Curtis Publishing Company v. Wallace Butts, Wallace Butts v. Curtis Publishing Company

351 F.2d 702

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 1, 1965
• Docket: 21491
• Status: Published

Opinions

SPEARS, District Judge:

This is a libel suit. Curtis Publishing Company^{1 2}published an article in the March 23, 1963 issue of the Saturday Evening Post³ entitled “The Story of a College Football Fix”, characterized by the Post in the sub-title as “A Shocking Report of How Wally Butts and ‘Bear’ Bryant Rigged a Game Last Fall.”

On March 25, 1963, Wally Butts,³ former Athletic Director of the University of Georgia, instituted this action against Curtis. In August, 1963, the case was heard before a jury, which returned a verdict against Curtis for $60,000 general and $3,000,000 punitive damages. Conditioned upon the failure of Butts to remit that portion of the award for punitive damages in excess of $400,000, the trial court granted Curtis’ motion for new trial. At the same time, Curtis’ motion for judgment notwithstanding the verdict was denied. On January 22, 1964, after Butts had filed a remittitur, Curtis’ motion for new trial was denied, and judgment for Butts in the amount of $460,000 was entered. Thereafter, Curtis filed motions for new trial under Rule 60(b), F.R.Civ.P., which were denied on April 7, 1964. This appeal is taken from the judgment of January 22, 1964, and from the trial court’s denial of Curtis’ motions for judgment notwithstanding the verdict and for new trial. We affirm. ' -

Curtis publishes various magazines including the Post. Prior to the publication of the story in question, the editor-in-chief, undoubtedly hoping to ■ attract more readers, had decided to “change the image” of the magazine by making it an “exposé” type, and embarking upon a policy of “sophisticated muckraking”, in order “to provoke people” and “make them mad”.⁴

The article⁵ involved was based upon a claim by one George Burnett that on September 13, 1962 he had accidentally overheard, and made notes of, a long-distance telephone conversation between Butts and “Bear” Bryant, football coach at the University of Alabama, in which Butts divulged certain information about football plays the University of Georgia would use in its opening game against Alabama. Georgia was subsequently defeated 35-0.

About four months after the alleged telephone conversation Burnett contacted various people, including Georgia football coach Johnny Griffith, and then decided to tell his story to the Post. A writer, Frank Graham, Jr., was assigned by the Post to investigate and write the story, and an Atlanta sports editor was retained to advise him. Graham never saw Burnett’s notes, as they were at the time in the possession of Georgia school officials; he did not interview a witness known by him to have allegedly discussed the notes with Burnett on the same day the telephone conversation purportedly took place; he never viewed the game films; and neither he nor anyone else on behalf of the Post ever contacted Butts or Bryant. He agreed that both he and Curtis knew publication of the article “would ruin Coach Butts' career”.

On March 11, 1963, eleven days before the article was published, Curtis was informed by telegram and letter, both sent by Butts’ counsel, of the “absolute falsity of the charges” contained in the proposed story. The record does not disclose that any additional investigation was initiated, and the telegram and letter went unanswered. In addition, a long-distance telephone appeal that the article not be published, made by Butts’ daughter prior to publication, was rejected. After the article was published, Curtis refused a demand that it publish a retraction.

The Post took the position from the beginning that the statements made in the article concerning Butts were true, and that because of their nature it had exercised great care by thoroughly checking every significant source of information as to their truthfulness and accuracy, in advance of publication.

Curtis chose not to use as a witness either the author of the article or any of its editors who had made contributions to the article after it had been submitted. Nor did it use the Atlanta sports editor who had assisted in the preparation of the story. As one of its principal witnesses it called upon George Burnett, who was known by Curtis to have been convicted of writing bad checks, and to be on probation at the time he claimed to have listened in on the conversation.

Both Butts and Bryant testified. Each emphatically denied the charges contained in the article and stated that there was never any conversation between them having as its purpose the fixing or rigging of any football game. Several football players, past and present, expressed their opinions to the effect that the outcome of a football game cannot be rigged or fixed without participation by the players themselves, and that there is no way in which two coaches can rig or fix the outcome of a football game without the players’ knowledge. Other “experts” stated their opinion that the information contained in the “so-called” Burnett notes would not be of any assistance at all to the University of Alabama in preparing for its game with the University of Georgia. In several instances Butts’ witnesses denied direct quotations attributed to them in the article.

In an opinion written by the district judge the facts are stated in some detail,⁶ and no useful purpose could be served by repeating them here, although portions thereof pertinent to specific issues later discussed may be utilized. It is significant, however, at this point, to say that in view of the verdict it rendered, the jury undoubtedly accepted Butts’ version that the story was “willfully, maliciously and falsely” published, as a result of which he has suffered substantial injury to his “peace, happiness and feelings”, as well as to his “honor, reputation and integrity”. As the trial judge saw it: “The article was clearly defamatory and extremely so. * * * The guilt of the defendant was so clearly established by the evidence in the case so as to have left the jury no choice but to find the defendant liable.”⁷ We wholeheartedly agree with that appraisal.

THE ISSUES PRESENTED

Curtis submits twenty-eight specifications of error which are argued in its brief under ten propositions. The issues involved are: (1) Was the article libelous per se? (2) Does the court’s judgment violate Curtis’ rights under the First, Fifth and Fourteenth Amendments ? (3) Did the arguments of Butts’ counsel, not objected to at the trial, require a new trial? (4) Did the court err in excluding certain testimony offered to impeach the credibility of Butts and the witness John Carmichael? (5) Were the extrajudicial statements of George Burnett, and the statements made to him by third person, properly excluded? (6) Did the trial court commit plain error in instructing the jury? (7) Did the trial court err in refusing to charge the jury that it should construe Butts’ testimony “most strongly against him” ? (8) Did the trial court err in refusing to charge the jury that it should disregard the entire testimony of any witness whom it found to have knowingly and wilfully testified falsely? (9) Does the “newly discovered evidence” offered in Curtis’ motion under Rule 60(b), F.R.Civ.P. require a new trial? (10) Is the award of punitive damages so excessive that it cannot be cured by the remittitur ?

THE ARTICLE AS LIBELOUS PER SE

The trial judge charged the jury that the article was libelous per se. This was objected to by Curtis on the ground that Butts was not actively engaged in the profession of a football coach at the time of publication, and, that no special damage was shown.⁸ Curtis took the same position in its motions for directed verdict and for judgment notwithstanding the verdict.

