author: CULPEPPER, Judge.

text:
    Robert M. McHALE, Plaintiff and Appellee-Appellant, v. LAKE CHARLES AMERICAN PRESS et al., Defendants and Appellants.
    No. 7756.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearings Denied Dec. 1, 1980.

      Jones, Patin, Tete, Nolen & Hanehey, William M. Nolen, Lake Charles, Frank W. Middleton, Jr., of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants and appellants.
    Christopher J. Roy, Alexandria, McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for plaintiff and appellee-appel-lant.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiff, Robert M. McHale, sues the defendant, Lake Charles American Press, and its publisher, W. Hugh Sherman, for damages caused by a defamatory editorial. The trial judge awarded plaintiff compensatory damages in the sum of $150,000, but rejected plaintiff’s claim for punitive damages and attorney’s fees under LSA-C.C. Article 2315.1A. The defendants appeal. Plaintiff also appeals, seeking punitive damages and attorney’s fees.

The district judge has written a thorough opinion with which we agree, except for the denial of attorney’s fees on the grounds that plaintiff is himself an attorney. With the exception noted, we adopt as our own the following opinion of the trial judge:

“This is a defamation action arising out of an editorial published by the Lake Charles American Press on July 21, 1977. Entitled ‘What’s story behind McHall reappointment?’, the editorial attacked the reappointment of Robert M. McHale as City Attorney of Lake Charles. It made a number of statements critical of him. In his petition, McHale alleged several statements were actionably defamatory. At the beginning of trial, he announced he would concentrate on but one. The Court does likewise. That statement is:
“No bond buyer would buy a nickel’s worth of securities on McHale’s opinion.

“Plaintiff McHale is an attorney. Defendant Lake Charles American Press, Inc., is the corporate owner of the newspaper ‘American Press’. Defendant W. Hugh Shearman is the publisher. He is also the author of the above quoted statement.

“McHale has practiced law in Lake Charles since 1956 when he graduated from Tulane University Law School and was admitted to practice in Louisiana. In 1965 he was appointed City Attorney for Lake Charles. Two years later he became attorney for the Lake Charles Harbor and Terminal District, representing the Port of Lake Charles. One of his duties for these public bodies was legal advice in public finance. As such, he was involved in numerous issues of certificates of indebtedness, paving certificates and sewerage certificates issued by the City, and certificates of indebtedness issued by the Port. Most of these securities were sold to investment buyers on the strength of his opinion alone, but for the larger issues he associated the services of a law firm in Baton Rouge, Benton, Benton & Benton, whose sphere of recognition as bond specialists was broader than his.

“In his petition against these defendants, filed five days after the editorial, McHale alleged that the statement attacked his professional competence, particularly his competence in his specialty legal field of bonds and other public securities; that the publication caused him loss of reputation, respect and integrity, both in his private and in his professional life; and that the publication was made with actual knowledge of its falsity or with reckless disregard of whether or not it was false. He asked for damages.

“Defendants responded with the defense that the statement was true, or substantially so, and, in the alternative, they denied that they were culpably aware of its falsity or in reckless disregard of whether or not it was false.

“The editorial is here reproduced in its entirety. The statement sued on appears at the end of the fifth paragraph.

“LAW

“McHale was a public official. This case must accordingly be decided on the principles established by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The Louisiana Supreme Court in Kidder v. Anderson, 354 So.2d 1306, at 1308 (La.1978), states the New York Times standard regulating recovery of damages by a public official claiming defamation:

“A public official may not recover damages for a defamatory statement, even if false, relating to his official conduct ‘unless he proves that the statement was made with “actual malice”-that is, with knowledge that it was false or with reckless disregard of whether it was false or not’. New York Times Company v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726,11 L.Ed.2d 686 (1964). Moreover the public official plaintiff must meet this burden not merely by a preponderance of the evidence, but with ‘clear and convincing proof’. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974).”

“The United States Supreme Court recently said in Herbert v. Lando, 441 U.S. 135, 99 S.Ct. 1635, at 1645, 60 L.Ed.2d 115 (1979):

“[I]n the 15 years since New York Times, the doctrine announced by that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures. Curtis Publishing Co. v. Butts [388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094] supra; St. Amant v. Thompson [390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262] supra; Gertz v. Robert Welch, Inc., supra; Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976). At the same time, however, the Court has reiterated its conviction-reflected in the laws of defamation of all of the States-that the individual’s interest in his reputation is also a basic concern. Time, Inc. v. Firestone, supra, at 455-457, 96 S.Ct., at 966; Gertz v. Robert Welch, Inc., 418 U.S., at 348-349, 94 S.Ct., at 3011.”

“There are no concrete guidelines applicable to specific fact situations by which proof of knowing or reckless falsity can be measured. Reckless disregard will depend for its ultimate definition on the marking out of its outer limits through a case by case adjudication. St. Amant v. Thompson, 390 U.S. 727 at 730, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). ‘[T]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of its publication.’ Id., 88 S.Ct., at 1325. Neither negligence nor failure to investigate on the one hand, nor ill will, bias, spite, or prejudice on the other, standing alone, are sufficient to establish either a knowledge of the falsity of, or a reckless disregard of the truth or the falsity of the materials used. But evidence of negligence, of motive and intent, may be adduced for the purpose of establishing by accumulation and by appropriate inferences, the fact of a defendant’s recklessness or of his knowledge of falsity. Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), Goldwater v. Ginzberg, 414 F.2d 324 (2nd Cir. 1969), cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). Herbert v. Lando, supra, discusses at length the range of permissible evidence going to prove knowledge or reckless disregard: ‘Courts have traditionally admitted any direct or indirect evidence relative to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages’. 99 S.Ct., at 1643. Also, ‘to be liable the alleged defamer of public officials . . . must know or have reason to suspect that his publication is false’ and the ‘proof of the necessary state of mind [can] be in the form of objective circumstances from which the ultimate fact [can] be inferred’. 99 S.Ct., at 1641.

“The Court will now proceed to discuss this ‘state of mind’ evidence, remembering as mandated by Kidder v. Anderson, 354 So.2d 1306, at 1308 (La.1978) that state of mind must be judged:

“... not on the basis of an evaluation of sworn testimony at a trial (after full opportunity to rebut accusations) but rather on the basis of information available to the [news personnel] at the time of publication.”

“THE EVIDENCE

“The elements of plaintiff’s case are (1) publication, (2) defamation, and (3) knowing or reckless falsity.

“The first two elements, publication and defamation, present no difficulty.

“There is no question that the statement was published, that is, actually communicated to others. The American Press is a daily newspaper with wide circulation throughout the southwest area of Louisiana where plaintiff is engaged in the practice of law.

“The defamatory effect of the statement is apparent with equally convincing clarity. No one could dispute this. No witness did. According to the testimony of attorneys, bankers, investment experts, public officials, a clergyman, and others, McHale enjoyed a good reputation generally, and a good reputation specifically in the field of public finance. The statement ‘No bond buyer would buy a nickel’s worth of securities on McHale’s opinion’ directly attacked and damaged his reputation within his profession. It articulated as a fact a condemnation that portrayed him as a totally incompetent bond attorney.

“What would this sentence in context convey to the ordinary reader? It was inevitable, in my opinion, that the great majority of readers interpreted it exactly for what it said, that McHale’s opinion on securities was worthless to any bond buyer. Since he had been identified in the editorial earlier as an attorney who ‘has lived well at the public trough ... reaping thousands ... in personal wealth from fees he has been paid for bond issues, legal opinions and other assorted fees’, I believe the average reader got the impression that not only was he an incompetent attorney, whose opinions on securities were worthless, but that there was also some dishonesty connected with his acceptance of fees for bond issues and legal opinions without having rendered a legal service. The statement was defamatory.

“Most of the evidence in the case focused on the third element, knowing or reckless falsity. Before going into a point by point analysis of the evidence as it bears on conduct and state of mind, it is necessary to briefly discuss the editorial’s subject matter and the history of that subject matter.

“A year and a half before this editorial was written, McHale had resigned his post as City Attorney, retaining his job as Port Attorney but otherwise devoting himself full time to his private law practice. In 1974 he had been under considerable fire from the newspaper because of a transaction in which a corporation owned by him and four friends had business dealings with the State of Louisiana. This corporation, Ryan St. Properties, Inc., leased from its owners a building on the downtown mall of Lake Charles formerly occupied by Sears, Roebuck. Knowing that the State was interested in moving its scattered welfare offices to one location, the corporation succeeded in negotiating a lease with the State to house this office in the Sears building. The Press criticized this transaction in a series of some 19 news articles during 1974, on the ground that since the five owners, including McHale, were political figures, political influence was apparent, and also on the ground that the lease rate to the State was excessive. This transaction will hereafter be referred to as the ‘Sears lease’. It is one of the stated editorial reasons for the Press’ opposition to McHale’s reappointment, which occurred by appointment of the Mayor and approval of the City Council on July 6, 1977.

