Golden North Airways, Inc., a Corporation v. Tanana Publishing Company, Inc., a Corporation

Judg- POPE, Before ORR and Circuit Judge. YANKWICH, es, District Judge. YANKWICH, District organized corporation, appellant existing Terri- under the laws of the Alaska, tory action instituted this Court for United States District Territory Alaska, Fourth Divi- corporation sion, appellee, organized under laws of the Terri- Alaska, tory publisher and owner and daily newspaper known Daily News-Miner, published Fairbanks Fairbanks, Alaska. at August complaint, filed amended through 1950, charged publi- libel by appellee cation margin.1 printed is which regard- Alas Board Does “The decisions of the Kind Air Carriers “What ing show carriers favors Alaska ka Want? Empire) Daily competition (From Alaska and will certificate two much carriers or non-sched- we have heard criti- more scheduled “In Alaska service, of traffic is Board from the volume Aeronautics uled of the Civil cism so that the revenue from a air The Board sufficient carriers. non-scheduled support efficient, required Congress safe air route will eco- certificate transportation operate more than one and non- scheduled nomic carriers policy adopt- frequency has been The same sufficient carrier. routes with scheduled throughout adequately the United States deal- do- ed serve the needs ing economy, postal motor rail and coach and na- carriers service mestic regu- statutes and similar under similar tional defense. portions requirements responsi- selected the of financial bility, preventive maintenance, inspec- writ- the article which it claimed tion, accounting com- ten The amended other it. innumerable requirements plaint necessary appellees operate recited that caused safe- newspaper efficiently published ly, enonomically.’ “an containing editorial statements concern- and: “ op- all non-scheduled air carriers (referring ‘These to all non-schedul- erating Alaska, the Plaintiff carriers) air ed carriers non-certificated one, this Plaintiff generally spending are their stockhold- following: including libelous, money operating expenses, in ers’ run- “ ning (referring up ‘They labor, rent, etc., taxes, to all non-scheduled bills for carriers) comply they carrying pay, with which air unable to cannot are no in- passenger latory sys- fares, they fly, bodies. is American and It when confining charged by to one at rates half tem the traffic car- as much as are rier, very they few, have or to until certificated carriers. These non-cer- permits developed generally spending which low tificated carriers their volume are frequent money fares, modern, operating re- service and stockholders’ only then, equipment. expenses, running up Then, labor, rent, and bills liable for public competition taxes, etc., they pay, to have which can the which in afford cannot car- rying withdrawing no must be limited to insurance event and destroy Alaska the serv- amount will not winter when fall revenues being provided. quality off. What would be the ice then and fre- op- quency carriers, our “The non-scheduled air winter if we service had only authority erating with and non-scheduled sometimes carriers? What will happen authority dependable our often in excess of their as to and reliable cheap competition frequency, plus equipment war-sur- carriers The if this have utilized continues? readily available Civil and a Aeronautics Board seems re- personnel stop pool ground them, many air and trained luctant to have but of them get by Navy bankruptcy started withdrawn in and Air Force to or forced liquidation. adequate financing. They without are requirements comply paying by with “Who is unable of loss incurred preventive responsibility, taking pas- Alaska sengers financial Airlines in load maintenance, inspection, accounting round-trip Washington, D.C., and requirements they testify for $125.00 nec- so the innumerable other could at the essary operate efficiently safely, hearings? and Statehood paying The C.A.B. is not economically. the loss as all costs for such non- operations concur scheduled “We in the Civil Aeronautics are excluded in com- requiring puting policy adequate pay. of first its mail Board The stockholders economic, postal enough who for the and foolish service fense needs Alaska and then de- are to allow such requiring nonsense, Alaska, its creditors in and general public, way another, this at fares which service lowest one give operators will fair return on be will struck. The Territorial Treas- already urer $22,000 is their and sufficient incentive on investment the hook for challenge expanding 30, 1948, of an in Veterans’ to meet dustry. in- taxes since June policy Stanley on McCuteheon, concur in its We also of Alaska competition only Airlines, permitting payment.’ has when the vol- sent ‘a token after being permit by Attorney traffic will threatened ume of carriers two more General give Alaska with such service at such rea- a suit. No air line can pay by charging its bills sonable fares. one-fourth of regular businesses, our “Some local tel- fare. unjustified ephone, utilities, water and electric must “Much of the criticism of the non-competitive. duty promoted, remain Civil couraged It Aeronautics Board is en- Board to the Civil Aeronautics see that and manufactured the Alaska non-competitive Development member, furnish carriers do ade- and Board Her- quate llilscher, employed pub- service at reasonable rates. bert who is as a the Civil Aeronautics Board lic relations man We believe non-scheduled air job performed very Development has well. carriers. Was Board Alaska hampered, however, has been “It for created the benefit of its mem- places opinion, working which in some has should bers? for the fu- development compe- through unlimited safe, demanded that there be ture of Alaska They fly-by-night op- frequent reliable, cheap have seen tition. air trans- freight portation.” come Alaska with erators editorial, withdrawing portion Ex- did the of said from Alaska surance and ” plaintiff’s second hibit A attached to fall off.’ revenues the winter when complaint herein, which amended Damages $50,000.00was in the sum of words as follows: asked. “ ‘They comply unable to are portions of the The selection of these requirements of financial gist editorial libel as the responsibility, preventive mainte- significance appellant has a double accounting nance, inspection, (1) appellant was in this case: As the requirements the innumerable other by name, neces- not referred to it was necessary safely, operate efficient- sary part that it make of a small itself a ly, economically.’ group whose acts were criticized these “ ‘These carriers non-certificated portions article, (2) the cause generally spending stock- are their jury up- tried and submitted to money operating ex- holders’ theory entitled running labor, penses, up bills only jury if found to recover the ar- they rent, taxes, etc., cannot group referred whole ticle of carrying pay, and no insurance plaintiff which the a member. withdrawing in from Alaska fall off.’ winter when revenues answer, appellee admitted In its publication pleaded of and refer to and air carriers the editorial mean all large irregular complaint claim, air that the did a classified car- not state ap- operating that that the did not refer to riers in Alaska were pellant by name, indeed, that, it did to make not certificated and authorized person, flights and did not defame ascertainable non-scheduled but impartial and that the article fair and a of convenience was a have necessity authorizing certificate good comment made in faith make them to flights? matter interest and without scheduled anyone. towards malice “Answer: Yes. Upon testimony the trial of the cause you “If ‘Yes’ have answered part was offered on the of the preceding question, the last then an- that the words had “non-scheduled” ac- following question: swer the other- meaning popular quired a and included skip it. wise group a small to exceed five or ten “Question Approximately No. 2: they companies in Alaska of which were irregular many large how of said testimony one. of the witnesses carriers in the air mentioned last appellee for the effect question oper- preceding were there meaning the term has in aeronautics ating in Alaska at said time? enough and that it is broad to include “Answer: 5-10. large numbers carriers. Other testi- “Question on 3: In Alaska No. mony not be to. need referred day May, 1950, the 15th about jury The court instructed the portion did the said editorial libelous and that the de- plaintiff’s A Exhibit attached to sec- fair comment had not fense been herein, complaint ond amended proved. Both of these instructions were Question quoted which is in No. excepted A.C.L.A.1949, 55-7-121; to. and refer to mean all air carriers Ry. Copper River & Northwestern Co. place operating at said time and Reeder, Cir., F. 284- that did not certificate have a eight ques- The Court submitted necessity convenience authoriz- jury'. They, with the an- tions regular fly them to schedules? April 22, 1952, returned on swers were “Answer: No. follows: Alaska, “Question you “Question If have 1: In on No. 4: an- No. day May, 1950, preceding ‘Yes’ to last swered or about 15th following gave judgment jury favor question, answer then appellee May 5, basis it, on 1952. The skip to wit: question; otherwise ruling men- for its was this: many air carriers How question preceding last tioned plaintiff tendered “When the were there? answer complaint main second amended “Answer: thing they put in was wanted to para- Alaska, fourth fact which comes “Question No. 5: they May, 1950, graph, defend- day in which said 15th or about the published editorial, in its portion ant caused to be newspaper of said did the containing hereof, Question an editorial quoted re- No. all non-sched- non- statements words and mean fer to which the air carriers —of uled air car- or non-scheduled certificated one, law operating and considerable riers all air carriers showing that that was the was cited did not at said time Alaska law, if the libelous matter was of convenience have a certificate necessity group class, or a if it was include mean and and also every class, person in then a small have certif- all air carriers that did necessity had a cause of action for that class icates of convenience making the libelous matter. With they when so flight regularly amended as to mind which was say newspaper flight? article con- scheduled the non-scheduled air car-* cerned “Answer: No. Alaska, operating in of which riers “Question you If have an- No. 6: plaintiff is one. preceding last swered ‘Yes’ to the “Now, then, following plaintiff question, had to then answer the They prove prove question; skip it, that. had to to wit: otherwise many all of the non-scheduled air carriers How of the air carriers men- by preceding question were mentioned the libelous arti- last tioned and were intended mention- cle to be answer were there? by ed the libelous article. So “Answer: get jury asked, was then so as to “Question Alaska, No. 7: In on get decided, statement them day May, 1950, or about the 15th to decide whether there was a small portion did the of said editorial group or class mentioned Question quoted in 1 hereof No. libelous article and whether or not refer to and mean all non-scheduled plaintiff was one of them. There operating air carriers in Alaska at all wasn’t doubt the evidence said time? plaintiff showed that was one of “Answer: No. them, question but the was whether “Question No. 8: In what sum of every one of the non-scheduled air money, any, damag- plaintiff ques- carriers mentioned. The ed reason of said libelous words jury tion to the was: did the libel- Question set forth No. 1 hereof? portion of ous the editorial refer to* $25,000.00.”