Curtis’ contention in this regard cannot be sustained. This is a libel suit as distinguished from a slander suit.⁹ Under Georgia law, a plaintiff may recover in a libel action where the defamation is apparent from the writing itself, without the necessity of alleging or proving special damages,¹⁰ and it is not necessary that he be engaged in the pursuit of his trade, business or profession at the time of publication.¹¹

But even if the law necessitated a showing that Butts was actively engaged in the profession of a football coach at the time of publication, we think this requirement has been satisfied.

The story was purchased by Curtis on February 22, 1963. Butts resigned as Athletic Director effective February 28, 1963. The article was published in the March 23, 1963 issue of the Post. Thus it may be assumed that Butts was at least temporarily out of work on the day of publication, but it hardly follows that he had completely abandoned the coaching business.

Actually, Curtis admitted in its answer that Butts “has enjoyed a national reputation as a successful and respected member of the coaching profession”, and that he “has been approached and offered employment as head football coach by several colleges and professional football teams in the country due entirely to his reputation as a successful member and leader in his profession.” This admission, in and of itself, would indicate a recognition that Butts was still identified with some phase of football activities.

Upon Curtis’ insistence, its second defense asserting that the statements contained in the article were true, was held to be a valid plea of justification. By interposing this plea, Curtis admitted a prima facie case,¹² but gained the valuable right to open and close. The complaint alleged that “plaintiff’s career as a member of the football coaching profession had been ruined and destroyed by this scurrilous and contemptible defamation.” (Emphasis supplied.) Without regard to any question as to whether the plea constitutes an admission that the remarks were made with malice, it is our view that it necessarily carries with it an admission, not only that the libelous statements were made by Curtis, but also that they were made in relation to Butts “as a member of the football coaching profession”. Under all the circumstances, it is untenable to say that simply because Butts was temporarily out of a job at the time of publication, he was not actively engaged in the coaching business as a means of livelihood.¹³

We hold that the trial court correctly charged the jury that the article was libelous per se, and that he did not err in denying Curtis’ motions for a directed verdict and for judgment notwithstanding the verdict.

CURTIS’ CONSTITUTIONAL RIGHTS

Curtis contends that the trial court’s judgment violates and abridges its rights of freedom of speech and of the press guaranteed by the First, Fifth and Fourteenth Amendments to the Constitution of the United States. It relies upon the case of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), decided subsequent to the trial of this case, in which it was held that in order for a public official in a libel suit to recover any damages he must prove that a statement against his official conduct was published “with actual malice — that is knowledge that it was false or with reckless disregard of whether it was false or not”. 376 U.S. at 279-280, 84 S.Ct. at 726. This holding, says Curtis, “drastically changed the constitutional principles applicable to libel actions”, by announcing new safeguards which “make it manifestly clear not only that the rules of law which were applied in the trial of the instant case were unconstitutional, but also that the result reached by the jury is a patently unconstitutional result which cannot be permitted to stand”.

Countering this, Butts says that the invocation of the constitutional defenses in libel cases has received emphatic and substantial attention by scholars and Courts over the years; that the Times case resulted in no fundamental change of law, but merely gave new sanctions to a long standing rule; and that in any event, Curtis did not invoke those defenses even though they are more broadly stated in the Georgia law than in the Times ease.¹⁴ Moreover, Butts emphasizes that the Times’ constitutional grounds now asserted were not timely raised or preserved below. In fact, they were presented for the first time in the F.R.Civ.P. 60(b) motion filed on March 23, 1964, long after trial.

The record reflects that Curtis did not object to the trial court’s instructions.¹⁵ The Times case was decided by the Alabama Supreme Court on August 30,1962. A petition for writ of certiorari presenting constitutional questions identical to those now being urged by Curtis, was filed in the United States Supreme Court on November 21,1962, four months prior to the filing of the complaint in this case on March 25, 1963.¹⁶ Certiorari was granted in the Times case on January 7, 1963. The jury verdict in the instant case was returned on August 20, 1963, and the trial court’s judgment thereon was entered the same day. A Birmingham, Alabama law firm, which represented the New York Times in the case brought against it by Sullivan, also, together with Curtis’ General Counsel, represented Curtis in a libel suit Coach Bryant had filed against it in the United States District Court at Birmingham, Alabama. A member of this law firm had sent information to Curtis about the alleged telephone conversation between Butts and Bryant, and had talked with the author, Graham, about the matter prior to publication of the story. The same lawyer, together with another member of the firm, sat (as did the General Counsel for Curtis) at Curtis’ Counsel table throughout the trial of this case.¹⁷

While it is true that the Supreme Court did not decide the Times case until March 9, 1964, it would be contrary to reason and common sense to assume that there had not been, at all times during the pendency of this case, full communication among Curtis’ counsel, particularly concerning trial strategy. The facts more than justify our conclusion that Curtis was fully aware when this suit was instituted, and certainly no later than the beginning of trial, that the constitutional questions it now argues had been for some time, and were still being, vigorously asserted in Times.

The Supreme Court said, in Michel v. State of Louisiana, 350 U.S. 91, 99, 76 S.Ct. 158, 160, 100 L.Ed. 83 (1955), that “(t)he test (in making a claim to a constitutional right) is whether the defendant has had ‘a reasonable opportunity to have the issue as to the claimed right heard and determined by the * * * court.’ ” It then cited the case of Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944), for the proposition that “(n)o procedural principle is more familiar to this Court than that a constitutional right may be forfeited * * * by the failure to make timely assertion of the right.”¹⁸

It cannot be said that this case falls within the category of those cases cited by Curtis¹⁹ which hold that if subsequent to a trial or hearing, but before a final decision by the trial or appellate court, the fundamental law is changed, it is the duty of the court to apply the law as amended. Those were “exceptional cases”, where there was no waiver and the court was satisfied that to do otherwise would result in a “plain miscarriage of justice”. In this case, however, even if it is assumed that the basic law has been changed, the situation is quite different. For whatever tactical or other reason²⁰ Curtis sat back and failed to carry the constitutional torch before verdict and judgment, the fact remains that it was charged with knowledge, through its interlocking battery of able and distinguished attorneys, of the issues involved in the Times case, and was afforded every reasonable opportunity to have those same issues heard and determined by the trial court in the case at bar. What the Supreme Court would, or might, hold in Times was not decisive. What was important was that Curtis had to invoke any constitutional claims in an appropriate way, and at an appropriate time. Considering the resources of Curtis, both practical and legal, and the contemporary awareness of constitutional rights pervading even problems of local jurisprudence, Curtis’ complete and utter silence amounted to “an intentional relinquishment or abandonment of a known right or privilege.” ²¹

Without expressing any opinion as to whether Times fundamentally changed the substantive law applicable to libel cases, or whether the charge on malice given by the trial court was adequate under Times,²² or whether Butts was the kind of “public official” contemplated by Times,²³ or whether a reversal might otherwise be required if the constitutional issues had been timely presented, we hold that Curtis has clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times.