“The editorial, it can be seen, sets out two basic reasons for the newspaper’s opposition to plaintiff’s reappointment: the first, in the language of the editorial itself, was the ‘fees he has been paid for bond issues, legal opinions and other assorted fees’; the other, his involvement in the Sears lease.

“To prove that the defamers knew or had reason to suspect that the editorial statement was false, plaintiffs evidence focused on conduct and state of mind, and objective circumstances from which the ultimate fact might be inferred. The evidence of knowing or reckless falsity may be grouped into the following categories:

“1. The news articles published earlier about the Sears lease.
2. The publisher’s knowledge of exculpatory information (the appraisals) about the Sears lease which he failed to disclose to his editors or the reading public.
3. An American Press reporter’s personal interview with McHale one or two days before the editorial was published, and the contents of a related news article published in the same edition of the paper as the editorial on July 21, 1977.
4. The preparation of the editorial and its contents.
5. Numerous prior legal advertisements in the newspaper naming McHale as having rendered the approving legal opinion on a number of offerings of securities.
6. The publisher’s personal knowledge based on his membership on the Board of Directors of a local bank, and
7. Other evidence.

“The Court will proceed now to a discussion of these seven categories.

“1. The Sears Lease

“The Sears lease came to light in early 1974. It was exhaustively treated in news articles throughout that year. The difference between the rent paid and the rent obtained suggested a substantial profit. The rent paid was $3,000 a month. The rent from the State called for $17,000 a month. Calculated on a ten year primary term, the square foot rent obtained was $5.50 per year. Among other conditions of this recorded lease, the company bound itself to completely renovate the building in accordance with detailed plans and specifications, pay base rate utilities, and purchase land to provide a parking lot for 200 cars.

“Beginning January 23,1974 and continuing through August 27, 1974, the American Press published 19 news articles about this lease. Sixteen named McHale and the others. These articles suggested that the State paid too much rent based on the visible disparity between the square foot rental paid by the lessors and what the State paid them. There was also the suggestion of political patronage because the five lessors were supporters of the Governor of Louisiana. The headlines employed words like ‘sweet deal’, ‘skullduggery’, ‘robbery’ and ‘fraud’.

“Plaintiff offers these articles as the first evidence of state of mind. He says that although they appear as news articles, they clearly reveal the Press’ opinion of the Sears lease and its design to impress that opinion on its readers. He urges that this design was achieved by slanting, the deliberate and repetitious use of facts favoring its interpretation of the lease, and the suppression of equally known facts which had they been published, would have given the reader a choice of what to believe.

“The Court has carefully read these 19 news articles. Most of them appear to be somewhat lacking in objectivity. They partake more of the style of an advocate than that of an unprejudiced journalist. One gets the impression that by emphasis, connotation and repetition, the authors were intent on developing a precise theme, that the transaction was fraught with politics and a cheat to the public fisc. At the trial, when asked to explain what hard evidence existed of political manipulation and excessive rent charged to the State, the answers by defense witnesses were uniform: all five lessors were known to be political supporters of the Governor and the lease to the State on its face showed a large profit when compared to the price originally paid by the investors. Beyond that, these witnesses were either unable or unwilling to state facts which reasonable minds would expect to exist to bridge the gap between suspicion of wrongdoing and wrongdoing itself.

“However slanted these news articles may have been, they are First Amendment protected.

“It should also be observed that McHale was not singled out for special treatment in any of these 19 articles. The condemnation of political influence and excessive rent was leveled equally on all five of the participants.

“2. The Appraisals

“Three years later the editorial of July 21, 1977 was published and it said:

“McHale is the man, you may recall, who teamed with three [sic] other persons with political clout to wring over a million dollars in profits from the State when the group leased the former Sears building on the downtown mall.

When this language was penned, W. Hugh Shearman knew something that neither his editors nor the reading public knew. He knew there existed three real estate appraisals which unanimously indicated that the rent was not excessive, but that in fact it was representative of fair market lease value.

“These appraisals came about in the following manner: Back in 1974 these five investors, smarting under the pain of the 19 news articles and wanting to prove that the lease was not unfair to the State, suggested that appraisals be obtained by all interested parties. The evidence convinces the Court that the Governor, the investors, and the Press agreed that each would procure an appraisal. Appraiser Richard Pease of Lake Charles completed one for James Sud-duth (one of the investors) on October 28, 1974. Leroy Cobb, an MAI of Baton Rouge, delivered one to the Governor on November 20, 1974. Holley Heard, an appraiser of Lake Charles, completed one for the American Press on January 14,1975. These were reduced to writing in formal appraisal reports. In each case, the appraiser undertook to evaluate the lease in terms of fair market value as of January, 1974. Each supported the view that the square foot rate paid by the State represented the fair market lease value of the property.

“The proof falls short of establishing that Shearman and the Press agreed to any specific use of the appraisals. Some purpose was envisioned, obviously, otherwise the agreement would have been pointless. It was the testimony of the lessors that they had bound themselves to rewrite the lease to conform to the appraisals, had there been a difference.

“Shearman admitted that shortly after January 14, 1975, he was aware of the contents of all three appraisals. The evidence also shows that he did not make known their existence to any of his editors until one week before the trial of this case. He insisted, at trial, as did the editor who learned about the appraisals one week before the trial, that the appraisals made no difference in their evaluation of the lease.

“There is no evidence, aside from Shear-man’s personal opinion, that these appraisers’ views are anything but correct. Even so, their significance is not so much their accuracy as it is their suppression. Their disclosure, though not enlightening about the possible political connections, would at least have been relevant to whether or not the State paid too much rent money. As it turned out, failure to disclose them left the reading public no choice except to continue believing the version espoused by the Press in its 19 news articles in 1974 and rekindled in the editorial of July 21, 1977.

“The Press’ failure to give any credence to these appraisals or even acknowledge them, is offered as evidence that, once having taken a position, it was unwilling to retreat from that position despite evidence to the contrary and that it continued to pursue its preconceived plan to discredit McHale by convincing its readers that the Sears lease was politically obtained and unfair to the taxpayers.

“The Court at this point wishes to emphasize that neither the news coverage of the Sears lease in 1974, nor the language of its repetition in the editorial of July 21, 1977, nor the failure to disclose the appraisals-singly or collectively, rise to the dimension of an actionable defamation. All of this conduct lies safely, and properly, under the protection of the First Amendment. Nor is the Court saying that the lease was good and the Press wrong in its criticism,- or that the appraisals were right and the Press wrong in not disclosing them. Who’s right and who’s wrong is not before the Court for decision. Even if it was, the evidence before the Court is insufficient to make such a determination. What evidence there is, however, suggests that there were in fact two sides to the controversy and that the Press, in 1974 and in 1977, presented only one side.

“This has inferential significance in McHale’s proof of actual malice. These factors are weights to put on the scales when the inquiry is whether there was knowing or reckless falsity, because they suggest that the Press had obdurately made up its mind McHale was a bad man and he ought to be exposed and put down.

“3. The Interview

“McHale resigned as City Attorney in January of 1976. He stayed on as attorney for the Harbor and Terminal District. He was reappointed City Attorney on July 6, 1977. Several days before the meeting of the City Council, upon learning his reappointment was on the council agenda, the Press did two things: (1) it dispatched a reporter to MeHale’s office to find out about the money he had made as City Attorney, and (2) the entire editorial staff was assigned the preparation of the editorial condemning his reappointment.

“The reporter, Bill Shearman, son of the publisher-defendant, met with McHale by appointment on July 19th or 20th and spent an hour in McHale’s office discussing salaries, fees, and time spent in representation of the City. There is a dispute about what happened at this interview. McHale and his secretary testified they went over transcripts of proceedings for previous issuances of paving certificates, sewerage certificates, and certificates of indebtedness. They testified they explained the details of one paving transcript page by page, and how the attorney’s fee was calculated at three percent of the total paving contract. Included among the contents explained in detail was McHale’s legal opinion, a prerequisite to the sale of the bonds. McHale told young Shearman that the transcripts were there for every fee he had earned as City Attorney, and that the fees could be calculated in accordance with that mathematical formula. He invited Shearman to make the calculations for himself; he did not volunteer to do it for him.

“Shearman made notes of this interview and subsequently turned them over to an editor for the Press. According to the young Shearman, these notes and the interview formed the basis for the news article which was published on the same day as the editorial, July 21. This news article contained the statements,

“As City Attorney, McHale gets a commission on bonds the city sells. He said Tuesday that his ‘normal commission’ was three percent.”

