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

judge against trial on motions evidence sup- the decision of one a new trial is not to ported for severance or for charge against other. It is in the absence of an be interfered not a “harmless error” violate a funda- discretion, added) (emphasis abuse of procedural designed mental rule pre- vent “mass trials.” States, (1st King v. United 355 F.2d 700 Bova, 1966) and United States Cir. Accordingly, judgment of the district citing Ingram, 1974), (5th F.2d Cir. court is reversed and the case remanded for cases, In both present similar situations. trial, a new not inconsistent with the fore- was improperly held that a defendant was going. defendant where the joined with a second REVERSED AND REMANDED. charged was also second defendant same with additional indictment crimes dates, on different and the first

committed way was in no involved with

defendant Accord, McElroy

those additional crimes. States,

v. United States, (1896); Cupo v. United

L.Ed. 355 U.S.App.D.C. Wright, Procedure, Practice and Federal APPLEYARD, George III, Appellee, T. defendants, We two who hold that engage and without separately concert of PRESS, INC., TRANSAMERICAN d/b/a purpose in crimes of the same independent Overdrive, Appellant. nature, and who therefore not be con No. 75-2012. 8(b), solidated in an indictment under Rule cannot be for trial under Rule consolidated United Appeals, States Court of despite independent the fact said Fourth Circuit. a common party. crimes each involve third Argued March

Where the nexus between two de- trial joined participa- fendants is their Aug. Decided offenses, dates, tion in similar on different defendant, with common third the “same

transaction” or “series transactions” test 8(b) joinder

of Rule is not satisfied and

impermissible. improper joinder defendants 8(b) Rule requires

under Rule our Judge

reversal of Whitehead’s conviction. King, supra,

Aldrich said of Rule joinder “. . .

8: impermissible.” se per

fall within it is As Ingram, supra,

this court stated in at 570: against jointly indicting

The rule defendants

trying different for uncon- a long-established pro-

nected offenses is Its safeguard. pro-

cedural is to allowing

hibit . . . evidence in a against present-

case one to be against

ed in charged the case another offense,

with a completely disassociated danger jury might

with the that the feel Sitton, Greensboro, (Bev- N. Larry B. C. had caused the donations to Cowan, Moore, Jr., Smith, J. Donald erly C. Overdrive’s defense fund to be diverted to a Smith, Hunter, Moore, Greensboro, special Schell & bank account established Apple- C., brief), appellant. yard, N. that some of the funds diverted personal use, to Appleyard’s that some of Smith, Greensboro, B. N. Norman the funds Appleyard collected went to the Patterson, Follin, James, (Smith, & Curtis personal use of one Appleyard’s associ- C., Greensboro, brief), N. for appellee. ates, etc. HAYNSWORTH, Judge, Before Chief Appleyard diversity action, then filed this BUTZNER, and and Circuit WINTER claiming that the articles were libelous. Judges. The case was tried jury, before a which $10,000 awarded the plaintiff compensa- WINTER, Judge: Circuit tory $75,000 damages and dam- Press, (Transameri- Inc. (cid:127) Transamerican ages. motions, post-trial On the district action, can), appeals in this libel judge the punitive remitted damage award $10,- judgment awarding from an adverse $5,000. $5,000 compensatory damages puni- and plaintiff, George tive T. Apple- II. yard, (Appleyard). III affirm. We Appellant’s first contention is that personal jurisdic district court lacked

I. tion over Transamerican. In personam jur is publisher Transamerican of Over- isdiction over the defendant in this case is drive, nationally magazine a distributed for based upon North Carolina General Stat Appleyard originally truckers. came into utes 1-75.4(3), provides jurisdic for contact Overdrive part as effort tion when the case arises out of an act regulations change Interstate (cid:127) committed in state the defendant. restricting Commerce Commission the car- Under law, North Carolina a new tortious riage designated of commodities between act occurs time publication each a libelous is designated places over routes. As a result read in Time, Inc., the state. Johnston Appleyard of conversations between and 321 F.Supp. (M.D.N.C.1970), modified, Parkhurst, Overdrive, Michael editor (4 448 F.2d Cir. 1971); Sizemore v. agreed it was that Appleyard would trans- 14,138 Maroney, N.C. 803 (1964). S.E.2d port by truck an unauthorized load from Here, the proof copies showed that of the Winston-Salem, North Carolina to Wash- offending articles were sent into North Car ington, park D. and this unauthorized olina, and presumably they were read there. load in front of the Interstate Commerce applicable under the long-arm stat Commission. This action was intended to ute, the jurisdiction district court had over force the Commission into a test case. Un- the defendant. agreement, der the initial Overdrive was to of litigation finance the costs either directly However, argues Transamerican through legal a fund' defense process the due clause the four would establish. teenth prohibits amendment a North Caroli out, parties however, falling had a na court jurisdic from exercising personal financing over the of the and the tion suit iden- over Transamerican in this case. The tity attorney who was to be em- contention is that Transamerican’s connec a ployed. consequence, Appleyard As tions with set North Carolina so are tenuous up legal separate original- requiring fund from that it to defend in that state ly by Overdrive. Subsequently, established violates the “traditional play notions fair Overdrive published uncomplimentary justice” two and substantial which are the articles its January, about process touchstones of due test long- for falsely 1972 issue. The suggested jurisdiction. arm articles International Shoe jury’s general for the support finding that Washington, Co. State the “articles published Transamerican L.Ed. 95 complained by plaintiff . statements mag- of a publisher is the Transamerican with actual malice as that term was defined small, national, circulation. albeit azine of instruction,” e., i. with either knowl- are of Overdrive copies month Each edge that the statements were false or This distri- in North Carolina. distributed their truthfulness. accidental, of a calcu- part but not bution Moreover, the ar- lated, program. ordered IV. at a North directed issue here ticles Finally, Transamerican contends resident, damage which Carolina damages should not be al caused could in those articles misstatements involving public figures. lowed in cases to occur in North expected reasonably be Co., Hughes F.Supp. Maheu v. Tool factors, process due these Given Carolina. (C.D.Cal.1974), only authority is the sup to by require- the were not violated standards port position, this but we decline to follow defend in that Transamerican ment it here.1 state. large part

