Citations
- 145 Cal. App. 2d 761
Full opinion text
FOURT, J.
The defendants Vincent X. Flaherty, sports writer, and Hearst Publishing Company, are here appealing from a judgment entered on a verdict in plaintiff’s favor in the latter’s action for libel. After a five-day trial the jury returned a verdict of $25,000 general damages against both defendants, $2,000 special damages, $500 punitive damages against defendant Flaherty and $7,500 against the Hearst Publishing Company.
On May 14, 1953, Joe Walcott fought “Rocky” Marciano at Chicago for the heavyweight boxing championship of the world. Walcott was knocked down and counted out in the first round.
On May 17, 1953, the Los Angeles Examiner published defendant Flaherty’s account of the Marciano-Walcott fight which critically commented on Walcott’s failure to get to his feet from a sitting position before the count of 10. Therein he also wrote the following concerning plaintiff Nova’s fight with Joe Louis on September 29, 1941, 12 years previously:
“Less creditable were the cowardly appearances against Louis of Max Baer and Lou Nova. . . .
“Nova was like a frightened, screaming child at vaccination time. He didn’t throw a punch, but got hit by only one and seemed happy about the whole defeat. They lugged his carcass and towed it in abject disgrace toward his corner. He smiled bravely in the safety of his dressing room, wiping out the manliness of every victory he had ever won.”
Defendants’ answer admitted the publication, but denied malice and pleaded “That the gist and sting of the words . . . were . . . true,” and also that they “were . . . fair comment and criticism by a newspaper sports writer concerning a subject of interest to a large body of the public . . . voluntarily solicited when he . . . sought public acceptance as a professional entertainer.”
Appellants contend that the jury was erroneously instructed. In an instruction given at the plaintiff’s request, the jury was told: “You are instructed that the publication heretofore read to you is libelous as