*1 & SMITH PUBLICA ALBI v. STREET Inc., TIONS, al. et
No. 10477. Appeals, Ninth Circuit.
Circuit Court of
Jan. *2 controversy nonresident
ble as to remand Appellant’s motion to fendants. order part the same was denied. As enjoined prosecution of the court further and also court the cause in Pub- Smith granted a motion of Street against it. quash as lications to the service or- of this appeal The is from the whole der.1 Pic, containing ar- ticle, by & Smith was Street Spokane distributed in Publications and Company, which by the American News Spokane repre- concern was the question for decision sentative. The sufficiently complaint discloses whether the Hawksley. If a cause of action so, improperly-removed. the cause Spo- Cannon, Fraser, of McKevitt they facts, A are brief outline of Chadwick, kane, Wash., Stephen F. and complaint, will be appear made to Seattle, Wash., appellant. for helpful understanding con- to an Wash., Dill, Spokane, C. Clarence troversy. years many appellant For has Publications. appеllee for Smith Street leading figure and been Wash., Table, Spokane, Lally, A. E. the Athletic Round Thos. the activities of Co. C. appellees'American public-spirited News club prankish for a but social Hawksley. Spokane. C. aftermath The libel was an burlesque by campaign of a initiated WILBUR, GARRECHT, Before widely publicized “Bundlеs for club HEALY, Judges. Circuit Congress,” being the movement intended sponsors to satirize in humorous HEALY, Judge. Circuit Congress providing act of fashion an Washington, Appellant, a citizen of plan for members. In retirement superior court of appellees in the sued 22, 1942, issue of Pic December there for joint damages recovеr for state to anonymous appeared an article entitled ” appearing libelous article publication of a “They Congress.’ Plotted ‘Bundles for Appel- nationally magazine. known caption was a somewhat startl- Beside the & Smith Publications and Street lees photograph appellant, ing below which Company are nonresident Albi, “Joseph legend UnAmeri- was the being organized un- corporations, the one conception can Citizen.” In York, un- New the other der the laws of plot appellant with Ash- the article linked Appellee Delaware. the laws of der ley Holden, newspaperman described as Washington. a citizen of Japanese.” pal Albi “a himself Hawksley individual- made Service was having per- been was characterized as alleged agent of his local ly and as the representative of the dictator Mus- sonal co-defendants. President, until, on order of the all solini were closed. The arti- Italian consulates en & Smith Publications conveys thought that cle “Bundles appearance, Hawks special while tered a subtly Congress” was a subversive move- ap ley American News and the inspired by friendly men na- ment to the petitions cor On peared generally. tion’s enemies. the сause removed porate defendants grounds court on of di contended that federal It not to the versity. petitions it insufficiently for removal exhibits In the the libelous nature Washington statute, no of action was cause article. The was claimed § Statutes, 2424, Remington’s had so stated fraudulently joined. pertinent, It was “Every defines libel as far as been plaimed separa- writing, printing, stated malicious enjoins Code, as the order further § Insofar Judicial U.S.C.A. Zumwalt, Cir., prosecution cause in See Borden Co. appealable under 129 of authorities there cited. * * (1) *, picture, appear which an un shall It would be tend: — hatred, person to expose any living To avoidable conclusion to be drawn from obloquy, de- pleading or to contempt, Hawksley, ridicule in the conduct of confi- public business, prive principal’s benefit of him of the libelous caused the *3 ** intercourse; extensively or social article to be news dence distributеd to 2426 ques publication, city § As to what constitutes in dealers the named. The “Any method provides: sufficiently of tion whether pleading the Statutes which matter the is may by charged law, libelous point definite on the local is one of be shall Chicago, Ry. Schwyhart, R. I. & be communicated to another Pac. v. These 227 publication 184, 193, thereof.” U.S. 250, deemed a 33 57 L.Ed. S.Ct. gen- Washington statute, 285, 473. A Rem a codification statutes are but § subject.2 ington’s law Statutes, provides eral that “in the pleading, construction of a for the participation Hawksley’s respect In purpose effect, determining alle scanty, complaint is in the the gation