*1 appellant exercised would seem that prevent the every precaution reasonable relation carrier-passenger
creation of law appellee. The and the
between itself forcing not sanction the does through will
relation
deception. judgment the District Court reversed, action remanded ap- enter
structions to
pellant. v. STOKES.
DEROUNIAN
No. Appeals,
Circuit Court Tenth Circuit.
May 11, 1948. Black, both of Roberts Parnell
B. E. Rawlings, City, W. (Calvin Utah Salt Lake Wallace, Wayne Black, L. E. all H. brief), City, Utah, Lake on the Salt appellant. Patterson, Lake
Knox of Salt Utah City, Utah, Jenson, Salt Lake (Parley appellee. brief), on the PHILLIPS, BRATTON, Before HUXMAN, Judges.
306
BRATTON, upon Judge. the prove defendant truth. its con may be conceded the instruction that McKnight, Hollings, H. F. Ernest C. J. appli stituted accurate statement Allen, sepa- and instituted Stokes Jeremiah Daily in Re cable law Utah. Nichols v. rate actions Derounian to Arthur 573, L.R.A., porter Co., 74, 3 30 Utah 83 P. damages recover publication of for the al- 796, N.S., 339, Am.St.Rep. 8 Ann.Cas. 116 leged libelous matter the in book “Under general But 841. the instructions of the Cover”. complaint The second in amended language and with court in different the case by filed Stokes was in conventional general princi the substantial correctness book; quoted length form and at from the in ples the pertinent re law outlined truth, and the defenses in that case were quested have held we instruction. And privilege, and want The four of malice. for court the repeatedly that it is not error cases were for trial. Mc- consolidated requested even instruction to refuse a Knight, Hollings, Allen failed before the matter though in if substance correct jury. the A in verdict favor was returned fairly adequately in covered has been Stokes; upon was entered the Bowater general given. v. the instructions verdict; appealed. For Derounian con- Cir., 970; Detroit Worley, Fire 10 57 F.2d venience, parties the will be referred Co. Oklahoma Marine Insurance v. & they appeared in the trial court. Cir., 671; Co., 64 F.2d Elevator 10 Terminal ground One the motion for a 923; Wiseman, Cir., F.2d 98 George 10 v. verdict in directed favor of the defendant Banion, Metropolitan Life Insurance Co. v. the was that contained in the statements Pipe 561; Cir., Mid-Continent 106 10 F.2d having book were reference to true. 871; Cir., 116 Whiteley, Line Co. 10 F.2d It is in the law Utah as elsewhere that the Lillywhite, Brigham Young University v. 10 charged defamatory truth of matters ex certiorari Cir., 118 F.2d empts publisher the thereof lia from civil 86 L.Ed. 314 U.S. 62 denied S.Ct. bility for libel. Williams v. Standard-Ex Co., Clyde Cir., 10 Dyess v. & W. W. aminer 83 Utah P. Co. v. Wil Telluride Power F.2d quote We not pause 1. from 2d the Cir., liams, 10 F.2d book or review other evidence in detail that Coming the the contention most, the At the adduced at trial. evidence privileged, alleged publication was libelous merely pre its reasonable inferences the all the defendant the close of evidence at sented the issue fact whether the state jury to the court to return direct moved in ments the book were in favor on the that verdict Therefore, true. insofar as the defense of part relating book generally concerned, was court correctly truth fairly publication was made the motion denied for verdict and directed motives, faith, proper good in jury. issue submitted upon a justifiable ends matter in requested The essence of a in requested the substance of terest. And which the was struction court refused by was that a instruction refused court which, taken if book contained good publication made in faith a mat import meaning, plain in its and natural concerning interest ter necessarily must presumably its involving time of war is welfare consequence plaintiffs, proximate occasion privi though such privileged, even without loss, pecuniary respectively, actionable; privi lege it would be libelous; that the burden rested though lege the author was un exists even prove by a plaintiffs preponderance duty legal pub the matter have der no the evidence libel lished; that if in the the matter evenly ous; privi that if the bal evidence plaintiffs book verdict, if preponderated leged, be anced favor returned should defendant, the verdict in each case should defendant unless the defendant actuated defendant; plaintiffs writing if the by be for mater malice towards the .in book; concerning plain if the material ial in the book contained libelous, rested privileged, rested book was burden tiffs was then burden plaintiffs preponder- jour ed by graduating States. establish After recognized university, ance of was nalism from the evidence that the defendant newspa actuated defendant worked for certain plaintiffs malice toward writing pers magazines, In Wil- wrote book. he later *3 Co., Publishing liams v. Standard-Examiner the book. The book was in supra, during it held that privileged was in Utah the time the States was en United classes, absolute, gaged Italy, communications are in and Germany, two war qualified conditional; Japan. and or in the pattern that The general the of book was absolutely expose case