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

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Welborn B. Cody, Harold E. Abrams, Atlanta, Ga., Philip H. Strubing, Philadelphia, Pa., Emmet J. Bondurant, Thomas E. Joiner, Atlanta, Ga., Kilpatrick, Cody, Rogers, McClatchy & Regenstein, Atlanta, Ga., Pepper, Hamilton & Scheetz, Philadelphia, Pa., of counsel, for appellant.

William H. Schroder, Allen E. Lockerman, Milton A. Carlton, Jr., Robert L. Pennington, Gerald P. Thurmond, T. M. Smith, Jr., Atlanta, Ga., Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., of counsel, for appellant on Cross Appeal.

Before RIVES and BROWN, Circuit Judges, and SPEARS, District Judge.

This is a libel suit. Curtis Publishing Company1 published an article in the March 23, 1963 issue of the Saturday Evening Post2 entitled "The Story of a College Football Fix", characterized by the Post in the sub-title as "A Shocking Report of How Wally Butts and `Bear' Bryant Rigged a Game Last Fall."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Furthermore, after carefully considering the entire record, we do not consider that the arguments belatedly objected to would have required a reversal, even if timely objections had been made. Some of the argument was invited, but the very nature of the case made it virtually impossible to discuss the evidence free of emotion or drama. The editor-in-chief of the Post set the tone and the stage for the attack. He openly boasted that the Post's new policy of "sophisticated muckraking" was the "final yardstick" of editorial achievement since it meant "we are hitting them where it hurts." It was no wonder that the author Graham was equally callous in admitting that he knew that "when this article was published that was the death of Wally Butts in his chosen profession" and that "Curtis Publishing Company knew that when that article was published it would ruin Coach Butts' career." The policy of the magazine so bluntly stated25 was by itself more than enough to inflame the jury. Counsel for Butts could only gild the lily.26

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

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

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

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

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

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

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

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

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

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

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

"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." Full opportunity was afforded counsel for Curtis to make any objections before the jury was permitted to consider its verdict. Under Rule 61, F.R.Civ.P., all errors which could not change the result of the trial, or which did not affect the substantial rights of the parties, are harmless and must be disregarded. No action taken by the court with respect to any instruction now under attack appears inconsistent with substantial justice, or to have affected the substantial rights of the parties, and we agree with the trial court that Curtis may not now complain.37

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

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

THE "NEWLY DISCOVERED EVIDENCE"

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

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

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

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

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

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

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

To have granted a new trial might appear to have been an easier way out. But that is really no solution. On a retrial, the judge could not instruct the next jury as to the dollar maximum of any such verdict. So that jury would be pretty much on its own, under the unavoidably vague, elastic standards prescribed in the Code, as measured by the enlightened conscience of an impartial jury.48 The trial judge, on the second trial, would then be forced to repeat the process of testing for (a) and (b). If, as urged by Curtis, the determination by the judge that the amount is too much, necessarily means a new trial, it is quite possible that the case would never end. Georgia has prescribed the "punishment" for aggravated willful torts. The law ought not to frustrate the vindication of that policy by an unrealistic procedure. The jury verdict, as reviewed and reduced by the trial judge, is the tort-feasor's assurance that such damages will not exceed that which the law would tolerate to achieve the Georgia objective of deterring repetition or compensating wounded feelings.

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

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

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

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