* “Answer: and mean all non-scheduled air car- operating riers in Alaska parties at said proposed Each of the submitted a plaintiff’s judgment. discussions, time ? Those were own al- After extended legations did, the court set aside the verdict of that it libel- * question was, judgment The answer to in ef- for the defendant No. 8 tered feet, general plaintiff inconsistency ground verdict for between the damages questions $25,000.00, for in the sum of No. 7 and No. 8. answers judgment plain- So, question, and called for a for the refer to the answer we verdict”, judgment general in that tiff amount. Such 8 as “the No. entered because the trial en- court jury did question ous article refer to all of the to that nullified the award they damages non-scheduled carriers contained in the answer to including them, question were one them- No. 8. jury says no, selves. The that didn’t Page Fields v. Trust carriers, to all of refer those 195 N.C. S.E. an action away plaintiff's it seems to me takes libel had been instituted a bank (Tr. p. 271.) cause action.” negotiated because it returned a check judgment. appeal This is an with a notation there- “Signature forged”. on gave jury question The first to determine is judgment plaintiff. However, for the jury Ques- whether the answer of the special question answer to a found

tion 7 was with the No. inconsistent good the defendant had damages acted in award of un- placing faith in the notation on the question der No. 8. check. The court ruled that the ver- in favor proper- dict I ly aside, special set as the answer Special And Verdicts General question privi- showed the occasion was leged recognizes having good law Alaska the bank acted in findings faith, special particu recovery. there could verdicts A.C.L.A.1949, questions lar §§ fact. problem in this case must be re- They specifically 55-7-81, also 55-7-87. problem group lated to the libel. finding provide special that where a general ver fact with the is inconsistent II latter, shall control the dict “the former give judgment ac the court shall Group Libels A.L.C.A.1949, cordingly”. 55-7-85. group A libel directed at general rule. Rule This also action may of an the foundation form Procedure; Rules of Civil Federal group small if the is individual 1084; AmJur., Trials, Prentice 53 § reading ar enough person that a so Administrator, 8 v. How. Zane’s identify person may readily ticle 1160; 470, 483-484, 12 L.Ed. Graham group. familiar illus of one Bayne, 1855, 18 15 L.Ed. How. say that the should is that one tration 265; v. Baltimore & O. R. Skidmore City all cor a Council are of members rupt, Cir., 1948, 2 167 65-70. It is F.2d could, any Council member of the special also rule that if the verdict name, designated by though not even findings special with can be reconciled large group However, so if the is sue. general verdict, do the court should reader that a no likelihood is that there Trials, 1084; Am.Jur., Boul so. 53 § refer article to understand the would ger Ry., 1919, 41 N. Pacific v. Northern group, it of any particular member 632; Bauer, N.W. Welch v. D. 171 Torts, Restatement, § libelous. is not Cir., 186 F.2d 1002. But to our 5 Gatley on (1938); c See comment mind, can be no such reconciliation there Ed., 1953, Slander, pp 115- 4th and Libel appellants for at the trial here. Counsel Slander, Am.Jur., 118; Libel special ques 33 objected most of the Liability Wilner, As The Civil But he stated No. 7 was tions. Against pects a “appropriate”. Defamation Directed of Collectivity, 414 90 of Pa.L.Rev. U. is no mere admission. It con- This Note, Liability (1942); for Defamation fact that the had to firms the Group, 1322, Col.L.Rev. group bring the small itself within Note, (1934); 29 Cal.LawRev. It did so com- order recover. Wittenberg, Philip (1940); Individual Question phrasing plaint No. Recovery Group, for Defamation of a phrasing with identical 7 is St.L.J., negative complaint. 1954, 15 Ohio 273-279. answer principle than publishing the defendant are well it would libel Both of this sides which, declaration in a California case stated metropolitan press however, of California because of size corrupting group, publication not libel- devoted was held lowering life, moral standards Los action was instituted ous. An debauching public Angeles County Cer- officials. an article as a result of general language against Angeles tainly newspaper published in a Los group people cannot a class or attributed which a statement contained group is libel. constitute Where to a senator who chairman state said; nothing very large investigating pressure that is a groups, committee applies plaintiff,, particular to read: “ he Noral cannot recover.” rapidly be- ‘Californians are Inc., supra, Publications, Hearst coming folly of tax- aroused to the 350-351, Cal.App.2d pages at prop- to finance Moscow citizens P.2d at aganda’. occurs under This drawing explained, present set-up, be- the distinction between an he pay groups taxpayers accusation small bill the relief cause readily interpreted referring 31,000 can Alliance Workers’ any large divert member thereof and the and their officials members groups immunity membership toas which from dues to further libel their agitation attaches, direct the Court said: under Communist Third from the Internatio- orders “The fact that a number of the headquarters Nor- in Russia.” nale recovery by cases have authorized Publications, Inc., al v. Hearst group member of a small where it Cal.App.2d 348, P.2d ap- was clear that the defamation 860, 861. plied group to all of the does not detract alleged the doctrine that he above