“Young Shearman at trial could not remember having had a transcript explained to him. His notes were not available, having been destroyed a few months after suit was filed (July 26,1977). The above quoted news statements, however, support McHa-le’s and his secretary’s versions of the disclosures made at the interview.

“The information supplied the young Shearman at this interview, which took place one or two days before the editorial was written, suggests that the Press had actual knowledge that city bonds had sold on the strength of McHale’s opinion.

“4. The Editorial

“The four members of the editorial staff individually drafted a proposed editorial. The date on one of them is July 13, 1977, showing that the editorial’s preparation covered a period of at least eight days before its publication. It was not ‘hot’ news. These drafts were reviewed by the defendant Shearman, and it was his determination that the final draft include the statement ‘No bond buyer would buy a nickel’s worth of securities on McHale’s opinion’.

“These drafts speak often of bonds and McHale’s fees, and show that the drafters were aware he was paid fees for bond issues and legal opinions. In particular, the employment of the following language has significant weight in establishing actual knowledge or reckless disregard' for the truth as it relates to the value of McHale’s bond opinions:

“McHale has lived well at the public trough for over a decade, reaping thousands of dollars in personal wealth from fees he has been paid for bond issues, legal opinions and other assorted fees.
“We will not be content to rest until we have determined to the penny how much McHale has been paid by the city. It is a matter of public record and the public deserves the full story. The bond fees are totally unnecessary and are a waste of. taxpayers’ money.”

“Accusatory language employed elsewhere in the editorial is said to be further evidence of actual malice, like ‘reappointment ... smells to high heaven’, ‘cram McHale’s appointment down the throats of taxpayers’, ‘controversial attorney’, ‘The State is you and me and we don’t like to be suekered’, and ‘public funds being siphoned off’.

“Shearman perused all four drafts, added the statement to the final draft that McHa-le’s opinion on securities was not worth anything to bond buyers, and sent it on its way for publication.

“5. The Legal Advertisements

“The issue being whether defendant Shearman should be held inferentially knowledgeable of the fact that bond buyers had brought securities on McHale’s opinion before this defamatory utterance, the question arises as to whether the Court can accept his denial of knowledge of numerous legal advertisements that had been run in the paper for years, publicizing in express language the sale of securities on McHale’s opinion.

“The evidence reveals that there had been 23 securities offered for sale-certificates of indebtedness, paving certificates and sewerage certificates-totalling in excess of $2V2 million, between the years 1971 and 1977, all of which sold on McHale’s sole opinion. The transcript of a typical paving project was introduced in evidence. It shows that 18 legal advertisements were run a total of 25 times. Three of these expressly identify McHale as the attorney whose approving legal opinion would underwrite the offerings. Since there were 23 of these projects, it can be calculated that between the years 1971 and 1977 the Press ran 575 such legal advertisements, 69 of which showed that the securities were offered on the approving opinion of McHale. Shearman himself signed the affidavit of publication on at least one of these on August 2, 1976.

“In addition, there were several million dollars worth of bonds in the form of certificates of indebtedness of the Port of Lake Charles and sewerage certificates of the City that were sold on the joint opinion of McHale and Benton, Benton & Benton, before July, 1977. All of these were likewise advertised the required number of times in the Press.

“While Shearman denied knowledge of the contents of these advertisements, saying that no one, including himself, ever read them, it is difficult to believe that this could have gone unnoticed for so long a period of time. They were there for six years before the editorial and during the eight days of its preparation. They related directly to the subject matter of the editorial. In First Amendment cases perhaps the less the publisher knows, the better, but this does not mean that the publisher can disclaim knowledge of evidence ready at hand. While failure to investigate, standing alone, is not proof of reckless disregard, failure to investigate coupled with other evidence, is relevant to that inquiry. The Court has no hesitation to consider this as another element in the probable awareness or reckless disregard category.

“6. Shearman’s Personal Knowledge Outside of the Newspaper

“The evidence also reveals that one month before the editorial, Shearman was put in touch with McHale’s opinion on the sale of a public security in a connection outside the newspaper. On June 20, 1977, McHale wrote President Boyer of Gulf National Bank of Lake Charles advising that there would be an offering of $350,000 in certificates of indebtedness of the City of Lake Charles to fund a portion of the costs of acquisition of property for the City. As a member of the Board of Directors of this bank, and a member-of the Loan Committee of that Board, whose function it was to approve large loans by the bank, Shearman was present at a committee meeting on June 24, 1977 when the bank’s bid on the $350,000 of certificates of indebtedness was approved. The official bid form reflected that the securities would be offered over the approving legal opinion of McHale. Shearman never denied in his trial testimony that he was aware of this. The president of the bank testified that it was not customary to furnish the bank committee with that kind of detail.

“7. Other Evidence

“The Court does not give any consideration to the testimony that Shearman had vocalized his intent to ‘get McHale’.

“There was three such pieces of evidence. One was a statement made to a witness by a reporter of the American Press in 1974. That reporter was not employed by the Press at the time of the trial. Although the testimony was admitted under Code of Civil Procedure Article 1634, the Court does not give it any particular weight. The other similar remarks attributed to Shearman were testified to by Mayor William Boyer and Port Director Sudduth as having been said to them. The Court cannot consider the statements as relevant evidence under Kidder v. Anderson, supra, because they were uttered in 1978, a year after the editorial, in connection with a new series of front page news articles attacking McHale which were then being published.

“For the same reason, the Court does not believe that it is authorized to consider the front page news articles critical of McHale that were published in 1978 as ‘other defamatory publications’, guided by Kidder v. Anderson, supra.

“DEFENSES

“Although the word ‘defenses’ heads up this portion of the opinion, the Court is mindful that it is .not defendants’ burden under New York Times and other relevant decisions to prove the truth of the statement, nor is it defendants’ burden to prove, if the statement was false, that it had a sound factual basis for it and that it was not made knowingly or with reckless disregard, but in good faith. However, there was considerable testimony offered at the trial by defendants regarding what Shear-man intended to say, his actual beliefs, and the basis for those beliefs. This testimony, along with the rest of the evidence, must be considered in determining whether McHale has ultimately sustained his burden of proof.

“The first defense is that the statement was true. The second is that if it should be found to be technically false, it was not made with knowledge or reckless disregard. The third is that it was the expression of an opinion, not a statement of fact.

“Shearman’s belief in the truthfulness of the statement was based on his experience as a member of the Louisiana Board of Commerce and Industry over a period of 10 years between 1966 and 1976. One of the functions of this Board was to approve general obligation and revenue bond issues across the State that were being considered for industrial inducement purposes. The Board conducted hearings to determine the feasibility of the projects the bonds financed. In this experience, he had noticed that there were three law firms in the State who appeared routinely in connection with bond issues before the Board. Shearman testified that he had observed this to be a general practice, that local counsel would involve special counsel on these bonds, and that the special counsel were always the same three law firms in the State. Benton, Benton & Benton was one. McHale’s firm was not. This, according to him, gave him the impression first, that bonds would not sell except on the opinion of one of these bond firms and second, that the word ‘bonds’ meant general obligation or revenue bonds issued for industrial inducement purposes. Since large industrial inducement bonds were the limit of his experience, and McHale, although he had appeared before the Board with Benton on one occasion as co-counsel, had never appeared individually, Shearman declared he thought it was true that McHale’s opinion would not stand alone. Finally, his impression was that while certificates of indebtedness, paving certificates and sewerage certificates might be securities, they were not bonds in the limited sense in which he intended the word ‘bonds’, and the word ‘securities’ was intended as a synonym only in the narrow sense that he meant the use of the word ‘bonds’. He deliberately chose the word ‘securities’ in the sentence that he added to the editorial because this was a synonym for ‘bonds’, and it is good journalistic style to avoid too much repetition of the same word which had already been used three times previously in the editorial.

“He declared that this was his state of mind at the time he penned the offending language and that he believed it to be true and still believes it to be true in this light. Even if the statement was technically incorrect, he urged his good faith belief in its truth at the time he uttered it, as well as a factual basis for that belief, regretting only the failure to make it clear that it was McHale’s sole opinion that would not be acceptable.

“The Court does not believe this explanation alters the statement’s meaning and intent, or the understanding of readers of what was written.

“The meaning intended by the use of the word ‘bonds’ by the writers on the day that the editorial and related news article were published is clear. No securities of the City of Lake Charles ever went before the Board of Commerce and Industry during the defendant Shearman’s 10 year tenure, yet the plain language of the editorial-indeed one of its prominent subjects-was McHale’s fees for his legal opinions for city bonds as City Attorney. Since Shearman’s only contribution was the one sentence, the use of ‘bonds’ theretofore in the editorial was not his choice of language, but that of the editors whose experience and knowledge of the terminology employed was not based on membership on the Board of Commerce and Industry. Also, the young Shearman, who looked at a paving transcript in McHale’s office before this editorial was written and visually inspected a McHale legal opinion, and two days later used ‘bonds’ in the news article, knew bonds meant paving certificates. Defendant Shearman, having read the drafts of the editorial he helped to write, must have been aware that when reference was made to McHale’s bond fees and opinions for the City, this meant what it said.