THE ARGUMENTS OF COUNSEL

Curtis contends that the jury arguments of Butts’ counsel constituted “significant and fundamental errors which the court may notice without objection”.

The record reflects that Curtis was represented at the trial by several attorneys. One argument for each side was made on Friday and the remaining arguments were completed the following Monday. Much of the argument of which complaint is now made was offered on Friday. Yet, no objection to any portion of the arguments was raised until Curtis filed its motion for new trial nine days after the jury verdict was returned.

The trial court correctly disposed of this matter in the following language:

“It is an elementary principle of federal law that a new trial will not be granted where a party seeks to raise for the first time, on a motion for a new trial, (the objection) that opposing counsel was guilty of misconduct in his argument to the jury, where such conduct was not excepted to during the trial.” ²⁴

If, as Curtis’ counsel now claim, the arguments were, among other things, “grossly improper and inflammatory”, “intemperate and inexcusable”, appeals to passion and prejudice”, “corruptions of the evidence”, “completely unsupported by the evidence”, and “unsworn testimony of counsel”, it is inconceivable to us that they would have delayed so long without raising the slightest hint of an objection. Leeway must often be allowed counsel in objecting to argument lest the objection itself magnify the harm. But to say nothing during argument, the extended week end recess, and for nine days thereafter, leaves us with the conviction that they did not consider the arguments objectionable at the time they were delivered, but made their claim as an afterthought.

Furthermore, after carefully considering the entire record, we do not consider that the arguments belatedly objected to would have required a reversal, even if timely objections had been made. Some of the argument was invited, but the very nature of the case made it virtually impossible to discuss the evidence free of emotion or drama. The editor-in-chief of the Post set the tone and the stage for the attack. He openly boasted that the Post’s new policy of “sophisticated muckraking” was the “final yardstick” of editorial achievement since it meant “we are hitting them where it hurts.” It was no wonder that the author Graham was equally callous in admitting that he knew that “when this article was published that was the death of Wally Butts in his chosen profession” and that “Curtis Publishing Company knew that when that article was published it would ruin Coach Butts’ career.” The policy of the magazine so bluntly stated ²⁵ was by itself more than enough to inflame the jury. Counsel for Butts could only gild the lily.²⁶

THE EXCLUSION OF TESTIMONY

Butts was asked by Curtis’ counsel on cross-examination if he recalled having made a statement over television, on a date prior to the institution of this action, that he “would never at any time and never * * * (had) done anything that would injure the University of Georgia”. He responded that he had made a statement to that effect, but that “as far as my services at the University of Georgia are concerned that represents only my opinion”. Proffered evidence which Curtis asserts “is replete with incidences of Butts’ unfaithfulness and disloyalty to the University of Georgia”, was excluded by the trial court. Curtis insists, however, that the evidence should have been admitted, not only to demonstrate Butts’ true character, but to impeach his credibility as a witness.

We are in agreement with the trial court that proof of Butts’ character could be made by reputation only, and that particular acts of misconduct are irrelevant.²⁷

The rule that “[a] party may be cross-examined to bring out matters, even though they may be collateral, which are inconsistent with the testimony given by him”,²⁸ is not applicable here. The answer given by Butts to the question asked by Curtis’ counsel con-ceming a statement previously made out of court, was not such an affirmative profession of faithfulness and loyalty to the University of Georgia, made at the trial, as would open the door, for the purpose of impeachment, in mitigation of damages, or otherwise, to the admission of alleged incidents of “unfaithfulness and disloyalty” to that institution, either by cross-examination of Butts, or by direct evidence from other witnesses.

Complaint is made that Curtis was not permitted to show that Butts had refused to answer certain questions in his deposition, and that evidence offered as to purportedly false testimony given by Butts in his deposition was rejected. Butts refusal to answer was on advice of counsel. The answers sought were subsequently supplied, but Curtis argues that because of the delay it was denied adequate discovery and thereby “lost valuable time in the preparation of its case”.

The trial judge was clothed with broad discretion in controlling the extent of direct and cross-examination,²⁹ and we cannot say that he abused that discretion in excluding the proffered evidence.

Similarly, we do not think the trial court abused his discretion in refusing to admit evidence that the witness Carmichael, while a minor in Ohio, had been convicted of petty larceny in 1933. The ruling was based upon lapse of time.³⁰

Curtis sought to introduce into evidence certain extrajudicial statements made by George Burnett, and statements made to him by third parties. These included inquiries made by Burnett of the telephone operator and her replies thereto;³¹ a telephone conversation between Burnett and one Milton Flack, purportedly made immediately after Bur.nett had overheard a telephone conversation between Butts and Bryant;³² Burnett’s conversation with one Bob Edwards about the notes he had taken; ³³ Burnett’s statements at meetings with officials of the University of Georgia; and statements of these university officials made in checking Burnett’s story at meetings with him.³⁴ All of these incidents had been reported in the article.

It was, of course, important from Curtis’ standpoint that it show its good faith in publishing the article. The proffered evidence would have tended to show that these statements as set forth in the article had, in fact, been made, and we think the trial court should have admitted it for that limited purpose only. However, the full import of most, if not all, of that evidence got before the jury in some form before the trial was concluded.

In any event, none of the testimony involved related to the real “sting of the libel”, and we do not consider that substantial error was committed in its exclusion. Curtis had the burden to show more than nominal error to secure reversal for rulings of evidence,³⁵ and this it has failed to do.

