Before FRANK and MEDINA, Circuit Judges, and BRENNAN, District Judge.
This is a libel action based upon a column of defendant Westbrook Pegler, published on November 29, 1949, by defendant Hearst Consolidated Publications, Inc., owner of the New York Journal-American, a New York City newspaper, which had purchased the article from defendant Hearst Corporation, whose King Features Syndicate division had syndicated the article not only to the Journal-American but to a large number of other publications throughout the United States. As federal jurisdiction is based upon diversity of citizenship, the substantive aspect of the case is governed by New York law. The result of the trial to court and jury was a verdict against all defendants in the sum of $1.00 as compensatory damages and, in addition, punitive damages against Pegler in the sum of $100,000, against Hearst Corporation in the sum of 50,000, and against Hearst Consolidated Publications, Inc. in the sum of $25,000, or smart money of $175,000 in all.
On this appeal defendants claim that the column, or at least the greater part of it, was not defamatory, that no award of punitive damages was warranted, especially against the corporate defendants, that the trial judge ruled as matter of law on certain issues which should have been submitted to the jury, and that defendants did not have a fair trial by reason of a variety of allegedly erroneous rulings said to have been prejudicial to defendants.
The controversy revolves about a book review of Dale Kramer's "The Heywood Broun His Friends Recall," which plaintiff wrote for the New York Herald Tribune Book Review of November 20, 1949, some ten years after Broun's death, and the Pegler column "On Heywood Broun and Quentin Reynolds," published in the November 29, 1949 issue of the Journal-American, above referred to. By counterclaim it was alleged that the book review itself was defamatory of Pegler, and this question was not resolved, as the jury disagreed. In any event, defendants claim that, whether or not based upon excerpts from Kramer's book or upon the book as a whole, the effect of what plaintiff wrote was to assert that Pegler had called Broun a liar, that Broun brooded over this allegedly false charge, and that, although suffering from a cold at the time, Broun couldn't sleep or relax and that he died. This is interpreted as a charge of "moral homicide." The Pegler column is supposed to be a reply to this charge. And the first few paragraphs, with well salted digressions, bear some resemblance to a reply, as they state that "Broun was a notorious liar," that he was "a dirty fighter" and "made his living at controversy," and it is broadly suggested that any notion that Broun sank into despondency and finally died because of anything written about him by Pegler was scarcely credible. There were a few shafts in plaintiff's direction also in these opening paragraphs. The Pegler column then continues: "Reynolds gives some false impressions. So I offer some corrective data."
What follows is a scathing denunciation of plaintiff, which the trial judge held had no conceivable relevancy to any part of plaintiff's review of Kramer's book. Many of the statements concerning plaintiff are plainly defamatory per se and the column read as a whole undoubtedly held plaintiff up to "public hatred, contempt, scorn, obloquy or shame." Triggs v. Sun Printing and Publishing Association, 1904, 179 N.Y. 144, 71 N.E. 739, 742, 66 L.R.A. 612.Thus it is asserted in "As Pegler Sees It," the column in suit, "that Reynolds and his girl friend of the moment were nuding along the public road," that the neighbors might not understand, and if "they saw Reynolds and his wench strolling along together, absolutely raw, they would call the State police;" that "as Reynolds was riding to Heywood's grave with her, he proposed marriage" to the widow; that Reynolds "became one of the great individual profiteers of the war" and "cleaned up $2000 of the ill-gotten loot of the Garsson brothers who, with Congressman Andy May, later were convicted of fraud in war contracts"; that he was a "four-flusher," with "an artificial reputation as a brave war correspondent in the London blitz," one of the "'let's you and him fight' school of heroes" and that Clare Boothe had "peeled him of his mangy hide and nailed it to the barn door with the yellow streak glaring for the world to see"; and more to the same effect.
Various and sundry explanations are furnished by defendants to support their contention that these charges are innocuous and susceptible of innocent and harmless interpretations, but these explanations are wholly without merit or substance. For example it is suggested that "[Perfectly] honorable people are nudists," and that "[At] common law, nudism was not a crime." The ride to the grave may have been "years after the date of Broun's death," and the Mosaic Code is cited as imposing "upon a brother the duty of proposing to his dead brother's widow;" and so on.
Defendants' counsel in his brief referred to the part about the "yellow streak" as "political gloating in jesting terms," and it may well be that many readers of the column were highly amused by what they read. But this is a curious and unprofitable sort of jesting, as others may not view the humor in the same light. After all, it is elementary that the alleged defamatory article must be read as a whole.
The trial judge presided with his usual meticulous attention to detail, examining with care the authorities cited in support of the many questions of law pressed upon his attention by defendants' experienced counsel. The part of the charge relative to the defamatory character of the column, including the statement, "[That] column read in its entirety, I charge you as matter of law, is defamatory," was read to the lawyers for the respective parties in chambers and counsel for defendants agreed that it was unexceptionable.