“Both ‘bonds’ and ‘securities’ were words appropriate in the context. That bonds means securities in the sense of certificates of indebtedness, paving certificates, and sewerage certificates is consistent with customary usage.

“ ‘Securities’ is a synonym for ‘bonds’, and vice versa. Defendant’s brief correctly states that ‘securities’ can have many different meanings in different contexts. The same is true of ‘bonds’. The first of many definitions of the term in Black’s Law Dictionary, 4th Ed.Rev. (1968) is: ‘a certificate or evidence of debt’.

“According to the testimony of an expert bond attorney, Fred Benton, paving certificates technically are not bonds. The distinction is a technical one only, however, as he further testified that bond attorneys, including himself, and bondbuyers routinely call such certificates bonds.

“At the trial witnesses repeatedly used the words interchangeably.

“One investment underwriter when asked what he called paving certificates said: ‘We consider them municipal bonds. To a bond-buyer, it’s all the same.’

“Interestingly, the official bid form in use by the City of Lake Charles for its paving certificates, routinely published for years in the paper, uses the word ‘bonds’ four times, ‘certificates’ three times, and ‘issue’ once-all meaning the same thing.

“The Court’s conclusion is that McHale’s opinion had a value on the bond market, that ‘securities’ includes certificates evidencing public debt, whether referring to regular certificates of indebtedness, or paving or sewerage certificates, and that ‘bonds’ are generally understood in investment circles to include all these. The Court is convinced that the newspaper intended to use the words as synonyms, that readers understood the words as intended, and that the statement is incapable of an innocent construction on the facts. It was false throughout.

“Defendant’s final argument is that this was an expression of opinion and not a statement of fact. Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745, 761 (1974) says ‘[BJefore the test of reckless or knowing falsity can be met, there must be a false statement of fact.’

“The grammatical test of whether a statement is an opinion or a fact is not simply how the declarant says he meant it. The better test is how readers understand it. The best test is a reflection of what is an opinion and what is a fact. A fact, says Webster’s, is a thing that has actually happened, or is true. It can be checked and agreement on whether or not it is true can easily be reached. An opinion, says Webster’s, is what one thinks-a judgment-about some person or thing. No one can prove whether a statement of opinion is true or false. It remains an opinion. Comparatively, a statement of the author’s taste of food was found in Mashburn v. Collin, 355 So.2d 879 (La.1977), to be an opinion. The statement here involved was a statement of fact. Whether any bond buyer would buy securities on McHale’s opinion is a statement which can be proved true or false.

“LIABILITY

“The statement was false.

“The Court believes that the evidence with convincing clarity shows that it was made while the writer was surrounded by a multitude of facts and circumstances compelling the inference of knowledge. The Court concludes that actual knowledge has been proved, or at least a reckless disregard for the truth. Defendants were in possession of knowledge so completely at odds with the published statement that only a reckless disregard of the truth can account for its utterance.

“Freedom of expression of public questions and issues was not served by this base and groundless attack on McHale. ‘Freedom of the press under the First Amendment does not include absolute license to destroy lives and careers’ said Chief Justice Warren in his concurrence in Curtis Publishing Co. v. Butts, supra, 87 S.Ct., at 1999.

“DAMAGES

“The American Press has a circulation of 35,000.

“Unquestionably these defamatory words greatly injured McHale’s reputation as an attorney, and impaired his standing in the community.

“He has been severely humiliated and embarrassed, and has suffered considerable mental distress.

“The effect on his mental health was confirmed by several doctors, some of whom saw him professionally and others , as friends or relatives. There was evidence of personality changes. His personal activities have been reduced and appearances in public curtailed. The mental reaction has required intermittent medical attention and medication.

“Loss of income was alleged but not proved. There was evidence by a preponderance that the defamatory words contributed to his second resignation as City Attorney in January of 1979. Income from bond fees from that source will decrease, but the dollar value of this loss cannot be fixed with reasonable accuracy. He is still the attorney for the Port of Lake Charles. He has not suffered any loss from that source.

“In Kennedy v. Item Co., 213 La. 347, 34 So.2d 886 (1948), the Louisiana Supreme Court recognized that, due to the difficulty of proving pecuniary damages in a defamation action, the amount of damages is left largely to the discretion of the trier of fact.

“In Gertz v. Robert Welch, Inc., supra, the U. S. Supreme Court stated:

“[A]ctual injury is not limited to out of pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, ... all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” 94 S.Ct., at 3012.

“In arriving at the amount of damages, the Court has been influenced by the decision of the La. Court of Appeal in Kidder v. Anderson, 345 So.2d 922 (La.App.l Cir. 1977), reversed on other grounds, 354 So.2d 1306 ([La.]1978). That Court, in reducing a jury award from $400,000 to $100,000, stated:

“We are persuaded that an award in such amount would have a ‘chilling effect’ upon the legitimate exercise of the rights of freedom of the press and would lead to undesirable self-censorship, the prevention of which has been the object and purpose of the United States Supreme Court since New York Times Company v. Sullivan." 345 So.2d, at 942.

“After a careful consideration of all the evidence in the case, and mindful of the above quoted Kidder language, the Court concludes that an award of $150,000 is appropriate.

“Punitive damages are permissible under La.Civil Code Art. 2315.1A. I would be inclined to grant punitive damages here but for the above quoted expression from the Court of Appeal Kidder case. This is the only Louisiana appellate court I know of that has expressed an opinion on the ‘chil-ing effect’ of the damage award itself.

“For the reason that plaintiff is himself an attorney, the Court declines to award attorney fees authorized by Civ.Code Art. 2315.1A.”

In his appeal, plaintiff seeks punitive damages and attorney’s fees under LSA-C.C. Article 2315.1A, which was in effect at the time of the defamation at issue here, but was repealed by Act 324 of 1980. Article 2315.1A reads as follows:

“In addition to general and special damages, the plaintiff who obtains a judgment because of having been defamed, libeled, or slandered may be awarded punitive damages and reasonable attorneys fees, if it is proved that the defamatory, libelous, or slanderous statement on which the action is based was made with knowledge of its falsity or with reckless disregard of whether it was false or not.”

PUNITIVE DAMAGES

The trial court declined to impose punitive damages against defendants, although he had the discretion to do so under Article 2315.1A. Punitive damages have been imposed in some 19th century defamation cases, but following Vincent v. Morgans Louisiana & Texas Railroad and Steamship Company, 48 La.Ann. 933, 74 So. 541 (1912), Louisiana jurisprudence has consistently held that punitive damages are not recoverable at civil law. 37 La.L.Rev. 113. This was legislatively changed in 1976 by the enactment of Civil Code Article 2315.1. Despite the legislative change, no reported Louisiana case has awarded punitive damages in a defamation case.

Civil Code Article 2315.1A incorporates the U. S. Supreme Court test of Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), which held that states may permit a recovery of punitive damages in defamation cases when liability is based on a showing of knowledge of falsity or reckless disregard for the truth. Thus, after Gertz, states were free to enact statutes allowing punitive damages where there is a showing of actual malice as defined by New York Times v. Sullivan. Absent actual malice, only compensatory damages may be awarded.

Other jurisdictions have allowed punitive damages in addition to compensatory damages. Most notable is Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1964) in which the Supreme Court approved an award of $400,-000 in punitive damages. The courts have generally left the amount of punitive damages to the discretion of the jury. Goldwater v. Ginzberg, 414 F.2d 324 (2d Cir. 1969) and Reynolds v. Pegler, 223 F.2d 429 (2d Cir. 1955). Other jurisdictions have expressed concern over an award of punitive damages despite its sanction in Gertz v. Welch. This concern is illustrated in Sprouse v. Clay Communication, Inc., 211 S.E.2d 684 (W.Va.1975), where the Supreme Court of West Virginia stated:

“It would appear that the penumbra of protection of the First Amendment is such that punitive damages may only be recovered in cases where the award of actual damage is insufficient to dissuade others in like circumstances from committing similar acts in the future. The policy embodied in the First Amendment of encouraging broad dissemination of public information forecloses an award of punitive damages which jeopardize the existence of a newspaper when such damages are unnecessary to protect the public from similar conduct in the future or to make possible the vindication of plaintiff’s rights in the absence of demonstrable actual damages. An award of $750,-000 would have a chilling effect upon the legitimate exercise of First Amendment rights and would lead to the type of self-censorship which has been the object and purpose of the United States Supreme Court to prevent since New York Times v. Sullivan.”