THE JURY INSTRUCTIONS

Complaint is made that the trial court committed plain and prejudicial error in instructing the jury. No objections to any instructions were made at the trial of the case.³⁶

Rule 51, F.R.Civ.P., provides in part that:

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

Full opportunity was afforded counsel for Curtis to make any objections before the jury was permitted to consider its verdict. Under Rule 61, F.R.Civ.P., all errors which could not change the result of the trial, or which did not affect the substantial rights of the parties, are harmless and must be disregarded. No action taken by the court with respect to any instruction now under attack appears inconsistent with substantial justice, or to have affected the substantial rights of the parties, and we agree with the trial court that Curtis may not now complain.³⁷

THE REFUSAL TO GIVE REQUESTED INSTRUCTIONS

There is no merit to Curtis’ contention that the trial court erred either in refusing to charge the jury that it should construe Butts’ testimony most strongly against him, or in refusing to charge the jury that it should disregard the entire testimony of any witness whom it found to have knowingly and wilfully testified falsely.

The court’s charge fully covered the general rules relating to the credibility of witnesses. The question concerning the credibility of any witness, and whether or not he had been successfully impeached, was left entirely to the jury. There was no showing that any witness had knowingly and wilfully testified falsely, and the evidence was more than adequate to support the verdict, even if the jury had completely disregarded the alleged equivocal testimony of Butts.

THE “NEWLY DISCOVERED EVIDENCE”

In its motion for new trial under Rule 60(b) (2), F.R.Civ.P., Curtis contended that new evidence discovered since the trial conclusively demonstrates the falsity of the testimony of two of Butts’ witnesses, Dr. Frank A. Rose and Coach Paul “Bear” Bryant, and strongly supports the defense of justification.

The trial court rejected this contention because (1) Curtis had not exercised reasonable diligence, (2) the evidence would merely tend to affect the weight and credibility of the testimony of Dr. Rose, and (3) the evidence would not have changed the verdict in this case.³⁸

We are in accord with the trial court’s conclusions, and do not find that he has abused his discretion.

PUNITIVE DAMAGES

The trial judge gave his reasons for requiring the remittitur of all punitive damages in excess of $400,000.³⁹ There is not the slightest suggestion that he thought, or even intimated, that the larger award was based on passion or prejudice. On the contrary, fully aware of the distinction between a verdict excessive in amount which may be reduced by remittitur, and one resulting from improper influences such as passion and prejudice which may not be corrected in this way, the judge necessarily rejected the idea that this verdict had been infected by such destructive elements.

The Georgia Code expressly provides for punitive damages.⁴⁰ Under Georgia law, three things are left for the jury to determine: (1) “when punitive damages shall be allowed”; (2) “the amount of such damages”; and (3) the purpose of the award as “either ‘to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.’ ” ⁴¹ Obviously there are, and can be, no precise standards for these determinations. Not for the first time in the common law tradition, the law turns to the jury. And Georgia prescribes that “(t)he measure of * * * punitive damages * * * is to be fixed by the enlightened conscience of an impartial jury.”⁴² What the “enlightened conscience” of one impartial jury might consider to be fair may not satisfy another impartial jury with an equally enlightened conscience. A wide variance in the amounts of such awards is inescapably inherent in any submission of the issue of punitive damages.

But, of course, no one would suppose that it is left wholly and solely to the jury. As with every other issue traditionally for jury resolution, the trial judge must still determine whether, as a matter of law, the verdict comports with law. The law recognizes that an award of any type of damages — compensatory or punitive — made by a jury free of bias, may be too small or too large. When that occurs — when the judge concludes that the law regards the verdict as too small or too large — then appropriate action must be taken by the court. Reviewing the amount of the verdict and reaching the conclusion that it is more than the law would permit is not, therefore, the equivalent of the judge’s determination that excessiveness is due to a runaway jury, under the spell of passion or bias.

The trial judge had the duty of determining whether as a matter of law (a) any allowance for punitive damages could be made, and (b) what the maximum would be. As to (a), the-trial court not only expressed the opinion that the article was extremely defamatory, and that the jury had no choice-other than to find Curtis liable, but he also thought that there was “ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or not.”⁴³ Upon determining (b) he had then to decide whether to grant a new trial or require a remittitur as to the excess.⁴⁴ The latter is a permissible course and does not infringe upon the Seventh Amendment’s guaranty of a jury trial.⁴⁵ In making his determination as to (b), he pursued the correct standard of keeping the verdict “within reasonable bounds considering the purpose to be achieved as well as the corporate defendant’s wanton or reckless indifference to the plaintiff’s rights/’⁴⁶ Obviously, in deciding the matter the judge had to pick a dollar figure beyond which the law would not go. He selected the sum of $400,000 as the maximum which the law would accept to deter Curtis from repeating the trespass or to compensate the wounded feelings of Butts.⁴⁷ Although the reduction required, and the sum remaining, were each substantial, there was ample basis for the trial court’s judgment.

To have granted a new trial might appear to have been an easier way out. But that is really no solution. On a retrial, the judge could not instruct the next jury as to the dollar maximum of any such verdict. So that jury would be pretty much on its own, under the unavoidably vague, elastic standards prescribed in the Code, as measured by the enlightened conscience of an impartial jury⁴⁸ The trial judge, on the second trial, would then be forced to repeat the process of testing for (a) and (b). If, as urged by Curtis, the determination by the judge that the amount is too much, necessarily means a new trial, it is quite possible that the case would never end. Georgia has prescribed the “punishment” for aggravated willful torts. The law ought not to frustrate the vindication of that policy by an unrealistic procedure. The jury verdict, as reviewed and reduced by the trial judge, is the tort-feasor’s assurance that such damages will not exceed that which the law would tolerate to achieve the Georgia objective of deterring repetition or compensating wounded feelings.

CONCLUSION

This is no ordinary libel case. The publication of the article by the Post, in the face of several specific appeals that it refrain from doing so, was part and parcel of a general policy of callousness, which recogni2ied from the start that Butts’ career would be ruined. The trial judge’s appraisal of the evidence, with which we are in complete accord, was that it was sufficiently strong to justify the jury in concluding that what the Post did was done with reckless disregard of whether the article was false or not.