of an privileged pro-Nazi to the pro-Fascist communica- the and although tion publication, Many per utterance or elements in the United States. malicious, both false give not rise in parts and does sons various nation were of action; named, to a cause of case quis of a were sometimes to as referred qualified conditionally lings privileged descriptive or com- or in other of words similar merely prima import, disloyal munication the being law raises a were as classified occasion; presumption States, facie favor depicted in of the and were as United privileged plotting both communica- classes of its overthrow. Plaintiffs and others tions rest upon grounds public policy, name; in Salt Lake City of were mentioned necessity City of the reference was made individual surrender to the “Mormon cell”; fascist personal welfare; rights his and statements for the common attributed plaintiff quoted were which that the rule bore earmarks qualifiedly of a privileged com- disloyalty. of While our attention has not munication to a extends communication been to any called in the book made subject-matter bona fide a in stating specifically categorically and which party communicating an in- has pro-Nazi, pro-Fascist, was or or terest, or in reference to which has he a disloyal that he States, was to the United duty person having corresponding a a in- referring directly to him were duty; terest or and that the susceptible clearly certainly and of that con cludes cases duty where the is not one aris- struction when in with read connection ing law, out of but of a or moral social taking entire And into book. consideration character. The cause of as- action there existing the conditions at the time of predicated serted was an article ain book, particularly the newspaper criticizing city local a com- contemporary antipathy the Nazi toward charge missioner depart- in of the water regime regime in Germany and Fascist city furnishing ment contamin- Italy, in charge the false or characterization ated water to the which public brought about an American good citizen of character existing epidemic or a threatened reputation pro-Nazi pro- or a typhoid fever, held pub- and was Fascist, being disloyal or as United qualifiedly lication conditionally or reasonably States, subject calculated Here, privileged. engaged hatred, odium, public contempt, him to practice in law in Salt Lake per therefore constituted libel se. He Utah. was member of the Mormon Digest Association, Reader’s Grant v. church, he filled positions various had Cir., 733, certiorari 151 F.2d denied 326 U. Beginning in church. in wrote he 797, 66 Spanel S. S.Ct. 90 L.Ed. be published and caused and circulated Cir., Pegler, 160 F.2d pamph- from time time various tracts Chesley, Mencher v. 297 N.Y. lets, and on one occasion he delivered N.E.2d public Denver, address Colorado. While severely he sometimes criticized the Presi- official, public Plaintiff was not a States, dent of the United sometimes se- public and he was not candidate for office. verely criticized public certain other of- managerial position He did hold in a ficials, severely and sometimes institution, national, criticized public state, or munici proposed existing certain legislation, or pal. he was otherwise And connected gist of his and of ad- enterprise involving public- public primarily dress to was referred a de- private welfare. He citizen. His nunciation communism in the Unit- pamphlets, his tracts address. reputation, addresses, private virtue or publish his character well as thereby alive, his defects of .one insofar it affected or conduct who is hatred, conduct, comment were hostile, light criti- most though ridicule.” criticism even severe and Construed plaintiff, merely misstatement of cal of book provided it contained no respect tracts, physical appearance he pamph his material fact stature; lets, in wide distinction was that he or addresses. But small rotund face; baldheaded; that he from the in Williams v. was a round involved had eyes beady supra, small in size
Standard-Examiner were appearance; glass- comment criticize that he wore book did not rimmed ; single-track, public official. es that he un- any action as a *4 upon type. compromising or zealot Whether untrue Neither did it undertake to comment public literary otherwise, or rea- criticize his or were not productions these charge subject to Instead, sonably plaintiff gist addresses. calculated ridicule; dislojal country and therefore it was error being public to his dur him with per ing jury personal a national It him submit ridicule of crisis. attacked to the appearance damages for sonally. an element of personal assailed his character as It plaintiff manner, quite might apart in a from liter which recover. vital his ary productions addresses. And public or The is the cause reversed think that un full consideration we remanded. law, recognized controlling canons der of privileged. that kind is not of (specially HUXMAN, Judge Triggs Printing & As v. Sun concurring). 