In view of the substantial award for actual damages in the present case, an additional award of punitive damages may well have a chilling effect, as noted by the trial court in its written opinion. We find no manifest error in this conclusion.

ATTORNEY’S FEES

LSA-C.C. Article 2315.1A provides that reasonable attorney’s fees “may be awarded” where the defamatory statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not. The article makes the award of attorney’s fees discretionary with the trial court. Thus, in the present case the trial judge had the discretion to award reasonable attorney’s fees or not.

In his written reasons quoted above, the trial judge stated that he declined to award attorney’s fees for the reason that the plaintiff is himself is an attorney. We do not agree that this is a valid reason to deny attorney’s fees under statutes permitting such awards.

We find two Louisiana cases holding that an attorney who represents himself cannot recover attorney’s fees. See Westenberger v. Bernard, 160 So.2d 312 (La.App. 4th Cir. 1964), which cites Ealer v. McAllister & Company, 19 La.Ann. 21. Plaintiff cites two Texas cases which allowed an attorney-plaintiff, who did not represent himself, to recover attorney’s fees upon successful completion of his suit. Youngblood v. Wilson & Cureton, 321 S.W.2d 887 (Tex.Civ.App.1959) and Urschel v. Crow, 314 S.W.2d 423 (Tex.Civ.App.1958). 20 Am.Jur.2d Sec. 77 indicates cases from other jurisdictions are divided on the issue of whether an attorney-plaintiff who represents himself can claim attorney’s fees. However, we find no authority in Louisiana or any other jurisdiction for a rule that an attorney who employs another attorney to represent him cannot claim attorney’s fees if he is successful in his suit, and if such fees are authorized by statute.

In the present case, plaintiff contracted with three other attorneys to represent him. He agreed to pay one of these attorneys a contingent fee of 30% of the award of damages. This agreement is a factor to be considered but is not binding on the courts. A reading of the record shows the attorneys employed are highly skilled and experienced. The amount of pretrial work is extensive. The trial took four days. The record on appeal includes 17 volumes containing 2,586 pages. The attorneys were successful in obtaining a judgment for compensatory damages in the sum of $150,000. We conclude plaintiff is entitled to an award of $25,000 for attorneys’ fees.

For the reasons assigned, the judgment appealed is amended to increase the award by the sum of $25,000, representing reasonable attorneys’ fees under LSA-C.C. Article 2315.1A. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED, AS AMENDED.

      . A third defendant, Thomas B. Shearman, was dismissed by the Court at the conclusion of plaintiffs evidence, as having no tort relationship to the case.

      . One of these appraisers, Leroy Cobb, writing on November 20, 1974, said ‘if inflation continues at its present rate, this will be a very poor lease for the lessors at the end of the fifth year.’ (McHale Exhibit No. 11).

      . Curtís Publishing Company v. Butts, 388 U.S. 130, 157, 875 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

      . Roget’s Thesaurus was introduced to establish the synonymity of the words. Shearman did not testify he consulted this authority while writing, but he did say he then thought the words were the same.

      . Lee Murphy deposition, p. 27 (McHale Exhibit No. 7).

      . At least two cases outside this state show a concern for First Amendment implications of libel awards: Sprouse v. Clay Communication, Inc., 211 S.E.2d 674, at 692 (W.Va.1975), cert. denied, [423 U.S. 882] 96 S.Ct. 145 [46 L.Ed.2d 107] (1975), and Airlie Foundation Inc. v. Evening Star Newspaper Co., 337 F.Supp. 421 (D.D.C.1972).


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Perry ELLIOTT, Plaintiff-Appellee, v. LOUISIANA INTRASTATE GAS CORPORATION, Defendant-Appellant.
    No. 7792.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      John Larry Vidrine, Ville Platte, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

This appeal results from the third in a series of suits between the plaintiff, Perry Elliott, and the defendant, Louisiana Intrastate Gas Corporation (LIG), all of which emanate from a contract wherein plaintiff granted LIG a servitude across his Evangeline Parish property for the purpose of laying a 16" gas pipeline. The contract required that LIG bury the pipe “four feet”, to be measured from the ground level to the top of the pipe.

Pursuant to the servitude grant, LIG had the pipeline laid in July of 1975. However, most of the pipe across plaintiff’s property was buried at a depth shallower than four feet. This resulted in plaintiff’s first suit wherein he sought a mandatory injunction to order LIG to either remove the pipeline or rebury it to the depth specified in the servitude agreement. The trial court, finding no irreparable injury, denied the injunction, but awarded plaintiff $2,500.00 in damages for “some mental anguish, frustration, etc.” On appeal, we set aside the damage judgment and ordered LIG to remove the pipeline from plaintiff’s property, or in the alternative, to rebury it to the depth required by the servitude agreement. LIG was granted one year, from the date of the finality of the judgment, to comply with the injunction. Elliott v. Louisiana Intrastate Gas Corporation, 336 So.2d 925 (La.App. 3rd Cir. 1976).

Pursuant to the above judgment LIG opted to and did rebury the pipeline to the required depth in August 1977. Prior thereto, plaintiff sued LIG in the second suit for a certain sum of money, alleging that an agreement to compromise the dispute between the parties had been reached, and then breached by the defendant corporation. After a trial on the merits, the district court ruled in favor of LIG, finding that there was no contract or agreement to compromise the lawsuit. This Court, in an unpublished opinion rendered on February 6, 1978, affirmed the trial court judgment. Elliott v. Louisiana Intrastate Gas Corporation, # 6302 (La.App. 3rd Cir. 1978).

The last suit in this trilogy, the subject of this appeal, finds plaintiff suing LIG for various damages resulting from the original burying of the pipeline in July, 1975, and the reburying operation in August of 1977. He also sought a mandatory injunction ordering LIG to level his land, within the servitude, and prayed for attorney’s fees. Trial was held and the district court found for plaintiff and awarded the following damages:

1. For loss of hay in 1975 .$ 200.00

2. For loss of soybeans in 1977 .. .$2,500.00

3. To relevel the land over the pipeline ......$ 100.00

4. For anguish, grief, frustration, and rage (1975)..$ 750.00

5. For anguish, grief, frustration, and rage (1977)..$1,000.00

Total.$4,550.00

The request for the mandatory injunction, attorney fees, and various other items sought by plaintiff were denied. Defendant LIG has appealed. Plaintiff Elliott has neither appealed nor answered LIG’s appeal.

Appellant assigns the following specifications of error:

1. The awards for damages to crops in 1975 and 1977 are improper.

2. The amounts awarded for damages to crops, if not improper, are excessive.

3. The awards for non-pecuniary damages for anguish, etc., are improper.

Although plaintiff’s petition alleges that the acts of defendant which caused his damages constitute both a breach of contract and a tort, we conclude that the rights and obligations of the parties to this suit arise from the servitude contract entered into between them.

Under the servitude contract, plaintiff was paid the sum of $658.88 to allow LIG to construct its pipeline over plaintiff’s property; plaintiff, with specified restrictions, was allowed to use the right of way area for cultivation; and LIG agreed to pay any damage which may be inflicted by it in the construction and maintenance of the pipeline.

SPECIFICATIONS 1 AND 2

The record amply demonstrates that at the time the line was laid in July, 1975, plaintiff had a hay crop ready for cutting and bailing. Within the servitude area, hay valued at $200.00 was destroyed by the digging operations. This $200.00 amount was awarded by the trial court. Likewise, when the pipeline reburying occurred in August of 1977, plaintiff had planted on his property a soybean crop, part of which was located within the area of the servitude. The operation destroyed the portion of the soybean crop within the servitude area. For this latter crop damage the trial judge, based on the evidence, awarded plaintiff the sum of $2,500.00. The 1975 and 1977 crop damages were undeniably occasioned by the “construction and maintenance” of the pipeline. Hence, we will not disturb the trial court awards. Those awards are certainly within the well known and well utilized “much discretion” rule concerning the awarding of damages by the trier of fact. Although LIG contends that plaintiff failed to mitigate his crop damages in both the 1975 and 1977 digging operations, the trial judge obviously thought otherwise, and we find no manifest error in that regard. We cannot say, from an overview of the entire record, that plaintiff violated the “doctrine of avoidable consequences.”

We also find ample evidence in the record to uphold the award to plaintiff of $100.00 to relevel the land over the pipeline excavation resulting from the August, 1977, reburying operation.

SPECIFICATION NO. 3

As shown hereinabove the trial judge awarded plaintiff the total sum of $1,750.00 for “anguish, grief, frustration, and rage” resulting from the 1975 and 1977 pipeline operations. Under the jurisprudence, such an award in this case cannot be allowed. The award of non-pecuniary damages for breach of contract is the subject of La.C.C. Art. 1934(3), which reads as follows:

“Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.”