Maheu relied in on Gertz v. Welch, Inc., 323, 418 Robert U.S. 94 S.Ct. III. 2997, (1974). 41 L.Ed.2d 789 While Gertz next contends Transamerican “private plaintiff that a defamation held to warrant insufficient evidence there was liability under a who establishes less de- the jury to the of the case submission than that manding by standard stated New Appleyard concedes liability. issue of damages recover such York Times the at the time that public figure was a he compensate sufficient to him for as are to in order place. took alleged libel 350, injury,” 418 at 94 S.Ct. at actual U.S. verdict, must be there jury’s the support 3012, we do not read Gertz to hold that a of actual convincing evidence and clear figure plaintiff may pu- not recover public is, falsity the of knowledge of malice —that nitive if he meets the burden of reckless disre or in the articles statements concurring New York Times test. The the York falsity. New of their truth gard of Mr. Justice Blackmun in Gertz opinion 254, Sullivan, 84 S.Ct. v. 376 U.S. Co. Times holding only “removing characterizes its as 710, 11 L.Ed.2d presumed punitive and dam- specters the of ages in the absence of New York Times in the Over statements One 354, malice.” 418 at at 3014. “Appleyard had U.S. S.Ct. was that drive articles of Mr. Justice White dissenting opinion funds The appeal for the alteration caused prevent- as majority treat view for the the OVERDRIVE, that donations so damages where a ing the of chan award Fund would be Legal Defense entire plaintiff shows “intentional falsehood or Appleyard account special to a bank neled falsity the truth or for original.) up.” (Emphasis set at 94 S.Ct. publication.” the U.S. informed of was first that he testified Drinkhall, legal some commentators at 3034. While Jimby alteration proposed presages the ulti- posited have that Gertz Overdrive, at and that employee of pub- the mate abolition to opposition his expressed he time plaintiffs,2 public figure lic official sufficient testimony provides This change. Comment, authority See Constitutional Law-First questionable also in is of 1. Maheu Damages figure plaintiff.” in Defamation “public Amendment-Punitive treating plaintiff aas Brought by Figures Firestone, Public Chill First Time, Actions Inc. v. See Rights aspect and Are Unconstitutional Amendment That 47 L.Ed.2d S.Ct. Necessarily Promoting correct, Narrowly directly Maheu, Unless is not even if not Interest, Compelling 28 Vanderbilt L.Rev. State here. relevant Robertson, Defamation and D. In Praise of Gertz the First Amendment: Welch, Inc., do so and this fact has Gertz v. Gertz itself did not Robert at U.S. commentators.3 2997; other recognized been however, due to their posi- S.Ct. tion the limelight, public figures are also we think that the rationale doNor likely more to suffer from malicious attacks here. The applicable Gertz private than are citizens. on the permissible constitutional limitations protect scope of libel is not to state-law This is not a puni case in Gertz, of fact. false statements damage tive award was excessive in rela Rather, potential tion harm inherent York is to purpose of the New Times rule libelous articles. case might Such a raise of official conduct prevent “would-be critics problems first amendment because of the voicing from their being] deterred [from inherent chilling effect of such dispropor criticism, though it is believed to be even vigorous tionate awards on criticism pub though true, true and even is in fact lic officials. See Rosenbloom Metrome proved because of whether it can be doubt Inc., dia, 74-75, 403 U.S. at 91 S.Ct. 1811 expense having in court or fear of (Harlan, J., Here, dissenting). Co., do so.” Times 376 U.S. at New York damages amounted to only one-half of com at 725. This rationale has pensatory damages. seeWe no constitu where, little as in instant application infirmity tional in such an award. case, New York Times malice has been present proven; for where such malice is AFFIRMED. good-faith attempt point