cоnstrued, liberally shall be [s] distinctly al- pleading but this much the justice with a view substantial to between & : the defendant leges That parties.” the busi- engaged in the Smith Publications is in- magazines, publishing various ness of situations, In it borderline where Pic; cluding the that the is doubtful whether the states en- News is fendant American against cause of action rеsident de the Pic gaged in and distribution of the sale fendant, the ordinarily doubt is resolved magazines, both on a national and other in favor of the retention of in the cause county locally Spokane, in the scale and merely the state court.3 A defective it maintains ware- Washington, where plaintiff’s statement of the does not action delivering for the the houses and automobiles ;4 universally warrant removal is it pertinent magazines; at all times that thought that the motive joining for such only for agent defendant was the a defendant is immaterial.5 It and “conducted the business of” the not, plaintiff fact, where has the in Spokane and Company in American News cause of action the resident de Ameri- Empire; the the Inland and that fendant, ground and has no reasonable 'Company can News caused the issue supposing has, yet joins he him or in article, containing Pic the to- libelous to jurisdiction der evade the fed thereof, 1,000 coрies gether with extra to court, joinder eral that the can to be said the
be distributed to the news-stands in
fraudulent,
be
entitling the real defendant
Further,
city
Spokane.
caused
that it
ato removal.6
city
placards
posted throughout
to be
the
calling special
article.
considering
attention to the
In
the сlaim of fraudulent
2
retain
Section 2424 was amended in 1935
action
court
by
in the definition of libel
de
should not
include
be defeated
fail-
a mere
famatory
ure,
through
radio
means of
or want of
inadvertence
1935,
phonograph
records,
skill, perfectly
Laws of
to state the facts consti-
p.
tuting
117,
329,
action,
c.
1.
cause of
or where there
3 Fitzgerald
of Dela
is some
v. Perkins Oil Co.
doubt whether or not the facts dis-
Cir.,
98;
should,
ware,
prevailing
89
v. Mis
closed
8
Wells
under the rule
579;
Cir.,
Co.,
R.
8
87 F.2d
souri Pac.
held
be
to constitute
Ry.
Louis-San
cause of action
v. St.
Francisco
Locke
resident defend-
418;
Co.,
Cir.,
may
87 F.23
Leonard v.
ant.
In the
one case the defеct
be rem-
Co., Cir.,
Joseph
amendment,
resрects the order is reversed and the same plain- or similar to the one of which cause the with dissolve remanded directions to tiff complains. injunction remand case. and to On this set of facts the matter was sub- mitted to the District Court which held GARRECHT, Judge (dissent- Circuit against Hawksley no cause of action ing). was showing stated аnd that Although petition for removal and presented the removal was sustained. resisting the affidavits the motion re- The further issue of allege service de- support facts to mand state Publications, Inc., fendant Street Smith contention that defendant was presented fraudulently joined the same and the prevent time suit District Court undisputed held on the removal from the these alle- gations showing made are not denied. that there was no service defendant, alleged said and the service Hawksley in his affidavit stated that the quashed and the case as to this de- plaintiff institu- both before and after the fendant, Publications, Inc., Smith suit had stated to him that his prejudice. without was dismissed right publisher of action was magazine; “Pic” re- could not Under circumstances Hawksley, plaintiff from cover I of the record think the action of him did not the District wanted to understand that he Court should be sustained. newspaper serial, every owner, plained or of was without oрerator, proprietor person exercising knowledge or or fault and his wishes any broadcasting authority over control station another who had no reproducting [reproducing] or record of Mm make such and was promptly voice or who human broadcasts over the retracted the defendant with reproduces equal degree publicity upon the human or radio voice writ- indirectly directly request complainant.” aids or abets either ten Rem- reproduction ington’s such broadcast shall be Washington, Statutes chargeable amended, ’35, p. with L. § 2. Provided, Gatley, matter so disseminated: That Law and Practice of Libel any prosecution Action, pp. 97, action for libel it and Slander in a Civil an absolute defense if shall be fendant shows matter corn-