In order to be able to recover damages for mental anguish, aggravation, anxiety, etc., the object of the contract must be the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some other legal gratification, otherwise such damages may not be awarded. This is illustrated by our Supreme Court in the case of Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), wherein it is stated:

“... Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.
On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, non-pecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable. Damages in this event are recoverable for the loss of such intellectual enjoyment as well as for mental distress, aggravation, and inconvenience resulting from such loss, or denial of intellectual enjoyment.”

See also Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979); Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3rd Cir. 1980).

The record herein is devoid of any suggestion that the object of the servitude contract in these proceedings was any sort of intellectual gratification. Therefore, we are constrained to conclude that the district court erred in awarding damages to plaintiff in the sum of $1,750.00 for anguish, grief, frustration, and rage, and that portion of the award must be disallowed.

For the above and foregoing reasons the judgment of the trial court is amended to reduce the amount of the award herein from the sum of FOUR THOUSAND, FIVE HUNDRED FIFTY DOLLARS ($4,550.00) to the sum of TWO THOUSAND, EIGHT HUNDRED DOLLARS ($2,800.00). In all other respects the judgment of the trial court is affirmed.

Costs on appeal to be divided equally between appellee and appellant.

AFFIRMED IN PART, REVERSED IN PART, AMENDED, AND RENDERED.

      . That doctrine, also known as the “doctrine of mitigation of damages” applies in this state and is explained in Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968). See also Darnell v. Taylor, 236 So.2d 57 (La.App. 3rd Cir. 1970), writ ref’d 239 So.2d 346 (La.1970).

      . The most recent case by the Louisiana Supreme Court in this field is Gele, et al. v. Earl Markey and Hanover Insurance Co., 387 So.2d 1162 (La.1980). The opinion acknowledges that the Meador rule has been criticized. However, a reading of the Gele opinion shows that the Meador rule is still controlling, even though its inflexibility may now be treading on thin ice.

      . The author of this opinion is not in agreement with the jurisprudence set out by the Louisiana Supreme Court concerning non-pecuniary damages for mental anguish in contract cases. The author agrees with Justice (now Chief Justice) Dixon’s dissent in Meador, supra. The Chief Justice concluded that there is no logical reason to allow recovery for mental anguish in tort cases and yet deny recovery of similar damages in contract cases. He suggests that non-pecuniary damages are recoverable under the plain terms of La.C.C. 1934(1). See the author’s concurring opinion in Martin v. AAA Brick Co.,Inc., supra.


author: BROOM, Justice, for the Court. WALKER, Justice,

text:
    Emory M. WILSON v. STATE of Mississippi.
    No. 51869.
    Supreme Court of Mississippi.
    June 4, 1980.
    As Modified On Denial of Rehearing Dec. 3, 1980.

      Holleman & Krogstad, Boyce Holleman, Louis Guirola, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   BROOM, Justice, for the Court.

Armed robbery conviction and sentence of twenty years imprisonment resulted from trial of the defendant Emory M. Wilson in the Circuit Court of Forrest County. His defense, refused by the jury, was that he participated under “duress.” Wilson appeals contending that the lower court committed reversible error as to (1) eviden-tiary rulings, (2) severity of the sentence, (3) refusal of a jury instruction, and (4) he asserts that his trial counsel was neither competent nor effective. We affirm.

According to the testimony, the defendant Wilson (either alone or acting jointly with others) robbed three U.S. Army Reserve Officers of approximately $27,000 cash payroll money which they were about to pay to Army Reserve students at the University of Southern Mississippi (USM). Wilson had previously commanded a school conducted for the military on the USM campus. The officers had brought the money from Camp Shelby and had proceeded to Elam Arms Dormitory, USM. While getting out of the car, the officers heard a voice say, “Don’t you go in there. Don’t you go in there.” Then observed by the officers was a man, with a rifle pointing at them, who stated, “I have two other men behind the fence with shotguns. I want you to put the bags down and go inside the building and lay face down on the floor.” None of the officers were subsequently able to identify the man’s face, because he was wearing a “ski mask” or “navy watch cap” over his head. The officers left the money on the pavement, went inside the Elam Arms Dormitory and lay face down on the floor as they were ordered to do. After hearing a sound like a chain going through the door handle, and waiting a short time without hearing anything else, they ran to the door which they found locked. They promptly notified the authorities and an investigation began.

Wilson, a Colonel in the Army Reserve, was subsequently implicated and jailed in Fulton County, Georgia from where he waived extradition. According to Wilson, his involvement in the robbery came about in a most unusual manner. He states that in 1977, he was given a telephone number of a man named Blake Brown, who “loaned money at high rate interest”. Wilson called Brown, and after several meetings with Brown in the Atlanta, Georgia area, obtained a $3,000 loan from him. Wilson’s introduction to Brown came through a woman known only as Linda (she did not testify), with whom Wilson admitted having had an affair.

Further testimony of Wilson (though rejected by the jury) is summarized as follows. In July of 1978, when he had not repaid this loan, Brown ordered him to come to Hattiesburg, Mississippi from Indi-antown Gap, Pennsylvania. Because Brown threatened to burn his business and threatened Wilson’s wife and children, Wilson came to Mississippi and met Brown in Hattiesburg as instructed. There Brown beat him up and threatened him further, after which another man known to him only as “John” joined them. Detailed plans were made by Brown and John pursuant to which the three of them (Wilson driving) proceeded to Elam Arms where Wilson remained in the car with Brown while John went some place. John shortly came back, jumped in the back seat, and they all left. After driving down á road, they stopped at a dead end where the other two men fled thinking a police car was coming. Wilson then found in his car the money taken in the robbery, and headed back to Georgia as instructed. At Andalusia, Alabama he stopped for gas and discovered a rifle, which he had not previously known was there, on the back seat of the car.

Wilson stated that this rifle was an Ml-30 carbine which he had at one time owned. He sold the rifle to Blake Brown for $800, and when told the going rate for such a rifle was $114.95, he said that he thought it strange Brown would pay such a price, but took the money anyway.

Upon arrival in Atlanta, he went to the Alamo Plaza Motel and registered as instructed in the name of James Brown. He hid the money behind a restaurant but subsequently surrendered to authorities, and turned in the money, and within a day or two was back in Mississippi. Other testimony will be stated where appropriate herein.

Wilson asserts that he was denied due process of law when the lower court excluded certain testimony consisting of threats communicated to him. While testifying, Wilson was asked to repeat what one of the other two alleged participants in the robbery said to him as a direct threat, but the prosecutor’s objection (hearsay) was sustained. The following example is excerpted from the record of Wilson’s testimony:

BY MR. CONNER: Please tell the jury the threats as it pertained to your life, of exposure of your infidelity, or danger to your family or whatever it was that made you come to a rendevous . . Colonel, I want you to state exactly what the man said to you verbatim.
BY MR. PHILLIPS: Objection, Your Honor.
BY THE COURT: Sustained.
BY MR. WILSON: The man, he was evidently in a rush. He came up to me and wanted to know, “Where in the world, you S.O.B., where in the world you been?” And I said, “What do you mean?” and he said,—
BY MR. PHILLIPS: Objection, Your Honor.
BY THE COURT: Sustained.

Suggestive and leading aspects of the query are obvious but were not basis of the objection. Wilson’s contention is that in sustaining the prosecution’s objection, the trial court denied him his rights guaranteed under the Fourteenth Amendment of the United States Constitution, which states in part:

nor shall any State deprive any person of life, liberty, or property without due process of law.

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) is relied upon in support of Wilson’s contention that hearsay testimony critical to his defense, may not be mechanistically excluded to defeat the ends of justice. Chambers is patently distinguishable from the case at bar because in the present case there was no other corroborating evidence as to the alleged statements made to Wilson by Brown, who was not available for cross-examination by the state. Additionally, Chambers had in it the element of declaration against interest but here it cannot be said that the threats which Wilson sought to introduce constituted declarations against him.

Argument is made that the testimony of detailed threats made to Wilson would have shown his reasonable apprehension of danger or state of mind under Harley v. State, 345 So.2d 1048 (Miss.1977) and Evans v. State, 315 So.2d 1 (Miss.1975). In Harley, we stated that:

It was fatal error to exclude this testimony because it was offered not for the truthfulness of the threats but merely to show the apprehensive state of mind of the defendant at the time of the fatal encounter.

(345 So.2d at 1050).

Handshoe et a1. v. Daly et a1., 211 Miss. 189, 51 So.2d 230 (1951) held that:

This testimony was admissible as an independently relevant fact to explain the circumstances under which these particular claimants furnished the materials for which they were claiming, and the truth or falsity of Handshoe’s quoted statement was not a fact in issue, and hence the hearsay rule does not apply.