The refusal of the trial judge to charge as requested with reference to paragraphs 12 and 20 of the Pegler column is assigned as prejudicial error. These paragraphs included the statement that plaintiff's "medicine grew too strong even for Collier's" and "a fellow of his politics can do fairly well in Hollywood," also the statement that plaintiff "cleaned up $2000 of the ill-gotten loot of the Garsson brothers." But the innuendoes pleaded in the complaint did not so far exceed the scope of any reasonable interpretation of the language used in the alleged libel as to justify a ruling as matter of law that the innuendoes were unwarranted. The document must be read as a whole, as has already been noted; and the interpretations given in the innuendoes are neither strained nor unnatural. The trial judge properly instructed the jury that if it failed to find that the meanings suggested by plaintiff were conveyed by the words used, then in that event the paragraphs were "out of the case," but, if the language used was found fairly to import and to be understood by the public as having the meanings claimed by plaintiff, the jury should proceed to determine whether or not these paragraphs were defamatory in accordance with the rules given in the general instructions on that subject. These rulings were in accord with well settled New York law. See Sullivan v. Daily Mirror, Inc., 1st Dept. 1931, 232 App.Div. 507, 250 N.Y.S. 420; Mattice v. Wilcox, 1895, 147 N.Y. 624, 638, 42 N.E. 270; Morrison v. Smith, 1904, 177 N.Y. 366, 369, 69 N.E. 725.
Defendants argue that the judgment must be reversed because the trial judge ruled, as matter of law, that Pegler's article of November 29, 1949 "exceeded the limits of the qualified privilege of reply." The claim is made that, under New York law, this issue is one which must necessarily be submitted to the jury. But defendants evidently misconceive the nature of this defense and fail to distinguish the separate functions of judge and jury in the trial of cases in which the qualified privilege of reply is sought to be invoked as a defense.
By way of background it is well to bear in mind that the defense under consideration is one of "qualified" privilege. Thus, even when applicable, it affords no protection to defendants, unless it is found as a fact that the alleged defamatory matter was published in good faith. Accordingly, where the alleged libel is justified by way of defense as a reply to a prior attack upon the defendant by the plaintiff, the New York cases, assuming them to be applicable, place upon the trial judge the duty to determine in limine, as matter of law, whether the content of the alleged libel is pertinent or relevant to the matter contained in the purported initial attack, Guenther v. Ridgway Co., 1st Dept. 1919, 187 App.Div. 593, 176 N.Y.S. 89; Mencher v. Chesley, Sup.Ct.Kings 1948, 193 Misc. 829, 85 N.Y.S.2d 431; Lubliner v. Reinlib, Sup.1946, 62 N.Y.S.2d 212; Lovell Co. v. Houghton, 1889, 116 N.Y. 520, 22 N.E. 1066, 6 L.R.A. 363, and, in this connection, the New York courts have held that the requirement is satisfied if the alleged libel is addressed to the plaintiff's motive in taking the initiative, Collier v. Postum Cereal Co., 1st Dept. 1912, 150 App.Div. 169, 134 N.Y.S. 847. If pertinency is absent, the defense of privilege is unavailable and there is no need for further inquiry. If, however, the court is satisfied that the content of the alleged libel is related to the subject matter of the plaintiff's claimed attack or to the plaintiff's motive in making the attack, the case is an appropriate one for the invocation of the privilege of reply, and the remaining question is whether the defendant's reply was made in bad faith, in which event the defense fails. It is the function of the jury to pass upon the question of whether or not defendant published the alleged defamatory matter in good faith, as this is a subject on which reasonable men may differ. Ashcroft v. Hammond, 1910, 197 N.Y. 488, 90 N.E. 1117; Fowler v. New York Herald Co., 1st Dept. 1918, 184 App.Div. 608, 172 N.Y.S. 423. The authorities relied upon by defendants in support of their contention are either wholly inapposite or are cases in which the respective courts concluded or assumed that the defendants' utterances were pertinent to the antecedent attack or to plaintiff's motive in making it and where it was held that it was the function of the jury to pass upon defendant's good faith, lack of malice and honest belief that the statements made concerning plaintiff were true.
In this case, it is apparent that Judge Weinfeld concluded that the content of Pegler's article was in no way related to the matter contained in Reynolds' book review or to Reynolds' motive in writing it, but was, rather, a wholly separate personal attack upon Reynolds, inspired perhaps by resentment engendered by the references made to Pegler in the book review. We have examined both writings and are persuaded that this conclusion was justified. Consequently, there was no error in dismissing the alleged defense of privilege.
But it is far from clear that decisions relating to the functions of court and jury in diversity cases are governed by state law. See Pierce Consulting Engineering Co. v. City of Burlington, 2 Cir., 1955, 221 F.2d 607. The impact of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, on this question is still in doubt. Prior to that case, it was clear that federal law controlled, Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S. Ct. 383, 75 L. Ed. 857, and the better view would seem to be that no change was wrought by the Erie decision. See State of Washington v. United States, 9 Cir., 1954, 214 F.2d 33, 40; Ettelson v. Metropolitan Life Ins. Co., 3 Cir., 1943, 137 F.2d 62, 64-65, certiorari denied 1943, 320 U.S. 777, 64 S. Ct. 92, 88 L. Ed. 467; Diederich v. American News Co., 10 Cir., 1942, 128 F.2d 144; 5 Moore, Federal Practice (2nd Ed.) 95-104. Applying federal law, we are of ...