announced from the foree official the Work- President and chief of the decisions If above cited. the article libeled ers’ Alliance published defamatory accusing article of a sympathy him him charge nature were to that the en- The Court held that the Communism. supervisors par- tire board of large per- of a group was too referred to community, consisting ticular to sue on it: mit individual members, corrupt five and diverts com- “An accusation such as that the funds to the maintenance quality plained of cannot have the brothels, of each member of that certainty of unless there be a a libel board could but recover if a similar There as the individuals accused. to charge super- article were to all the nothing published article the corruption, visors of the state with personal application to makes a against it would not libelous be supervisor as plaintiff. cannot use of the He an individual because the language colloquium make the group accused would be too numer- large applicable to so a which Publications, ous.” Noral v. Hearst persons specifi- group be of made Inc., supra, page 104 P.2d at cally refer him. to to The reference good against A who illustration of a to ‘their officials’ are accused libel diverting group may membership dues to a small of be actionable agitation ap- as to of them a each is New York further Communistic case. charged plaintiff newspaper plies A to than article no more accusing City New York “graft-ridden”, similar statement Coroner’s office would a was encouraging judges vio- described the meth- federal import phy- tax laws be ods used coroners and their lations any judge. apply public. one sicians to extort funds made against a four nearer libel There were coroners each is no had reasonably susceptible physician. York The Court statements special a New application given physicians Appeals to a indivi- of the held one Parking Corp. saying: sue, dual.” Service could Washington Co., 1937, 67 Times likely “Very which stat- article App.D.C. 351, 505-506. general terms that all the cor- ed a bad oners in the state were So it libels is evident that as corrupt against would not be libelous lot consisting large groups numbers of hap- who individual some persons satisfy fundamental cannot pened office of the be member requirements law libel that of the hand, Upon other somewhere. person libel shall certain and refer to a many words an article stated so person person that that claims be the who every coroners of the four one action. be libeled—the in the physicians at coroner’s and of the given occupying an office time Ill City York of New The Contradiction Between bribes, ap- corrupt we and took Special And General Verdicts prehend that be no se- there would jury’s controversy proposi- In the case before us the rious over Question finding answer to No. 7 was a tion one of those individ- did, might all the article refer to uals question an action. maintain group ap members here is whether pellant analogous complained is the situa one. When this of is to the * * * bring tion, person group can first the last one or to certainly an action for In Latimer v. Chi libel. it would be within the cago Daily News, 1947, Ill.App. 295, give jury province 553, 554, newspaper construction, applica- 71 N.E.2d meaning, language referred to a sedition trial under the as tion used would “Capital bring per- Shows True principles, title Despicable Sedition Trial it within mitting of Fascism”. Nature to maintain- this action body article, the trial re Adver- ed.” Weston Commercial as a Ass’n, ferred to trial tiser 184 N.Y. 660, 662. 77 N.E. political gang- “where the scum country repre- sterdom this are hand, an article which other On the group as sented craven of law- spoke “parking-lot racket” in of a Wash- excluding yers seen, I’ve general ington, C., held to be too D. was shysters nickel dime who used operator permit of one of the hang reviewing around the racket court Court, after lots to sue. attorneys for just State St. as staff including S. many cases, one ana- gambling syndicate.” and vice lyzed, gave philosophy be- N.E.2d at ruling: hind the brought for The action libel. rule stated the thus “The complaint represents, court dismissed The trial the text writers courts and judgment regard- for undoubtedly, the and entered defendant. what has been sustaining ruling of compromise In the the court be- sound between ed a Appeals conflicting low, of held the Illinois Court involved in interests the against group an article directed a hand that On the one is the libel cases. press all the members not a in discus- but interest free social give right group plaintiffs general concern, “does not sion matters in- for libel”. N.E.2d at other is the individual action and on the Parking see, Corp. reputation. And ington Service Wash- The courts v. in terest Co., 1937, App.D.C. 351, Times not limit have chosen freedom 502; except Stevlingson, pre- public 92 F.2d 1933, Helmicks v. discussion 614, 615, by defamatory 402, 212 Wis. 250 N.W. occasioned vent harm 1158; IV Hearst Pub- Noral v. 91 A.L.R. 348, 1940, Cal.App.2d lications, Inc., Certainty In Law Of The 352, 104 P.2d 860. Defamation contain no defi- The of Alaska Circuit laws In a in the Seventh case although libel, law, there is the nition of civil Illinois under which also arose Chicago Daily libel. definition of criminal 1949, A.C.L.A. principle v. of Latimer applied. only provision re- News, supra, 65-4-28. The others was § lating veterinary pleading case, plaintiff, sur is one which libel that geon sought apply arti to himself an reads: general. written on vivisection cle “In an action for libel slander not could be Court held that this The necessary to it shall not be state done, saying: any complaint extrinsic facts showing ap- purpose of for the theory be seems to “Plaintiff’s plication of the de- to the group of that he is member of a famatory which the matter out of persons namely, partici- those who — arose, it shall be cause of action but vivisection, pate support in and generally state sufficient to any con- that cerning words written of and spoken published or con- same was are, law, group writ- cerning plaintiff, if such al- concerning plaintiff. ten of and legation plain- controverted be theory However, may not be such a cam, tiff to establish on shall be bound publication applied be unless the published it was trial so every certainty said with include spoken.” A.C.L.A.1949, 55-5-13. § group." individual within Co., Cir., Pub. Brewer Hearst sought appellant comply (Empha- allegation with this section in the al added.) sis ready beginning reproduced at the stating opinion this published the article was sought appellant pleading its here compliance But it. bring group. itself within definite dispense section with does Ques- propounded jury The court showing necessity that the article embodying plaintiff’s tion No. own certainty conformed to rule of theory. jury only found that every requires defamation there libelous statements things: (1) appar two a defamation gist considered the libel did not themselves, ent from words for no group. refer to all members of sense, (2) can alter the innuendo light just cited, In the of the decisions certainty person defamed, as to the finding general such a nullifies the ver- can certain no innuendo render appellant. dict favor of the This Newell on which is uncertain. Slander judg- conclusion would warrant a Ed., 1924, 200; Libel, 4th Vedovi appellee ment for the but for the fact Taylor, Cal.App. & v. Watson that we are of view 418; Seiglitz, 285 P. Williams and, appears is not libelous 637; 200 P. 186 Cal. face, was a fair comment a mat- Stevlingson, 1933, 212 Helmicks v. Wis. recovery ter of interest and Note, Sufficiency as no 614, 250 N.W. could Plaintiff Publi be had under it of Identification under cir- 1161; Yankwich, cation, 1934, A.L.R. cumstances, judg- we can sustain the Defamation, Certainty In The Law appellees upon ment in favor of the 163, 1954, 1 170-179. U.C.L.A.L.Rev. ground familiar that a reversal would C.J.S., Appeal be ineffectual. 5 and Er- just California case The re ror, 1852. See Archer v. very United § concise state to contains ferred 1954, States, Cir., 9 217 F.2d 548. rule: ment of the 622 actually point, it is nec be called an “As to the first inducement light essary of which said to should have can be that the words article plain appellant. published refer to the been Nor is there allegation person any understood direct tiff and should third have been ap- person to have understood the article to refer to at least one third Wright, pellant corporation. laying But, aside concerned v. him. De Witt Hall, question 576; pleading, 67 Cal. remains 57 there Cal. Nidever v. ‘Defamatory proof. 79, lack did 136. words 7 P. prove any person offer to than to some as other actionable must refer person, itself or officers the arti- certained or understood ascertainable person appellant. cle to refer to the alone

and that must be This Naglee, (citing recovery. 66 Cal. fatal would be nam, Marr v. Put- Rhodes v. Wright, ; 1952, 1, 28, 509, v. 196 P.2d 677 P. De Witt Or. 246 [6 863] Stahl, 521; supra; Restatement, 1938, 564, Torts, 14 Cal. Skrocki v. § B; App. 957]). Cal.L.Rev., 1953, words Note, If the 1 P. Comment 41 [110 up really 144; Gatley p. Slander, 4th used contain no reflection on Libel and individual, Mason, any ed., 1953, pp. 562-565; particular v. State 1894, 273, 130, defama averment can make tory. 26 Or. 38 L.R.A. them P. necessary plain 779; Youssoupoff Metro-Goldwyn- It is not v. Mayer Pictures, Ltd., C.A., 1934, if tiff name should be mentioned describing Reports 581, 587, Law A.L.R. words used in Times 864, person meant, to have can be shown 876. have been referred him and Oregon pub- In the case an was (citing Peterson so v. understood spoke lished which of the alarm of es- Rasmussen, Cal.App. 694 P. [191 tablished radio dealers over a racket Tay 30]).”’ & v. Vedovi Watson by persons run who radio advertised 83, page lor, supra, Cal.App. at pickup-and-delivery on a service basis page 285 P. at 420. telephone answer to calls who ab- general person sconded with the radios. There was evi-

This rule. publication acquaintances must dence friends and whom the made plaintiffs who And read article un- to whom it refers. understand person derstood to refer name to them. The Court is not referred readily proof necessary, say- held in such manner iden- as to be ing: descriptive matter tifiable publication, facts must be extrinsic persons “We conclude that with a showing alleged proved that a third knowledge of the circumstances could person person than libeled other reasonably have understood read to refer to him. Restate- understood it ment, Torts, ing the article that it referred to the 564; Gatley on Libel and plaintiffs question and the whether it 113; Ed., Fraser, Slander, 1953, p. 4th refer did fact to them Slander, Ed., 1936, pp. 7th Libel jury.” Putnam, supra, Marr v. 246 P. Slander, Ed., 8-9; Odgers, 6th Libel and 2d at 123-130; Naglee, 1929, pp. Rhodes v. English case, Youssoupoff In the 863, 865; 677, 680, P. 66 Cal. Metro-Goldwyn-Mayer Ltd., Pictures, Zanone, Cal. 66- Harris v. picture supra, company a motion had 845, 846-847; Richardson 28 P. origi- produced picture a silent motion 365, 371, Cooke, 1911, 56 So. 129 La. nally monk, on the based life of a Russian Bank America Washer v. Rasputin. picture The title of the Savings Ass’n, 1943, 21 & Trust Nat. Rasputin, depicted the Mad Monk. 136 P.2d Cal.2d episode in monk either A.L.R. raped seduced noble woman complaint be court who was referred to in the