there is no out public.4 only real abuses the There is BUTZNER, Judge Circuit (concurring): character, attack unsubstantiated on the I in opinion, concur the court’s but I reputation good particular name of a believe these additional remarks are war- individual. because ranted of the given instructions Further, punitive damages of awards ad the district court to jury the on the issue of goal. vance a valid state Such awards punitive damages. might engage serve to deter who in others Welch, Inc., In v. Gertz Robert 418 public fig malicious false attacks on the U.S. 323, 349, 2997, 3011, 94 41 ures. S.Ct. L.Ed.2d generally See v. Me 789 Rosenbloom (1974), the tromedia, Inc., 29, private Court a 74, 91 1811, held that 403 U.S. citizen S.Ct. (Harlan, J., punitive damages 29 could recover (1971) only L.Ed.2d 296 dissent- when a publication ing). was made Admittedly figures may “knowledge such have with of greater falsity the reckless disregard access to channels of effective for the truth.” This, and, hence, standard, least, communication realistic very a more the applica- is opportunity ble recovery to counteract false statements to the punitive of damages by than private normally enjoy, public figure. Eaton, individuals The American Inc., 199, Welch, Robert 54 employed Texas L.Rev. 215 test; exceeded the New York Times (1976). they jury but did not stand alone. The was liability instructed how to determine and com- Comment, Libel and Slander —A is Pre- State pensatory damages strictly in accordance with Imposing Liability cluded from Fault Without jury New York Times. The was further told to Damages or Presumed or Punitive the Ab- awarding punitive damages only consider if Malice, Loyola sence of New York Times 6 they liability compensatory found and awarded 256, University (1975); Frakt, 267 Law J. A. damages. punitive consideration of Evolving The of Law Defamation: New York damages predicated upon jury’s was the find- Welch, Times Co. Sullivan Gertz v. Robert ing knowing falsity disregard or reckless Beyond, Rutgers 471, the Inc. and 6 Camden Law J. language strayed truth. The (1975). district court’s 507 beyond only sought New York Times when it concurring brother, 4. Unlike our we find no that, impress jury on the even if it found error in the instructions under which the issue knowing falsity disregard or reckless awarding punitive damages was submitted truth, required it was not to make an award jury. agree to the if While we would that those punitive damages. alone, language instructions stood some of the 229, Defamation, 1349, 1146, 2, D.C. 1164 n. 61 Va.L.Rev. Law of cert. denied, 434, 396 U.S. (1975). 1439-41 L.Ed.2d charged jury district court The case, however, In this upholding with New York Times Co. v.

conformance damages award Sullivan, 279-80, intrude S.Ct. rights. on the defendant’s first amendment (1964), compensato- L.Ed.2d 686 that For the reasons stated in Part III of the public could be to a ry damages awarded opinion, agree court’s I the evidence figure defamatory if statement shows that the the de published defendant it was knowledge were made “with famatory knowledge they articles with disregard with reckless of whether false or disregard were false or with reckless not, however, false or not.” It did was they whether were false or not. Since the this admonition in its instructions repeat punitive damages supported by award of Instead, part punitive damages. it said proper substantial evidence stan under awarded if could be dard, we not apply plain need error were “carelessly published.” the defamation exception Beckley Newspa to Rule 51. Cf. that such emphasized court further Hanks, 81, 82, Corp. v. pers 389 U.S. permissible if the defamato- damages were S.Ct. L.Ed.2d 248 “intentional, malicious ry publication injuring the Plain- and with the erroneously de-

tiff.” These instructions

parted proper standard because from recovery

they allowed that the knew the proof

without that it

defamatory statements were false or of their made them HAZELWOOD, Appellant, Russell Cooperative falsity. truth or Cf. Greenbelt Bressler, Publishing Ass’n. v. ARNOLD, Floyd Penitentiary, U. S. 9-11, L.Ed.2d 6 Appellee. Hanks, Newspapers Corp. v. Beckley No. 75-2005. 81, 82, 19 L.Ed.2d United States Appeals, Court of Fourth Circuit. Although objected the defendant to the issue submission of April Submitted it did not with Rule 51 jury, comply Decided Aug. Rules of of the Federal Civil Procedure the court’s recov objecting to test for the damages. of such Most circuits have

ery appellate reverse for

said that court

plain prevent where necessary error

miscarriage justice the defend despite comply 51. Ed

ant’s failure with Rule (4th Mayes, 373 n. 1

wards F.2d Miller, 1967); Wright Federal

Cir.

Practice and Procedure at 672 protection rights of first amendment improper award of prevention

punitive damages particularly justifies plain error rule. Wil

application York, City

liams v. of New 1974); (2d Founding Church of Cir. States,

Scientology U.S.App. United

Case Details

Case Name: George T. Appleyard, III v. Transamerican Press, Inc., D/B/A Overdrive

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 5, 1976

Citation: 539 F.2d 1026

Docket Number: 75-2012

Court Abbreviation: 4th Cir.