(211 Miss. at 193, 51 So.2d at 232).

In resolving this issue, we are mindful that Wilson was allowed to fully explain to the jury that he was at all times during the commission of the armed robbery “covered with a shotgun”, and in awesome fear of the other two alleged participants in the robbery. Also, he was allowed to describe in great detail that his business had been threatened, his children had been threatened, and he himself had been threatened over the telephone when Blake Brown called him. Actual statements made by the other two participants in the armed robbery would have been cumulative of an abundance of testimony heard by the jury as to duress. Wilson was liberally allowed to present his defense of duress to the jury and relate to them that he was at all times during the course of the robbery in fear of his life, and fearful of other threatened calamities. It is noted here that Wilson (in response to a telephone call) placed himself in the hands of the other two participants in the armed robbery without making any attempt to invoke the aid and assistance of the authorities in any state from Pennsylvania to Mississippi. Also, he had ample opportunity to contact the Mississippi and/or Georgia authorities after the commission of the robbery but elected not to do so, although he did eventually surrender the money to the Army at Fort McPherson, Georgia. Harley, supra, did not say and does not mean that reversible error occurs every time testimony of this type is excluded. Exclusion here resulted in a large measure from sustaining objections to questions which were both leading and quite suggestive of answers. Again, as noted above, the defendant was allowed to freely testify time and again that threats against his children, his business, his life, and to expose his acts of infidelity were made pri- or to the robbery. Further, he testified that at all times during the actual commission of the robbery a shotgun was poked in his side, with Blake Brown’s finger on the trigger. According to Wilson’s testimony which the jury heard, it is obvious that at all times he claimed to be acting in response to mortal fear for his life, family, and property. Indeed, after the robbery when the three went back to the van and then went down the dead end street where he was left with the money and the gun, he was afraid he was going to “get his brains blown out.”

Upon the testimony, exclusion of the actual statements made by Blake Brown was error but does not require reversal, because the record demonstrates beyond a reasonable doubt that the error had no effect upon the outcome of the trial. Heard by the jury was abundant and repeated testimony on Wilson’s theory that he was not a voluntary actor. With the great amount of testimony and evidence as to the defense of duress, which went to the jury, the actual statements claimed to be made by Blake Brown to Wilson before, during and after the robbery were cumulative of other testimony and not essential to the defendant’s case.

Wilson also contends that the following exchange which took place at the trial was a fatal blow to his right to a fair trial and due process of law. The exchange referred to is as follows:

BY MR. CONNER: Colonel, I’m going to ask you a question. Did you voluntarily participate in that robbery?
BY MR. WEATHERS: Objection, Your Honor. That’s improper. That’s for this jury to determine.
BY THE COURT: Sustained.
BY MR. CONNER: Did you plan that robbery?
BY MR. WILSON: No sir.
BY MR. WEATHERS: Objection, Your Honor. Same reason.
BY THE COURT: Sustained. Jury, you’ll disregard the response to that question. The record will be stricken of that response.

Wilson contends this was fatal to his case because the trial judge by his actions told the jury to “disregard his response” meaning that the jury should disregard the defendant’s denial of guilt. This is simply not the case because what the judge said could not logically have been accepted by jurors as instruction to disregard Wilson’s acting under duress. Moreover, a later exchange on cross-examination was in mitigation of the matter. The later exchange was:

Q. [BY COUNTY ATTORNEY PHILLIPS]: Truth of the matter is, Colonel, that you pulled that robbery, knew you were caught, and you did everything in your power after you found out they had you to cover it up, just like you’re covering it up today, didn’t you Colonel?
A. No, sir.
BY HON. DUDLEY W. CONNER: If Your Honor please, I can’t hear the question.
BY HON. GEORGE L. PHILLIPS: No further questions.
BY THE COURT: You may repeat the question, counsel. He didn’t hear it.
Q. I said the truth of the matter is that you pulled the robbery and you found out you were caught and then you started doing everything in your power to cover your tracks from day one, just like you’re sitting up here doing today, isn’t it, Colonel?
A. No, sir, and I’ve told you that since I’ve been here.

This exchange on cross-examination emphasized to the jury that Wilson denied his guilt, and would again re-emphasize the fact that he claimed his actions resulted from duress. Therefore, this particular aspect of Wilson’s argument does not merit reversal.

Next Wilson argues that the lower court erred in refusing to allow into evidence parts of a deposition of one of defendant’s witnesses taken before trial. On October 26, 1978, the witness, Mrs. Lillie Curry, was deposed in Andalusia, Alabama, in the presence of Wilson’s counsel and the Forrest County Prosecutor. In the deposition was a provision that “each party reserves the right to offer all or any part thereof of the deposition for evidence at the trial. . . .’’On the third day of the trial the court was first made aware of the deposition at which time it was stated that Mrs. Curry had cancer and belonged to a “cult” which didn’t believe in the taking of medication. Upon the record as made we find beyond a reasonable doubt no reversible error in the refusal of the court to admit the deposition into evidence, especially since the deposition contained inadmissible testimony.

Exactly why Mrs. Curry was not available to testify in person at the trial was not clearly revealed by the record. She was not subpoenaed to appear before the trial and no effort to procure her presence was made under our Uniform Witness Attendance Law: Mississippi Code Annotated § 99-9-27, et seq. (1972). Early in our jurisprudence in Dominges v. State, 15 Miss. (7 Smedes & Marshall) 475 (1846) we spoke on the subject of depositions and said:

The system of criminal jurisprudence appears to require the presence of the witnesses, both for and against the accused. Very often, in such prosecutions, much depends upon the appearance, manner and mode of testifying of a witness, and it is this that adds the superior character and importance to oral testimony.
The practice in criminal cases of proposing to admit what was expected to be proved by absent witnesses, is not calculated to advance the ends of public justice; and if indeed regular and competent, should not be allowed or encouraged except in very extreme cases.

(15 Miss. at 477, 478).

Contained in Mrs. Curry’s deposition was testimony that she remembered Col. Wilson stopping at her gas station to purchase gas in Alabama on the date of the robbery. She stated that after Wilson left or as he was leaving, a dark colored van containing two men pulled up to get gas but we note that she was unable to identify either of them. Upon the record as made, we find no reversible error in the lower court in the trial judge’s refusing to accept her deposition into evidence especially where it is not likely that admitting the deposition into evidence would have resulted in a different verdict from that returned.

Next argued on behalf of Wilson is his contention that he was denied due process of law in that he was not represented by competent and effective counsel. The record shows Wilson was represented by a member of the State of Georgia Bar and by the Hon. Dudley W. Conner, an outstanding member of the Mississippi State Bar—these men were retained counsel, not court appointed. We stated in Miller v. State, 231 So.2d 178 (Miss.1970) that “An accused who retains his own attorney waives his right to complain of his counsel’s competency. King v. State, 374 So.2d 808 (Miss.1979) held that a defendant in a criminal case on appeal “may not here complain that he was not properly represented” where it appears at the trial level he had counsel of his own choice. Looking at the record on the case as a whole, our opinion is that Wilson was fairly and vigorously defended. The record does not show that the conduct of Wilson’s trial counsel was so lacking in diligence and competence as to reduce the trial to a farce or a mockery, nor could it shock the conscience of the court.

Another assertion made on the appeal of Wilson is that the lower court erred in imposing a 20-year sentence because the sentence was excessive and not reasonably calculated to be less than life. Under the applicable statute, conviction could have carried with it a sentence of life imprisonment, if imposed by the jury. Wilson argues that he is approximately 50 years old with a 22-year life expectancy and therefore his sentence is not reasonably expected to be less than a life sentence. We held in Stewart v. State, 372 So.2d 257 (Miss.1979) that:

Upon remand, the trial court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term reasonably expected to be less than life. The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.

(372 So.2d at 259).

In the case now on appeal here, it is obvious to us that under Stewart, supra, the trial judge considered “other pertinent facts which would aid in fixing a proper sentence.” In handing down the sentence, the sentencing judge noted that Wilson’s attitude was not that of one who felt “sorry for the things he’s been involved in.” It is also obvious that the sentencing judge considered the fact that Wilson’s alleged principals: Blake Brown or the man known as John, had not been brought to justice. Wilson appears to be the only person introduced in the trial who could have supplied information about the other two. We are unable to say that the sentence at issue is unduly excessive or that it violates our established standards.

Last argument made is that the court erred in refusing to grant one of the jury instructions (D-3 requested by Wilson). The reason stated below by the trial court in refusing to grant D-3 was that it had already granted D-5, which the court felt was inclusive of the substance of D-3. Careful reading and scrutiny of the two instructions reveal that they are based on “substantially the same theory” and therefore the trial judge did not abuse his sound discretion in rejecting D-3.