case Czarist Natasha. facts that could Princess Princess Irina Alex- isus bare fore despite proof required Youssoupoff, fact that androvna, wife Prince Oregon 1-908, section, Paris, has a O.C.L.A. action § an instituted resident of tak- claiming from English court, which 55-5-13 was A.C.L.A. § she in jury en. Provisions of this character portrayed A awarded Natasha. as 25,000 not do damages are common to away states do code sum of in the her allege prove proof with the need to and plaintiff that pounds. The offered does picture and where the reference to who saw her friends persons publica- appear not on face affairs with Russian conversant plain- persons tion other than the that history refer to to understood and refer company to tiff understood the to picture motion her. The turn, presented proof in this him. is no such proof in- There that it did conclusion, that, the one Princess, record. This like to refer tend spe- somebody the conflict between fact, “they and not meant else general verdict, questions agreed and the justices cial All the the Princess”. judgment for the would not warrant a question one of fact that defendant. jury the evi- from to be determined V on this said dence. Lord Justice Slesser n point: Article Is Not The Libelous complained “Sir William Jowitt However, are the view we ap- that different standards plied is a libel that involved times, some of at different by any standard whether we consider it being professors, be- some witnesses context of fair com definition or yet plaintiff, friends designat paragraphs two ment. Of the being of Russian readers others appellee libelous, the as first ed pro- question books. When the merely says “they to are unable that pounded Limited in Hulton and comply requirements finan with the Jones, Times L.R. responsibility, preventive mainte cial (1910) A.C. 16 Ann.Cas. accounting nance, inspection, cases, persons of a and later what necessary requirements innumerable might think about a class reasonable safely, efficiently operate econom objection matter, I can see no ically.” paragraph states second sought proved it is fact that they “spending stock that are their persons read Russian who expenses, money operating holders’ running books, persons versed in Russian taxes, labor, rent, up bills for history and friends carrying they etc., pay, cannot imaginary Prin- this all conceived withdrawing from no insurance and plaintiff. be the cess Natasha to when fall Alaska in the winter revenues ap- the matter was The fact Alaska does not civil off.” As define angles proached from several libel, may adopt defini we standard persons from differ- that different in the Civil tion libel contained points of view took the same ent which declares libel Code of California strengthen and not to view seems every unprivileged publi false and ous case, because, all her weaken exposes person hatred, cation which angles, persons came and these these obloquy contempt, or causes ridicule said, certainty, some with some all him be shunned avoided or which doubt, comparative but at injure occupation. him his tends to end, sooner or later rate in the Code, This California Civil § they up minds film made their generally common definition law represent was meant adopted by the authorities. Restate (p. 876.) plaintiff.” ment, Torts, 559; on Newell Libel § rulings Slander, Ed., p. of these can- 4th The correctness Pros Torts, pp. 793-794; Oregon ruling questioned. ser C. not be significance Slander, J.S., 1(2) (a). added because such Libel has 624 lating country by in mind the laws of this is to be borne con- dealing veying, corporation under with a circumstances conceal- we are large misrepresentation, sup- true and it is ment ply individual. a not an While libeled, copper may Norway, corporation 53 C. it

that a be whence 147; 146, easily J.S., Slander, transported 33 could be Libel the Cen- §§ pp. 193, Am.Jur., Slander, tral Powers we Libel were then at § things, war, gen- very 183, by 184, which in accordance with nature knowledge may against eral were much in need of what an individual is libel necessarily against a cor material.2 be a libel company. poration unincorporated anor anonymous Publication of two letters corporation has no character Since a stating plaintiff, temperance of the feelings and no be libel affected injured, society, “scabs, that its leaders are men an article to be libelous reformatory, who have been in the men tendency corporation must have to a away country, who have run to this property directly affect its credit or deserters”, etc., wife profits “the injury. pecuniary mat cause through conducting gambling” language must, Restate ter etc.3 ment, prejudice “to conduct tend it in the Charge corporation placed that a of its trade or deter third business negro girls; foreman as boss over white persons dealing with it”. Restate list, and that it was on unfair when 561; ment, Torts, Philipp Adolf Co. v. corporation shop maintained a union Staats-Zeitung, 1914, New Yorker 165 patronage.4 and had union labor 1044; App.Div. 377, 150 New N.Y.S. Charge company that a is a second- Society Suppression York for of Vice v. dealer, puts work, hand in inferior has 1932, Publications, 260 MacFadden N. a scab establishment and has not a me- 167, 440; 284, Y. 183 N.E. 86 A.L.R. place.5 chanic Broadcasting Western Mir Co. v. Times Charging dealer, that a coal at 1936, Co., 120, 124, Cal.App.2d ror 14 57 famine, people time of coal when the P.2d National Labor Relations suffering only fuel, were charged for want Board Peter Cailler Kohler v. Swiss prices coal, extortionate for its Co., Cir., 1942, Chocolates 503, 2 actually coal, but refused to sell even at Printing 506; Life & Pub. Co. v. prices, people such extortionate suf- Field, 1946, Ill.App. 486, Marshall 327 fering from