The case was fully developed during extensive pre-trials, and in a jury trial lasting two weeks. The record itself comprises 1613 pages. We have given full consideration to the entire record, as well as to the more than 650 pages of briefs submitted by both parties, the numerous authorities cited therein, and the oral arguments of counsel. We think that Curtis has had its day in court. It apparently thought so too until the jury verdict was returned. This is attested by the fact that practically all of its present complaints were not even raised until' after the trial.

Believing and so finding that the trial was fair, and that the judgment of the trial court was correct and proper in all respects, it is Affirmed.

In view of our holding, we have given no consideration to Butts’ cross appeal.

1 . Hereinafter referred to as either “Curtis”, “defendant” or the “Post”.

2 . Also referred to herein as the “Post”.

3 . Sometimes hereinafter referred to as “Butts” or “plaintiff”.

4 . See note 25, infra.

5 . The following editorial comment was inserted at the beginning of the story:

“Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. This is the story of one fixed game of college football.

“Before the University of Georgia played the University of Alabama last September 22, Wally Butts, athletic director of Georgia, gave Paul (Bear) Bryant, head coach of Alabama, Georgia’s plays, defensive patterns, all the significant secrets Georgia’s football team possessed.

“The corrupt here were not professional ballplayers gone wrong, as in the 1919 Black Sox scandal. The corrupt were not disreputable gamblers, as in the scandals continually afflicting college basketball. The corrupt were two men — Butts and Bryant — employed to educate and to guide young men.

“How prevalent is the fixing of college football games? How often do teachers sell out their pupils? We don’t know — yet. For now we can only be appalled. — THE EDITORS.”

In the story itself it is stated, among other things, that “(t)he Georgia players, their moves analyzed and forecast like those of rats in a maze, took a frightful physical beating”. Georgia coach Johnny Griffith was quoted as saying bitterly to a friend, “I never had a chance." The next sentence read: “When a fixer works against you, that’s the way he likes it.”

6 . Butts v. Curtis Publishing Co. (N.D.Ga. 1964), 225 F.Supp. 916.

7 . Id. at 919.

8 . In support of this proposition, Curtis cites — Weatherholt v. Howard, 143 Ga. 41, 84 S.E. 119 (1915); Van Epps v. Jones, 50 Ga. 238 (1873) ; Mell v. Edge, 68 Ga.App. 314, 22 S.E.2d 738 (1942); Haggard v. Shaw, 100 Ga.App. 813, 112 S.E.2d 286 (1959); and Estes v. Sterchi Bros. Stores, 50 Ga.App. 619, 179 S.E. 222 (1935). These cases, however, appear to be “delinquent debtor cases” referred to in note 11, infra.

9 . Ga.Code Ann. § 105-701 (libel), § 105-702 (slander).

10 . Floyd v. Atlanta Newspapers, Inc., 102 Ga.App. 840, 117 S.E.2d 906 (1960), the leading case in Georgia, states that words which, if merely spoken, would not be actionable in absence of special damage, may be libelous when printed if false and tend to injure reputation and bring one into public hatred, contempt or ridicule. Ordinarily, only general damages need be alleged in an action for libel.

11 . Ga.Code Ann. § 105-701, defines libel as the “false and malicious defamation of another, expressed in print * * * tending to injure the reputation of an individual and exposing him to public hatred, contempt, or ridicule * * without the requirement that the charges be calculated to injure one in his trade, office or profession. A newspaper libel is described in Ga.Code Ann. § 105-703, as being “[a]ny false and malicious defamation of another in any newspaper, magazine or periodical tending to injure the reputation of any individual and expose him to public hatred, contempt, or ridicule”, again without the requirement that the charges refer to one’s trade, office or profession. Only in the area of slander is a reference to one’s trade, office or profession required. Ga.Code Ann. § 105-702.

The case of Floyd v. Atlanta Newspapers, Inc., supra, note 10, in its definitive statement of the Georgia law of libel explains that written words are sufficient to constitute libel per se if they tend to bring a man into public hatred, contempt or ridicule. Damages will be presumed from the nature of the words themselves and their harmful effect and no proof of special damages is necessary. Where the only possible construction is that the words are libelous per se, upon proof thereof, the only remaining question for the jury is that of damages. See also Restatement of the Law Second, Torts, Tentative Draft No. 11, April 15, 1965, Section 569, wherein Georgia is named as one of the majority of states following this rule, and, as explained in the notes to Restatement of the Law of Torts, 1938, Vol. III, Sec. 569, Comment e, pp. 168-9, it may be libelous to impute misconduct in one’s trade, etc., although he is at the time no longer engaged in the pursuit of the trade, business or profession.

Curtis cites many eases in support of its position (see note 8, supra). However, these are part of a group of cases known in Georgia as the “delinquent debtor cases”, and, as explained by the Floyd case, stand in a class by themselves, and have no bearing on causes of action other than those involving charges that one owes a debt and refuses to pay, or owes a debt long past due. In this isolated situation the charge is, as a matter of law, uniformly held in Georgia, not libelous per se, and it is in these cases that Curtis finds language to the effect that falsely spoken or written words that do not contain a charge made in reference to one’s trade, office or profession are not actionable without proof of special damages.

12 . See Ga.Code Ann. § 105-708 and § 105-1801; see also Baldwin v. Davis, 188 Ga. 587, 590, 4 S.E.2d 458 (1939).

13 . In the Missouri case of Clark v. McBaine, (1923), 299 Mo. 77, 252 S.W. 428 at 432, cited by Curtis, the Court stated that though the plaintiff “had been removed as a member of the faculty, * * * his profession, or means of a livelihood, was still that of a professor of law, and a writer of textbooks upon the law, and the gist of his damages * * * consisted of injury done to his standing as a professor and writer of law.”