Looking at the record as a whole, along with very excellent briefs and oral arguments, we perceive this case as one where the accused did not get a perfect trial, but did get a fair trial which lacked any grievous or prejudicial error. His defense of duress was founded upon activities of the other two mysterious principals in the crime and a female named “Linda”, none of whom appeared at the trial and testified. The jury, as it had a right to do, rejected Wilson’s theory of the case and we cannot say that reversible error is demonstrated in the record.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

ON PETITION FOR REHEARING

WALKER, Justice,

dissenting:

I must respectfully dissent from the holding of the majority which affirms a twenty-year sentence, without benefit of probation or parole, imposed by the Circuit Court of Forrest County upon Emory M. Wilson. Such a severe sentence is ordinarily imposed upon criminals who have caused bodily harm, injury or death to someone during the perpetration of a crime. The real magnitude of the sentence can only be fully appreciated when it is understood that this defendant was not allowed to fully, completely and adequately present his defense to a jury, á right guaranteed to every defendant by the Constitutions of the United States and the State of Mississippi. The Constitutions guarantee to every accused the right to a fair trial before his freedom may be taken from him. No man is entitled to a perfect trial, but if the lack of perfection rises to the point of causing the trial to be unfair, then the cause should be reversed and the accused given an opportunity to present his case to another jury. It is in this regard that reversible error, in my opinion, was committed in this case. By no valid rationalization or legalistic reasoning can I bring myself to the conclusion that the errors admittedly committed were harmless beyond a reasonable doubt as that term has heretofore been defined by the United States Supreme Court.

The law is well settled, and in fact it is conceded by the Attorney General, that if a person commits a crime at the direction of another and as a result of threats to his life and/or serious physical abuse to his person, such individual is not to be held accountable for his involuntary act. This was the defense asserted by the defendant, who claims that he participated in the armed robbery only because of and as a direct result of threats upon his life and the well being of his children and his business.

He freely admitted his role in the crime, but sought to prove he had no choice. Because of erroneous evidentiary rulings below his efforts to fully present the facts on which he based his sole defense were continually frustrated- A defendant has a legal right to have the jury consider his sole defense and an error which denies him that right is substantial, not harmless.

Evidence of the communication of threats to Wilson was admissible, not for the purpose of proving the validity of such threats, but for the purpose of showing the state of mind of the defendant and why he acted in a particular way. Statements offered for any reason other than to prove the truth of the facts asserted are simply not hearsay. This Court has held that the exact words of a threat are of such importance and so crucial to a defendant’s claim of self-defense that to refuse to permit their introduction into evidence constitutes reversible error. It follows that statements the defendant sought to introduce in this case were admissible to show the effect they had on him. It is true that the jury was aware that the defendant had a shotgun pointed at him during the commission of the crime. However, the jury may not have appreciated the full meaning and import of Wilson’s having a shotgun pointed at him without hearing what the shotgun holder said he would do if his orders were disobeyed. In this case each time the defendant attempted to inform the jury what his captors threatened would happen to him if he did not obey the commands, the State interposed an objection, which was sustained by the trial court, and the defendant was admonished that such testimony was inadmissible in evidence. Even the defendant’s own counsel, who was attempting to abide by the rulings of the court, although erroneous, told the defendant not to repeat what was said to him. Fortunately, however, in the defendant’s frustration to tell the complete story, he blurted out one of the many threats he received from his captors minutes before the armed robbery took place, or this record would be devoid of the vicious character of his captors and the mentally debilitating situation the defendant was in. Colonel Wilson stated, “He was threatening my life, and he told me that he was going to blow my head off if I didn’t cooperate.” When the defendant blurted this threat out there was an immediate objection by the prosecuting attorney which was sustained by the trial court who promptly admonished the jury to disregard the response. The trial court’s admonition to the jury, in my opinion, effectively told them that the threats made upon this defendant’s life were irrelevant to the trial of the case and should be disregarded by them.

I am of the opinion that the error was so grave, the issue so crucial and the consequences so drastic that this Court cannot, in good conscience, say that this error did not in any way or in any manner influence the jury in its final determination, beyond a reasonable doubt.

The majority opinion refers to the “alleged participants” as if there were no corroboration of their existence, when, in fact, the very police woman who followed the defendant’s automobile after it left the site of the armed robbery and who noted the tag number of the vehicle testified that there were three people in the vehicle. This testimony was not contradicted and is not unreasonable or in any way inconsistent with the defendant’s testimony, or that of the victims.

The undisputed facts, leaving aside the disputed issues, belie any suggestion that Wilson’s conduct was the voluntary act of a rational man-yet there is not a scintilla of evidence that the defendant was not completely rational and intelligent. I suggest that a rational man would not concoct such a scheme voluntarily, with its inception beginning in Pennsylvania, a drive of approximately seventeen hours from Hattiesburg, and ending several hours later in Atlanta. An intelligent man, such as the defendant, would know that his absence over such an extended period of time from his office and home would be enough in itself to arouse someone’s suspicion or interest as to his whereabouts. This fact renders suspect the contention that he voluntarily entered into this situation.

The defendant is an ex-veteran with twenty-nine years of service in the Army Reserves, presently holding the position of Colonel and Commandant of his unit. Certainly, he knew that to voluntarily commit such an offense against the Army Reserve unit in Hattiesburg would subject him to a dishonorable discharge and the loss of any benefits which have accrued during his service in the Reserves. Moreover, he is a family man with a wife and three children, is a deacon in his church and is actively engaged in civic affairs in his community. At the time this offense was committed he had three going furniture stores and there was no proof or indication that any of them were in serious financial trouble.

I make no judgment on Wilson’s guilt or innocence, but the facts of this case disturb me deeply. I am convinced that, since this defendant was not allowed to fully and completely present the defense to which the law entitles him, he did not receive a fair trial and the petition for rehearing should be sustained and this cause remanded for a new trial.

PATTERSON, C. J., SMITH, P. J., and BOWLING, J., join in this dissent.

      . Duress is a valid defense for many crimes including robbery; Homicide is an exception. Watson v. State, 212 Miss. 788, 55 So.2d 441 (1951).

      . A light colored station wagon occupied by three people was observed leaving the area by a law officer who wrote down the license tag number — investigation disclosed the vehicle was that of Wilson.

      . Although Wilson claimed to have been threatened with a shotgun during the whole period of the robbery, no shotgun was left in the car, only the rifle. Brown and “John” apparently took the shotgun but left the money and the rifle.

      . Mississippi Code Annotated section 47-7-3(d) (Supp.1980) mandates that he serve a minimum of ten years before he will be eligible for parole. The trial court was without authority to remove from Wilson all rights of parole or probation.

      . The majority opinion and the Attorney General concede that the trial court committed error in not admitting the defendant’s testimony as to the actual threats on him.

      . This defense is discussed in one of the more notorious cases of our time, United States v. Hearst, 563 F.2d 1331 (9th Cir., 1977).

      . Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); Giblin v. United States, 523 F.2d 42, 45 (8th Cir., 1975); United States v. Carter, 491 F.2d 625, 628 (5th Cir., 1974).

      . Leverett v. State, 112 Miss. 394, 73 So. 273 (1916); Clark v. State, 123 Miss. 147, 5 So. 188 (1920).

      . The defendant points out 20 examples in the transcript of objections to his testimony which were sustained. At least seven of the objections concerned what was said to Wilson by his captors before, during and after the robbery. The example in the text is the only time Wilson was able to answer before an objection was made and sustained.


text:
    Mrs. Stewart Wilson WEATHERALL v. Charles PAGE and City of Pontotoc.
    No. 52172.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Ronald L. Roberts, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Oxford, for appellant.
    William M. Mauldin, Mauldin, Sneed & Mauldin, Pontotoc, T. H. Freeland, III, Freeland & Gafford, Oxford, for appellee.
    Before ROBERTSON, P. J., and BOWLING and COFER, JJ.
   Appeal from Chancery Court, Pontotoc County; Fred P. Wright, Chancellor.

Affirmed.


text:
    FORREST-STONE AREA OPPORTUNITY, INC. v. MISSISSIPPI EMPLOYMENT SECURITY COMM’N.
    No. 52238.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    James R. Fowler, Jr., Ingram & Matthews, Hattiesburg, for appellant.
    Leo T. Aragon, Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Affirmed.


text:
    Mildred J. GILBREATH v. Robert E. COX et al.
    No. 52240.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    Edward Blackmon, Jr., Blackmon, Smith & Nichols, Canton, for appellant.
    John W. Christopher, Canton, for appel-lees.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Madison County; G. Milton Case, Chancellor.

Affirmed.


text:
    Milton BURLEY v. STATE of Mississippi.
    No. 52045.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    J. K. Henry, Union, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.