sickness.6 Notes, 64 N.E.2d 383. Cor Action charge”, poration court, “Such a Slander, said imputing 52 A.L.R. Libeloor libelous, 1199, “is because 86 A.L.R. 442. mean plain- and abhorrent conduct to the impu- Illustrative character business, tiff the conduct of its tations which have been held libelous tending necessarily thus to in- following: corporations are the jure it in such business.” Accusing company fraudulently illegally misrepresenting paragraphs the nature The two of which cargo ship appellant complains gist contained in its as the falsifying libel, only manifest and other up, docu- the summed contain two engaged (1) types ments and that it was in vio- statements that certain Norske, etc., Sun, etc., Ass'n, Pennsylvania Voght 2. Den Iron 5. Co. v. Works Co., 1906, N.Y. N.E. 463. Machine S.W. Ky.Law Rep. 861, L.R.A.,N.S., 1023. Temperance Society v. Finnish 3. Finnish Co., 1921, Rose, 1905, Pub. 238 Mass. 6. Socialistic Coal Gross Co. Wis. 225, 226, 846. L.R.A.,N.S., 130 N.E. 105 N.W. 741. Evening Tobacco Axton Fisher Co. v. Ky. 183 S.W. Post L.R.A.1916E, “headquarters revolutionists of the position com- companies in a are not Ouvidor, shop in Rua rigid in a small boat the requirements of the ply with the English- by Crashley, kept an a certain Act, 47 U.S.C.A. § Communications repute”. only they or indifferent provide man of more (2) less seq., and that et Gama, withdrawing further that De by article stated limited service insurgent leader, had set about rais- the ing and that the time Alaska in the winter revolution, money and money operating in aid of the spent in is stockholders’ expenses, that, effect had “issued a circular to the labor, taxes. rent and success, the in event of the revolt’s the is libelous. see how either We cannot government Bra- new would turn the nothing charges nothing illegal, fraud- It Railway, which is owned zilian National by say company a cannot ulent. To comply government, and is of its the one high requirements the with largest revenue, sources of into a stock saying safety that the more than is no corporation, payment and issue stock in grocery by an run old-fashioned corner by insur- all loans contracted render the efficient cannot individual gents” ; that super market or that of the service through agents, agreed, company, operat- “he his aluminum or steel small Janeiro, compete Bank of funds, Rio de cannot limited with only name, large in corporations existed but which was or that with the steel really Crashley crowd, issue, company fur- cannot a small automobile gold payment in return for the merchandise which nish the standard any sum, pound up, “Big from one can. The statement that the they Six” receipt which they pay would entitle the cannot incur bills which equal holder to shares of corporation. stock It is not libelous as to a charge insolvency. three times contributed the amount Read as a does not funds”; “thou- merely to the rebel whole, paragraph means that English Portuguese limiting operations sands of the themselves to tempting bait; gold they year only, bit at poured part are of the treasury. Nearly money spend into the position but to make every Englishman, majority money. stockholders’ Portuguese, from the hum- principle in is an established capitalist, bank clerk blest in- never law of libel that libelous enterprise, which, vested through doing legal act al to accuse one of plausible cir- rumors strong though epithets are used de Crashley crowd, culated scribing usual illustra the act. The of success.” seemed sure charge libel to one tion is that it that, provi- article further stated limitations, pleading the statute of getting low, and ammunition sions C.J.S., Slander, 53 60; Libel conspirators started in with renewed Hall, Hollenbeck v. 103 Iowa energy, “Crashley and the mill was set 518, 39 L.R.A. 72 N.W. grinding out to work more lies illegality contract, pleading of a English Government’,” Min- Engelhardt, 1875, 117 Mass. Homer v. 539, along helped conspiracy ister resorting bankruptcy to avoid every Crashley’s fresh “after lie from Cummings, payment debts. In re of all meeting diplomatic call a would D.C.Cal., 1949, F.Supp. beg urge corps up- his confreres to point case illustrates the A New York government recognition on the of De Crashley clearly. very v. Press Pub. belligerent”. as a Gama Co., 1904, N.Y. 71 N.E. urged It was this article was under consideration court had tending per expose se, as libelous had taken which stated hatred, contempt, Brazil, ridicule part headed in a rebellion stating obloquy. Gama, one De Appeals of New York observed as to the nature Court cargo. say- per se, libelous held that it was not ing: decisions,

“In seems view of the per clear that the acts attributed not libelous “The article was by plaintiff the and his associates complain article of an To se. question, charging article in did not consti- being libelous, the because any taking part tute crime under law of the in a complainant with govern- United States.” the or rebellion within revolt insufficient, Brazil, quite ment Star Pub. Similar cases are Wood v. Co., allegation of an 1916, the absence 85, 400, in 90 155 P. Wash. mak- statute criticizing of some the existence an the which held article offense, a treasonable gang” such an act of “the anti-recall methods penalties pains or prescribing although to be libelous the word “brib- the crime.” commission ery” used; Flanagan for the v. Nicholson was page 259. N.E. at Co., 1915, 588, 964, 71 Pub. 965, 68 La. So. 137 1917E, 510, in a labor L.R.A. by foregoing followed case The union leader who assisted San Francisco in Mel- Supreme California Court of the to secure the Panama Fair was char- 1914, Co., 167 Cal. Mirror len Times v. “dangerous “traitor”, acterized as 277, case it In that 587, 140 P. suspicious