14 . In support of his position, Butts cites: “Justice Black and First Amendment ‘Absolutes’, A Public Interview,” 37 N.Y.U.L.Rev. 349 (1962); C. L. Black, Jr., “Mr. Justice Black, the Supreme Court, and the Bill of Rights,” Harpers, February, 1961, p. 63; Caldwell v. Crowell-Collier Pub. Co., (5th Cir. 1947), 161 F.2d 333; Sweeney v. Schenectady Union Pub. Co., (2d Cir. 1941), 122 F.2d 288, aff’d 316 U.S. 642, 62 S.Ct. 1031, 86 L.Ed. 1727 (1942); Henry v. Collins, 158 So.2d 28 (Miss.1963); Louisiana v. Garrison, 244 La. 787, 154 So.2d 400 (1963) ; Louisiana v. Moity, 245 La. 546, 159 So.2d 149 (1963) ; and other pre-Times defamation cases. He points out that the Supreme Court in Times recognizes that “a like rule” has existed for a number of years in some state courts; that the Kansas Supreme Court, in Kennedy v. Mid-Continent Telecasting, Inc., 193 Kan. 544, 394 P.2d 400 (Kan.1964), noted that the Times decision requires no change in the law; that the trial court said (note 23, infra) that Georgia provides this “like rule” by a statute granting a qualified privilege for “[c]omments upon the acts of public men in their public capacity and with reference thereto”, citing Ga.Code Ann. § 105-709(6); and that privilege can be lost by proof of actual malice, citing Ga.Code Ann. § 105-710.

15 . See Rule 51, F.R.Civ.P. Also see note 36, infra.

16 . We have examined the petition for writ of certiorari presenting the constitutional questions, and find that it was filed by the New York Times Company on November 21, 1962. The brief for respondent in opposition was filed on December 15, 1962, and petitioner’s reply thereto was filed on December 29, 1962.

17 . The Birmingham law firm of Beddow, Embry and Beddow, which represented the New York Times in the Supreme Court of Alabama, is also shown to be counsel for the Times in the Supreme Court of the United States. Mr. Roderick Beddow of that firm represented Curtis in the case of Paul Bryant v. Curtis Publishing Company, in the United States District Court in Birmingham, and both he and Mr. T. Eric Embry of that firm sat, along with the General Counsel of Curtis, Mr. Philip H. Strubing, at the Curtis counsel table throughout the trial of this case. Butts’ brief states, without contradiction, that Mr. Beddow “initially ‘sent them (Curtis) this information’ about the alleged telephone conversation and was a principal in the initial work of the author Prank Graham.”

18 . Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955), involved a Louisiana statute requiring any challenge to the composition of a Grand Jury to be made before the end of the term of the Grand Jury, holding that the statute was not unconstitutional, and that since the petitioners had not, under that statute, made timely challenge to the constitutional composition of the Grand Jury, they waived any such right to so challenge the Grand Jury. The court announced that the test was whether the defendant had had a reasonable opportunity to have the issue as to the claimed right heard and determined by the court. On the other hand, in the case of Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955), decided at the same time as the Michel case, the state court had refused to consider the defendant’s motion to quash the indictment filed before his arraignment on the ground of the composition of the Grand Jury, because, by Georgia practice, objections to the Grand Jury must be made before the indictment is returned. The court held that there had been no waiver there, and that due process had been violated, because defendant, a semi-illiterate Negro, had no counsel until the day after his indictment, pointing out that “the right to object to a grand jury presupposes an opportunity to exercise that right.”

In Kewanee Oil and Gas Co. v. Mosshamer, (10th Cir. 1932), 58 F.2d 711, where the constitutionality of a state statute was raised on appeal, the court held that if the constitutionality of a statute is not raised in the pleadings ordinarily it may not be raised at the trial.

Other eases decided by district courts,' and holding that constitutional questions ordinarily must be raised at the trial, are: Alexander v. Daugherty (D.C.Wyo. 1960), 189 F.Supp. 956 (only where failure to raise the constitutional question at the trial was due to ignorance, duress or other reason for which petitioner could not be held responsible, may redress be had, and then if “it is made to appear that there had been such gross violation of constitutional right as to deny the defendant the substance of a fair trial”); Houck v. Eastehester P. U. District (D.C.Alaska 1952), 104 F.Supp. 588, 13 Alaska 674; Mount Tivy Winery v. Lewis (N.D.Cal. 1942), 42 F.Supp. 636; and White Cleaners and Dyers v. Hughes (W.D.La.1934), 7 F.Supp. 1017.

19 . Ziffrin, Inc. v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 621 (1943); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801); and Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941), an unusual case in which the Supreme Court allowed the Tax Commissioner to assert for the first tinje on appeal in the Court of Appeals the taxability of income under another section of the code, but stated that “(o)rdinarily an appellate court does not give consideration to issues not raised below * * * (but) (t)here may always be exceptional cases * * * where injustice may otherwise result * * * ” except where an express waiver has been made.

20 . Butts thinks it can be inferred that “defendant never considered plaintiff to be in any class of ‘public men’ so as to make the defense available.”

21 . Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

22 . The trial court’s charge on malice was, in part, as follows:

“At this point, I think it is well that I should explain to you the meaning of malice under the law of defamation, Malice, in the law of defamation, may be used in two senses. First, in a special or technical sense to denote absence of lawful excuse or to indicate absence of privileged occasion. Such malice is known as implied malice or malice in law. There is no imputation of ill will to injure with implied malice. Secondly, malice involving intent of mind and heart or ill will against a person is classified as express malice or malice in fact * * *

“Where it is established that the defendant was inspired by actual malice in the publication of the defamatory matter, the jury, in its discretion, may, but is not required, to award punitive damages. As previously stated to you, actual malice encompasses the notion of ill will, spite, hatred, and an intent to injure one. Malice also denotes a wanton or reckless indifference or culpable negligence with regard to the rights of others. The purpose of punitive damages is to deter the defendant from a repetition of the offense and is a warning to others not to commit a like offense. It is intended to protect the community and has an expression of ethical indignation, although the plaintiff receives the award. The plaintiff charges that the column was written and published both with actual malice and in utter and wanton disregard of his rights * *

23 . In a second opinion dated April 7, 1964 (See Butts v. Curtis Publishing Company (N.D.Ga.1964) 242 F.Supp. 390, at 393), denying Curtis’ motions under Buie 60(b), the trial judge gave the following as his views4 concerning Butts’ status as a “public official”:

“In the present motion at hand, the defendant contends that plaintiff’s action comes under the Times ruling in that plaintiff was a public official, and that the verdict and judgment was awarded plaintiff as damages for injury to his reputation as a football coach on account of a publication made by the defendant concerning plaintiff’s actions while acting as Director of Athletics at the University of Georgia. In the trial of the case, movant defended the action by entering a plea of justification, and no defense was made or evidence introduced concerning Butts’ position as Athletic Director or as a public official. Georgia law provides under certain conditions communications concerning the acts of public men in their public capacity and reference therewith to be deemed privileged. Georgia Code Annotated, Section 105-709(6). Just where in the ranks of government employees the ‘public official’ designation extends, the Supreme Court in the Times case did not determine. The decision did determine that Sullivan, as an elected city commissioner of Montgomery, fitted into the category of public officials.

