum must be for plaintiff voluntarily plain ty, that, when it seems to be parties joins must be held to he several *9 punitive damages any thereby to recover waive ability against evidence of the of one founded all, pay to them.” And Leavell of the several App. 89 the Missouri 55, Mo. W. Leavell, 24, v. 114 S. language approval the above of the quoted court Chicago City Supreme also, See, Court. United States Henry, Ostmann, v. 148 142; Ill. 62 R. Co. v. Schafer App. Wunderlich, v. 63; 129 W. Smith 70 S. 644, Mo. Singer App. Mfg. McKee, 210; 79 Ill. v. Lister 426; Ill. Bryant, 54 E. 320. And McAl S. Co. v. Va. Kimberly-Clark Co., N. 473, 173
lister v. Wis. W. having an here, however, said: “Plaintiff the court joint option more of the tort feasors con- to sue one or to more than in this transaction has elected sue cerned Having en- so whatever is to be elected, one. against action be as all such tered such must entered necessarily defendants found liable. Such defendants footing so far as dam- stand ages same purpose for en- concerned; when, hancing may given by punitory jury be for what dam- ages, ability as evidence is offered to the financial of the punitory it cannot but affect the amount of dam- one, ages against to also others, be recovered for these against pro- must be all assessed or none. There no punitory vision of the statute the amount of against separately be assessed the several defendants and no we have even if we had inclination, power so to to do, establish decision such damage. innovation in favor of this element of Where, ability as here, the financial of the several defendants is manifestly majority different, of would be in the vast cases, number of authorities have held the admis- against prejudicial sion of such evidence as the one to be against adopt error we view.” other, support argued minority In of the view it is that a person wealthy may join meager with him means thereby having judgment puni- avoid the risk of Mississippi tive rendered him. In the case of Bell Morrison, Miss. 68, the court said: joint “The action tort of the joined pleas. who in their such it is to case, held be proper damages against to assess all the de- jointly, according fendants judgment, amount which, in their culpable ought pay
the most of them . . . competent would Whatever, therefore, be evidence with competent that view as would one, as to all wealthy prin- defendants. Otherwise a who defendant, implicated cipally wrong might in a of this character, escape payment just damages, by and reasonable having property, others, without character associated in the unlawful act.”
Up to this time this Court has not had occasion to
question,
on
covering
rule
and there is no statute
reviewing
authority
situation. After
all of the
opinion
subject,
we are of
that the better rule is that
damages
punitive
plaintiff
when
waives the
party
made
in a
where
defendant
than one
more
damages
punitive
ordinarily
would be assessable. Com
purpose
damages
pensatory
of mak
awarded for
possible.
nearly
ing
accomplish
injured party
as
To
whole, as
given
judgment
for
Troutt was
this result,
that amount
com
on
for
based
the verdict
$50,000,
puni
damages.
on
pensatory
verdict based
$50,000
compensate
damages
him for
dam
was not
tive
ages
punish
was to
he
but
sustained,
had
wrong
found
had committed.
When
punitive
judgment
dam
based on
a
ages,
is awarded
puni
for
because
it is
of windfall
him,
somewhat
compensatory
damages
assessed unless
cannot be
tive
Kroger
Baking
Gro. &
Co. v.
are awarded.
By it is view, unpunished publishing may go wrongfully a libel punitive judgment having a rendered against minority But hand, him. other if adopted, joint unjustly were tort-feasor be view principle punished. firmly recog- established every country nized all courts and civilized persons go unpunished guilty is better that several than person punished. Having that one innocent be reached judgment it follows that the conclusion, based on punitive damages must be reversed and dismissed. This judgment to the extent leaves intact damages. Appellants argued points, have other all of carefully, have find we examined we no other error. judgment It follows that will reduced to the judgment $50,000, sum be rendered here in favor of appellee for that amount. Since the is reduced a substantial amount, costs appeal appellants. Hodges will be awarded to the Smith,
Ward, J., concurs. *11 par- George JJ., not Smith, Rose McFaddin ticipating. concurring. I Associate Justice, What Ward, Paul question say strictly
have to hereafter is confined to the punitive damages. of agree by majority
I with the for the result reached reasons that in this case was rendered against all three of the that a reason separate judgment against each individual defendant requested, ability the reason that Gazette’s pay shown, was not and for reason that court had this way judgment. equitably dividing no these Under nothing except the court remit the circumstances judgment entirely. could do majority, not reach however, did ground, its decision on the that is above stated reason for this concurrence. majority opinion following contains the state- ‘‘ majority
ment based on what it calls the rule: The punitive damages (such) to recover when waived two parties puni- or in more are made where ’’ damages may tive be assessable. agree majority I do not rule, the so-called and I rely necessary do not think it was on such a in rule necessary, ease. it was not I Since feel that the court specific question should have waited until the is raised carefully briefed this court. logical practical why separate judg- I no see reason against sepa- ments the same cannot, case, rendered rate defendants. It must be conceded that the against punitive damages person can recover and then separate person. in a suit likewise recover another precisely either event court and the acted on only my the same law and the same Not evidence. would multiplicity procedure suits, view avoid a might other require § run 27-814, afoul Ark. Stats. joinder parties. ap I
The view which have set above forth been has proved Faroux, case of E. et Charles v. H. al. H. App. al., et 40 Tex. Civ. Cornwell, S. W. 537; App., et al. v. Walker, Kellar, 796; Tex. Civ. Railway Company Louis Texas v. St. Southwestern Thompson, W. Z. 102 Tex. 89, 113S. W. *12 say: latter mentioned the court had this to “If the defendants or either of them were actuated making charges against Thompson or in malice procuring prosecuting same to be made and in thereby procuring expulsion, same before the his order, plaintiff may jury then the in the discretion of the re- exemplary damages against cover either or all of the said may in such sum as the believe should or either them. be assessed the said defendants necessary, It as in case of actual recovered, subjected that all of the defendants should be to the same some of the defendants have verdict, because acted malice, without combination with and as to others, there be no such defendants would recover exem- damages.” plary
Duncan Crowder.
5-2120
Opinion delivered October Rex W. Perkins, Charles Bass Trumbo and E. J. appellants. Ball, for appellee.
Wade & McAllister, for