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WANAMAKER v. LEWIS

May 6, 1959

Mrs. Pearl A. WANAMAKER, Plaintiff,
v.
Fulton LEWIS, Jr., WWDC, Inc., a corporation and Mutual Broadcasting System, Inc., a corporation, Defendants



The opinion of the court was delivered by: HART

In this action for libel the jury rendered a verdict for the plaintiff. The defendants move for a new trial on the ground that the verdict was excessive and on the further ground that the cross-examination of one of defendants' witnesses by counsel for the plaintiff was prejudicial to the defendants. In their written motion for a new trial the defendants advanced eleven other grounds for the granting of the motion for a new trial, but these eleven grounds were not argued by counsel for defendants in the oral argument on the motion and will not be considered by the Court.

On January 6, 1956, the defendant, Fulton Lewis, Jr., made a radio broadcast over the facilities of the defendant, The Mutual Broadcasting System, Inc., which broadcasting system consisted of some 500 radio stations throughout the United States, including Station WWDC which is owned by WWDC, Inc., another of the defendants in this action. Station WWDC broadcasts in the Metropolitan Area of Washington, D.C.

 In this broadcast of January 6, 1956, defendant, Lewis, criticized the White House Conference on Education and plaintiff's part therein. Defendant, Lewis, also criticized plaintiff's handling of an appeal which came before plaintiff, in her capacity as Superintendent of Public Instruction in the State of Washington, concerning a teacher in Washington State who had invoked the Fifth Amendment before the House Un-American Activities Committee when the teacher was questioned about Communist activities. Defendant, Lewis, further stated that plaintiff had a brother who had been in the State Department, and who fled behind the Iron Curtain, renouncing his American citizenship for Communism.

 The broadcast of January 6, 1956, occurred on a Friday. The defendant, Lewis', next regular broadcast was on Monday, January 9, 1956. On Monday, January 9, 1956, the defendant, Lewis, broadcasting over the same stations of the Mutual Broadcasting System which had carried the original broadcast of January 6, 1956, admitted that he had made a 'horrifying mistake' when he stated that plaintiff had a brother who had fled behind the Iron Curtain and renounced his American citizenship. Defendant, Lewis, admitted that the man he was referring to was not plaintiff's brother, but was the brother of another person whom he had mentioned in his first broadcast. Defendant, Lewis, apologized to plaintiff for this mistake.

 Following the above-mentioned broadcast the plaintiff filed twelve suits in various State and Federal Courts throughout the country, including the action in this Court.

 Prior to the trial in the instant case, the parties filed an agreement or stipulation in the case in which it was agreed that nine of the pending cases in the various State and Federal Courts would be dismissed with prejudice. It was further agreed that in the instant case in the District of Columbia, the plaintiff might claim damages against the defendant, Fulton Lewis, Jr., and the Mutual Broadcasting System, Inc., for the broadcast throughout the United States notwithstanding any other civil action heretofore brought against these defendants or other radio stations affiliated with Mutual Broadcasting System, Inc., and it was agreed that the substantive law of the District of Columbia should govern the rights and liabilities of the parties in this action.

 At the trial of this case the Court ruled that the broadcast of January 6, 1956, was libelous per se and so instructed the jury.

 The jury returned a verdict of compensatory damages against the defendants Lewis, Mutual Broadcasting System and Station WWDC, Inc., as a result of the broadcast in the Metropolitan Area of Washington, D.C., in the amount of $ 45,000. The jury returned a further verdict against the defendants Fulton Lewis, Jr., and the Mutual Broadcasting System, Inc., as a result of the broadcast throughout the country, other than the Metropolitan Area of Washington, D.C., in the amount of $ 100,000. Thus, the jury returned a total verdict for compensatory damages in the amount of $ 145,000. On the question of punitive damages, the jury found that the defendant, Fulton Lewis, Jr., had not acted with such malice of the plaintiff's rights as would entitle the plaintiff to receive punitive damages and awarded no punative damages.

 The first question presented to this Court is whether or not the verdict of the jury is so excessive as to require this Court to grant defendants' motion for new trial. The principles controlling the granting of a new trial for excessive damages in actions for defamation are clearly stated in Newell, Slander and Libel (4th Edition, 1924), page 882, Sec. 790, and are as follows:

 'To warrant the granting of a new trial for excessive damages, however, the damages must be not only more than the court would have awarded if it had tried the case, but they must, especially in actions for defamation, so greatly and grossly exceed what would be adequate in the judgment of the court that they cannot be reasonably accounted for except upon the theory that they were awarded, not in a judicial frame of mind, but under the influence of passion -- of excited feeling rather than of sober judgment, or of prejudice; of a state of mind partial to the successful party and unfair to the other. The damages must be so exorbitant as to shock the sense of the court, and satisfy it, after making a just allowance, for difference of opinion among fairminded men, that they cannot be accounted for except on the theory that in the particular case the proper fair-mindedness was wanting. It must be confessed that the expression of the principles upon which the new trials are to be granted for excessive damages is somewhat general; but the subject is one which, from its very nature, hardly admits of more specific treatment. The motion appeals in a measure to the discretion of the court, but the discretion must be a judicial one. It is not to be granted or denied at the mere pleasure or fancy or feeling of the court. The matter being one which cannot be determined by the application of any definite and determined rules, it is to be acted upon in the exercise of a sound practical judgment in view of all the relevant facts of the particular case.'

 See also 33 Am.Jur., Libel and Slander, Sec. 299, page 283; Slander and Libel by Townshend, 3rd Ed., Sec. 293, page 540; Seawell v. A. S. Abell Co., 34 Wash.Law Rep. 195; Keller v. Safeway Stores, Inc., 111 Mont. 28, 108 P.2d 605; Seested v. Post Printing and Publishing Co., 326 Mo. 559, 31 S.W.2d 1045; Hassett v. Carroll, 85 Conn. 23, 81 A. 1013; Stubbs v. Cowden, 179 Va. 190, 18 S.E.2d 275; Snodgrass v. Cohen, D.C.D.C., 96 F.Supp. 292; Hulett v. Brinson, 97 U.S.App.D.C. 139, 229 F.2d 22; Washington Times Co. v. Bonner, 66 App.D.C. 280, 86 F.2d 836, 110 A.L.R. 393; Garfield Analine Works, Inc. v. Zendle, 3 Cir., 43 F.2d 537; Virginian R. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R.2d 1064; McKee v. Jamestown Baking Co., Inc., 3 Cir., 198 F.2d 551.

 It is for the Court to determine whether, construing the evidence most favorably to the plaintiff, the damages awarded to the plaintiff of $ 145,000 is so excessive as to shock the conscience and lead to the conclusion that the jury was influenced by passion or prejudice.

 Plaintiff, Mrs. Pearl A. Wanamaker, is a resident of Seattle, Washington. The plaintiff entered the field of education during World War I and from that time to the present time, she has worked in one capacity or another directly in the field of education or indirectly in related activities. At the time of the broadcast, January 6, 1956, and for many years prior thereto, the plaintiff was Superintendent of Public Instruction in the State of Washington. The plaintiff was known to educators throughout the entire United States and enjoyed a very high reputation among educators. Plaintiff also enjoyed a very high reputation among persons outside of the educational field who knew her personally.

 In the trial of this case many people prominent in the field of education appeared and testified. Among those testifying for the plaintiff was the President of the National Education Association, Dr. Ruth A. Stout. On examination of this witness by counsel ...


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