“Under Georgia law, members of the Board of Regents of the University System are public officials. Georgia Sessions Laws, 1931, Pages 7, 45. The evidence presented at the trial shows that plaintiff was Director of Athletics at the University for some two years prior to February, 1963, at which time he resigned. The article complained of was published in the defendant’s issue of March 23,1963. The Board of Regents at both the University of Georgia (located in Athens) and the Georgia School of Technology (lo-located in Atlanta) control the athletic programs of the two institutions, but the details are handled at each institution by an athletic association composed of faculty members and alumni, and each is incorporated to facilitate such business transactions as improvement of athletic grounds and equipment at the two institutions. The schedule of athletic contests for each year is approved by the faculty and by the Regents. The separate athletic associations at both institutions are wholly under the control of the Regents and are their agents. For further details of the athletic setup, see Page v. Regents of University System of Georgia, 93 F.2d 887, 891-892. As was stated in the Page case, the ‘coaches’ are also members of the faculty.

“Plaintiff Butts was Director of Athletics at the University. The Athletic Director, along with the various coaches in the Athletic Department, were employed by the separate incorporated athletic association. However, the defendant seeks by this motion to extend the category of ‘public officials’ to one employed as agent by the University of Georgia Athletic Department. Even if plaintiff was a professor or instructor at the University, and not an agent of a separate governmental corporation carrying on ‘a business comparable in all essentials to those usually conducted by private owners’ he would not be a public officer or official. Under Georgia law, the position of a teacher or instructor in a State or public educational institution is not that of a public officer or official, but he is merely an employee thereof. Regents of the University System of Georgia v. Blanton, 49 Ga.App. 602(4), 176 S.E. 673; Board of Education of Doerun v. Bacon, 22 Ga.App. 72, 95 S.E, 753. To hold plaintiff, an employee of the University Athletic Association, a public official would, in this Court’s opinion, be extending the ‘public official’ designation beyond that contemplated by the ruling in the case of New York Times Company v. Sullivan, supra.”

See also: Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163, 140 A.L.R. 1063.

The case of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), cited in the Times case, held that in the reciprocal situation where two goverment employees were suing the director of an important United States Government agency for his alleged libelous conduct, the director, a public official, has absolute privilege, regardless of the existence of malice, in defense of the alleged libel, although his conduct was within the outer perimeter of his line of duty. The policy of this position is to aid in the effective functioning of government by assuring that government officials shall be free to exercise their duties without fear of damage suits with respect to acts done in the course of those duties.

In cases decided since the Times case, the “public official” designation has not been extended. The court, in the case of Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (Nov. 1964), in reversing the conviction of the New Orleans Parish District Attorney for the criminal defamation of eight judges of the Criminal District Court of the Parish of New Orleans, stated that “the public official rule protects * * * a free flow of information to the people concerning public officials, their servants * * * ”, whatever touches upon “an official’s fitness for office is relevant. * * * [A] candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office.” Justice Goldberg, in his concurring opinion, stated that “libel * * * on the official conduct of the governors (of the people) * * * can have no place in our Constitution.”

The Second Circuit, in Pauling v. News Syndicate Company, Inc. (2nd Cir. 1964), 335 F.2d 659, considered the possible extensions of the doctrine of the Times case, stating that a candidate for public office would seem an inevitable candidate for extension, and that once an extension is made, the participant in public debate on any issue of grave public concern would be next in line. Quoting the Times case, the court then said: “(t)he ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ now applied to confer immunity on ‘vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,’ * * * may some day be found to demand still further erosion of the protection heretofore given by the law of defamation.”

The Henry v. Collins and Henry v. Pearson cases, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965), reversed a judgment for the plaintiffs on the ground that the lower court’s charge to the jury on malice was error under the Times and Garrison cases, thus indicating that a County Attorney and a Chief of Police would come within the privilege. Justices Black, Douglas and Goldberg concurred, not due to the error in the charge, but on the ground that such a suit would violate the First and Fourteenth Amendments under the Times case, where the defendant published his criticism of the plaintiffs’ performance of their public duties.

This court in Buckley v. The New York Times (5 Cir. 1964), 338 F.2d 470, after deciding the case on procedural grounds, stated in dicta that “a judicial determination by this Court of the proposition * * * that the principle of (the Times case) should be extended to candidates for public office, must await an appropriate case.”

For other cases decided by district courts, see: Smoot v. League of Women Voters of the Grand Traverse Area (W.D.Mich. 1964), 36 F.R.D. 4; and H. O. Merren & Co., Ltd. v. A. H. Belo Corp. (N.D.Tex.1964), 228 F.Supp. 515.

24 . Supra note 6, 225 F.Supp. at 922. See also: Fidelity & Casualty Co. of New York v. Williams (5th Cir. 1952), 198 F.2d 128.

25 . In the deposition of Clay D. Blair, Jr., editor-in-chief, it was developed that for the first quarter of 1963, Curtis showed a loss of about $1.1 million, compared to a loss in 1962 for the same quarter of $4.7 million; that in 1960 the amount of advertising revenue was $106 million; that in 1961 the figure had dropped to $86 million; that Blair was made a vice-president of Curtis in June of 1962; that circulation is one of the factors that affects advertising revenues; that demography is important, because “all circulation in Russia would not be appealing to General Motors;” that Blair wrote a memo to his staff, which found its way to a national magazine, in which he was quoted as saying: “The final yardstick is the fact that we have about six lawsuits pending, meaning that we are hitting them where it hurts, with solid, meaningful journalism”; that he was not being facetious when he used the phrase “sophisticated muckraking”; that he meant it when he said it and when "he testified; that he was correctly quoted as being “concerned with the image of the Post and in trying to get a new image, portray a different type of magazine”; that he did change the image of the Post; that the Butts issue was representative of the new type magazine Curtis was interested in publishing; that “we have perhaps come * * * 25 per cent of the way with this issue * * * toward the goal of the magazine that I envision”; that this -issue is a step in the right direction; that he was acquainted with the term “muckraking” prior to using it in the interview which led to an article in Newsweek on November 19, 1962; that in the interview with Newsweek'he stated that he intended to “restore the crusading spirit * * * the sophisticated muckraking, the expose in the mass magazines * * * to provoke people, make them mad”; that he further stated in the interview: “But careers will be ruined, that is sure”, and he could not quarrel with the fact that Butts’ career was one of the careers to which reference was made in that statement.