739, 144, sociation, 66 179 71 N.E. L. N.Y. I Brat- Judge concur in the conclusions of 612, Am.St.Rep. 841, 103 1 Ann.Cas. R.A. portions ton that those the admission of of 326; Evening Journal, York Brown v. New person- publications relating to Stokes’ 143 Misc. 255 235 affirmed N.Y.S. appearance al constitutes error reversible 903; App.Div. 840, Newell 257 N.Y.S. requires judgment. a reversal of 547-551; (4th ed.) Slander Libel Re however, opinion am, I the further statement, Tort 33 §§ Am.Jur. complained are publications of the all C.J.S., Slander, 53 134 Libel and § true, qualifiedly privileged. as is stated pages 221-222. opinion, Judge Bratton’s that Stokes was question official, One further calls for dis a public not that he was not a can- :ated, already office, As indi re manager- cussion. did he didate for nor hold charging in the main lied book as position ial But I public institution. disloyal being him with United States not the authorities to hold that understand constituting and therefore libel. necessary publications is invest con- actionable. But, having reference to the on qualified cerning privilege. occasion one with which met defendant be public Stokes entered the arena at a had acquainted personally came in Salt Lake printed time when war. He we were at being the book described as large publications distributed number of small, President, man with a bald and attacking rotund our cabinet, dome his face; having small, eyes; as beady policies round national to the war as peering glasses; effort, Utah, as from behind rimmed the State Governor of being definitely single-track, A and the of that State. writer Senators type. uncompromising speaker in zealot in its public And invites of what or criticism jury, the speaks, submitted structions to court he or writes doctrine appearance of physical qualified applies. ridicule ele an 33 Par. Am.Jur. damages 164; C.J.S., Slander, libelous matter which ment of Libel and § 2—2, might Appellant be Section page awarded. Utah Stokes a 217. call did 62— 1943, defines as “a Code Annotated libel Nazi. It is true that inference from defamation, expressed by printing either he what about him his said activities signs pictures like, tending belonged or or or and connections he * * * impeach honesty, integrity, groups. appellant Nazi or Fascist But all dead, impeach honesty, ac- integrity, or to about Stokes’ to write did reputation, virtue or groups publish various or natural tivities and connections alive, thereby is Writing about one’s defects of one who movements. implications necessity hatred, to public carries or activities ridicule.” Although private his nature. personal of a attack, per- character language The purporting to describe the qualities flowing implications sonal from physical characteristics defects open are activities one’s plaintiff, Stokes, pleaded analysis to such honest conclusions complaint. amended second A motion Berg might intelligent make. man lodged strike complaint, F.Supp. D.C., Printers’ Ink Pub. language but that challenged. was not exception to the instruction was not on ground Corp., 2 v. F-R that such Pub. not ex- As Sidis pose 806, 809, ridicule, Cir., Stokes but on the F.2d that there was no basis in the evidence scrutiny “At permit least we would limited finding maliciously defendant “had ‘private’ any person has life who ridiculed” Stokes. In other words, achieved, him, or has thrust had there was no basis evidence questionable of a and indefinable status *5 finding malice, language ‘public figure’.” expose would Stokes to ridicule. by activities, One who brief, In the counsel for the defendant attempts spoken language pub- to influence argue do not language that the used opinion any way lic is to free not-expose ridicule, Stokes to but truth honest by of his efforts mem- criticism erroneously defense, as a excluded of the public. bers Restatement of Law of the natural defects Torts, 610, page Vol. 292. The Par. person not constitute libel unless fact that a of one’s activ- they are “either grossly exagger- false or ities connections tends to reflect ated.” personally, destroy quali- does not
fied thereof.1 clear to me seems that truth is no de- fense under statute the publication accordingly I would base the reversal a person defects of which there- the additional publica- exposes by person to ridicule. The conditionally tions were privileged “publish words the natural defects of one” give it proper was error to fail to clearly import the publication of the truth. structions thereto. The makes statute it libel so to do if PHILLIPS, Judge (dissenting). publication malicious, is person will I whom opin- dissent for my reason that in the words are ion, ground upon which the reversal is ridicule. court, based not raised the trial argued appellant’s was not brief error, here. any, if not, my opinion, of such a substantial character Section we Annotated, Utah Code 2—2, 62 — it notice where should was not properly defines libel as follows: “A libel ais brought to the attention of the defamation, expressed court at malicious by either below, argued trial nor here. printing signs pictures like, or the tending to memory blacken Accordingly, of one iswho I would affirm. above, 1 In addition to Slander, cases page 170; cited Libel and Par. Dies, U.S.App.D.C. Restatement, also Potts v. see Torts, Law of Vol. Par. Merriman, 606, page F.2d 394, McLean 42 S.D. N.W. 878 : 33 Am.Jur.