Faulk v. Aware, Inc.

RABIN, J. This action is in libel. At the time of the alleged libel the plaintiff was a radio and television performer. He had his own show known as the "John Henry Faulk Show", a daily feature of Station WCBS. In addition he made guest appearances on other radio and television programs. There is no question but that he was widely known by the public and in his profession.

The plaintiff charges that the defendants conspired to defame him through the issuance of libelous articles with the express malicious intent of destroying his career in television and radio and that through the issuance of such libelous articles they succeeded in so doing. Chief among these articles was a special bulletin issued and published by the defendant, Aware, and written by the defendant, Hartnett.

The plaintiff was extremely successful in his suit, the jury bringing in a verdict of $ 1,000,000 as compensatory damages as against all three defendants, and $ 1,250,000 as punitive damages against each of the defendants Aware and Hartnett.

The proof in support of the plaintiff's case was overwhelming. He conclusively established that the defendants planned to destroy his professional career through the use of the libelous publications directed to the places where they would do him the most harm. He proved that they succeeded in doing so. The proof established that the libelous statements were not made recklessly but rather that they were made deliberately. The acts of the defendants were proven to be as malicious as they were vicious. The defendants were not content merely with publishing the libelous statements complained of knowing that injury to the plaintiff must follow such publication. They pursued the plaintiff with the libel making sure that its poison would be injected directly into the wellsprings of his professional and economic existence. They did so with deadly effect. He was professionally destroyed, his engagements were cancelled and he could not gain employment in his field despite every effort on his part.

We are greatly concerned, however, with the size of the verdict -- both as to compensatory and punitive damages. True, fixing the amount of damage is primarily in the province of the jury and as has been said with respect to libel cases, "the jury is generally considered to be the supreme arbiter on the question of damages." The court, if possible, should try to avoid invading that field. However, a court may not stand by idly when it is apparent that a verdict is shockingly excessive. A jury's verdict must have some relation to reality and it is the court's duty to keep it so. We find the verdict to be grossly excessive and most unrealistic -- even in the field of entertainment.

The plaintiff's prior earnings are an important factor in assessing the damage suffered when his earnings are cut off. His damage need not be limited to the level of his actual earnings at the time of the libel. His potential earnings may be taken into consideration when there is evidence to enable a jury to assess those. In this case, the plaintiff's potential earnings were fixed by his witnesses in amounts ranging from $ 100,000 to $ 1,000,000 a year. The larger figure was arrived at by reference to the earnings of those who had reached the very top of the profession. We are mindful of the statement of our colleague, Mr. Justice Breitel, in the Grayson case where he said: "in the case of persons of rare and special talents many are called but few are chosen." While the plaintiff's experts testified that the plaintiff would, without doubt, be among the "chosen", it seems that none of these experts, although in the entertainment field, was perceptive enough to contract for his services even though his earnings were never more than about $ 35,000 a year.

Those who testified to potential earnings of between $ 100,000 and $ 250,000 arrived at that estimate based upon what comparable performers were receiving. Yet they gave no explanation as to why the plaintiff's earnings were so comparatively low. In short, the testimony of the experts left plenty of room for speculation.

Upon that testimony, the jury was justified in its obvious conclusion that the plaintiff's prospects for advancement in his profession were extremely good and that his income would rise correspondingly. Despite that however, there is hardly enough justification for the finding of compensatory damages in the amount of $ 1,000,000, even making allowance for his mental pain and suffering. It is interesting to note that at current savings bank interest rates, his yearly income for life would exceed the best of his past earnings. We believe that the compensatory damages should be fixed at a figure no higher than $ 400,000.

It is our considered opinion that the maximum sum that should have been awarded against Aware, by way of punitive damages, is $ 50,000, and as against Hartnett, who by far was the more guilty of the two, the sum of $ 100,000.

Accordingly, the judgment should be reversed, on the law, on the facts and in the exercise of discretion, without costs, and a new trial ordered unless the plaintiff consents to a reduction of the amount of compensatory damages to $ 400,000 and punitive damages as against Aware to the sum of $ 50,000 and as against Hartnett to the sum of $ 100,000, in which event the judgment as modified, should be affirmed, without costs.