26 . The trial court also pointed out that Butts was unquestionably one of the leading figures in the national football picture; that responsible officials of the Post knew that after the article was published Butts’ career would be ruined; that Butts, through his attorney, had notified Curtis before publication that the article was false; that one of Butts’ daughters had telephoned long distance to a Post official with a plea that the article be withheld from publication; and that after publication Butts had, pursuant to Georgia law, requested a retraction from Curtis, which was refused. The court then commented that the jury was warranted in concluding from all the facts in the case, including “the persistent and continuing attitude of the officers and agents of the defendant that there was a wanton or reckless indifference of plaintiff’s rights.” Supra note 6, 225 F. Supp. at 919.

27 . Note, 6, supra, at 921.

28 . 98 C.J.S. Witnesses § 399; 3 Wigmore, Evidence (3d ed 1940), § 1006(2).

29 . See Roberson v. United States, (5 Cir. 1957) 249 F.2d 737; Carpenter v. United States, (4 Cir. 1959) 264 F.2d 565; Polia-fico v. United States (6 Cir. 1956) 237 F.2d 97.

30 . Supra note 6, 225 F.Supp. at 921.

31 . Curtis says this was offered only to show that a telephone conversation between Butts and Bryant had actually taken place. Butts, however, contends no such limitation was placed on this testimony.

32 . Burnett testified that he had been trying to contact Milton Flack by telephone when he intercepted the alleged call between Butts and Bryant, after which he says he hung up the phone and sat for about twenty or thirty seconds before picking up the phone and again calling Flack’s number. Curtis wanted to prove that Burnett asked Flack: “Is Wally Butts in your office now Milt”, to which Flack is supposed to have replied that Butts was at that time in his office making a telephone call. The court allowed Burnett to state that he called Flack, but excluded as hearsay anything he might have said to Flack.

33 . Bob Edwards was division manager of the company with which Burnett Vas connected. Burnett testified that he had a conversation with Edwards on January 4, 1963 about the notes he had taken on September 13, 1962. The court sustained an objection to the conversation itself on the ground that it was hearsay. On cross-examination, Burnett testified that he did not have his notes with him when he first talked with Edwards on January 4, 1963, but did show them to Edwards some two weeks later.

34 . Curtis contends that the investigation conducted by the officials of the University of Georgia would support Burnett’s credibility, because it demonstated his willingness to cooperate, and to have his story questioned.

35 . Rule 61, F.R.Civ.P.; Jennings v. United States (5 Cir. 1934), 73 F.2d 470, 471.

36 . The claim that certain of the jury instructions violated constitutional rights of Curtis is dealt with in this opinion under the heading “Curtis’ Constitutional Rights”. See notes 15-23, supra.

37 . Supra note 6, 225 F.Supp. at 922.

38 . In his opinion dated April 7, 1964 the trial court fully discussed this matter. (See supra note 23, at 712).

39 . Supra note 6, 225 F.Supp. at 919.

40 . Ga.Code Ann. § 105-2002: “In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.” Also see National Association for the Advancement of Colored People v. Overstreet, 221 Ga. 16, 142 S.E.2d 816. See Division 4, subd. (b) of opinion.

41 . National Association for the Advancement of Colored People v. Overstreet, supra, note 40.

42 . Id.

43 . The trial court said, in its April 7, 1964 opinion (See supra note 23, at 395), that:

“If it were conceded that plaintiff Butts was a ‘public official’, the case of New York Times Company v. Sullivan would not permit the vacating of this Court’s previous judgment, as the ruling in the Times ease does not prohibit a public official from recovering for a defamatory falsehood where he proves ‘actual malice’ ■ — that is, with knowledge that it was false or with reolcless disregard of whether it was false or not. (Italics supplied). In the trial of this case, there was ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or not. See the court’s ruling on defendant’s motion for a new trial dated January 14, 1964. Butts v. Curtis Publishing Company, 225 F.Supp. 916.”

44 . State Farm Mutual Automobile Insurance Company v. Scott (5th Cir. 1952) 198 F.2d 152.

Curtis cites Crowell-Collier Publishing Company v. Caldwell (5th Cir. 1948), 170 F.2d 941, where this Court held that the refusal to set aside a libel verdict of $237,500 was an abuse of discretion. Judge Hutcheson found that “litigants, witnesses, lawyers and jury seemed to regard the contest as a sporting event, a wager by battle, in which the best battler ought to and would winthat the trial judge “held himself a little too aloof from the trial * * *, with the result that the trial got out of hand;” and that “when counsel for defendant made vigorous objections to the argument as highly improper, inflammatory, and prejudicial, and requested the court to instruct the jury to disregard them, the court said merely: ‘Objection overruled. Request denied. Exception noted.’ ” Obviously, the same circumstances were not present in the instant case, where the judge was in complete control, the trial was conducted in an orderly, efficient and proper manner, and no objections whatever were made to the conduct of the trial, or to the arguments of counsel.

45 . Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854; International Paper Co. v. Busby, (5 Cir. 1950) 182 F.2d 790; United States v. Certain Parcels of Land in Rapides Parish, La., (5 Cir. 1945) 149 F.2d 81, 83.

46 . Supra note 6, 225 F.Supp. at 920.

47 . Supra note 6, at 919. Butts, in arguing that the district court was far more lenient to Curtis in reducing the award than was justified, said: “The jury in the ease at bar recognized that a 100 million dollar corporation with a circulation of between six and seven million copies and a readership of approximately 22,000,000 persons can be deterred by no less than three million dollars as a charge for its misuse of a cherished American freedom —the freedom of every man to live un-threatened by calumny. This jury believed that anything less than this amount would merely add to the audacious course of ‘sophisticated muckraking’ upon which the Curtis Publishing Company has admittedly set its sights” See also note 26, supra.

48 . See notes 40 and 41, supra.