character”. But the con- Los in The an article was claimed Angeles being charged all he text showed that charged the Times “disloyalty” Orleans, New with was “violating “filibustering” the with the Court held that there was no libel. The neutrality” States. United of the although embodying prin that, Other cases same however, Court, held “filibustering” ciple Joaquin County in are: Emde v. San was used word article, 1943, Council, did not Central Labor 23 article Cal.2d facts in the 27, neutrality 146, 158-159, 143 P.2d A. of the 150 violation constitute employer Government, say- (charging L.R. 916 with United States having pol “initiated destructive labor ing: icy” labor, was “unfair” he ‘filibustering’ at “The word he “violates contract” with union and article, when read head hiring “openly violated its word” the remainder connection teamsters); non-union lace, v. Steenson Wal article, read as con- cannot be 144 Kan. 62 P.2d 907 meaning. any veying No facts other charged (“illegal county attorn fees” alleged upon it can rea- are ey). 7 charge sonably claimed be anything imputed dis- VI disreputable, any- or or honorable thing Article Was Fair Comment expose him to ha- could obloquy, ridicule, tred, contempt, con- or So if the statements light cerning appellee or are read shunned avoid- cause him to be nothing principles, one, there is that could cause of these ed assuming always imputations, any injury, that can be said to be him charged. But we consider the arti- when Of libelous. no crime was that course, whole, circumstances, conclusion cle as a inevitable under nothing fair that it was a comment discreditable in must be there public very alleged secrecy have a matter of interest. The been Co., Holway Among & v. McGraw-Hill Pub. are: Co. cases Ward later 171; Thompson Cir., Co., 146 F.2d Okl. Pub. v. World 881; Riley Pub. Osawatomie Kan. v. Press-Tele- v. 562, 44 P.2d 508; Schy Cal.App.2d 456, Co., 1936, gram P.2d Hearst Pub. Pub. Co., Cir., 1953, Meyer, 1937, 386; 205 F.2d 750. Sullivan 62 P.2d Montgomery App.D.C. defamatory aim and fact what statements of shows of the article title discussing person- private person. They were not was. cogent discussing subjects. equally They There are reasons alities. liberality type of mat- statement matter discussed article took ters concern. A citizen Alaska wanted. carriers having a free state an interest Aeronau- of Civil of the criticism note his the conduct of the affairs of government carriers. Board non-scheduled tics type non- should not held to of service discussed accountability given, strict for misstate- use had carriers scheduled fact, approved ment of has as- surplus equipment. It if he tried to cheap and, requiring certain the truth on a reason- policy Board of the basis, good satisfy economic, honestly able and in faith adequate service It believes that the statements made postal needs of Alaska. defense and Bailey water, him are true.” such as v. Charles- some business stated 1943, 292, Ass’n, electricity 126 remain ton Mail telephone must W.Va. 306, urged 837, 844, 27 150 A.L.R. noncompetitive a similar at- S.E.2d and it part 348. Civil Aero- of the titude on the Board Board. said nautics It result, In order to achieve this hampered by public opinion had been satisfy the comment must condi these unlimited com- had demanded (1) relate tions: it must to a matter type questioned petition. serv- It interest; public (2) it must relate they had if relied on that would be ice person not to a but to his acts. Hence during the withdrew winter carriers who imputations it must not contain of cor pointed that Alaska air out months. rupt or dishonorable motives taking passengers for a low lines were persons whose conduct criti work is hearings. testify statehood at fee to cized, imputations insofar as such save finally, certain it members And criticized by facts; (3) must are warranted it Development Board for of the Alaska truly stated; (4) it be based on facts encouraged having of the criticism Civil expression must be the honest Board. Aeronautics opinion on writer’s real the facts which However, operation airplanes is a matter appear publication. Airplanes public are under concern. permissible of facts are misstatements regulation of the Civil Aero- the federal in the view of the latest authorities. seq. 401 Board. nautics 49 U.S.C.A. et See, Joaquin County § Labor Emde v. San important function And is its to Council, so supra, pages 23 154- Cal.2d at obligations may incur 25-26, Alaska that 158-161, 155, pages P.2d at subsequent appropria- payable out 27-29; Sweeney Patterson, 1949, directed The article was to a 23, 458-459, tions. U.S.App.D.C. 457, matter, person subject Washington not to cor- distinguishing Times Co. v. circumstances,

poration. the Bonner, 1936, App.D.C. 280, F.2d right not exceed the fair did by appel 110 A.L.R. relied on protects comment comment and lant; Torts, 94, pp. Prosser § public on matters of 839-840; criticism interest. Ralph Boyer, E. Fair Com ment, 1954, pp. 15 Ohio St.L.J. 280-302. Virginia ease has stated the A West language: principle in this times “fair At comment” “privileged publications” syn distinction between a “The state- are used private gos- But, reality, onymously. they with reference ment are not privileged publication sip one and scandal and same. For public priv or conduct interest there would be libel but for an act require ileged palpable as to fair so eluci- occasion—while comment is Slander, peace Gatley Consideration of on Libel dation. not libel. Ed., 1953, p. seq.; individuals between calls for et order 4th Restate 606; punishment ment, Torts, Legal repression Thayer, of false Con- 65-68; though scrutiny, they may Press, Ed., ad- trol even §§ Defense, versely Thayer, Vol. reflect activ- as a Fair-Comment Note, p. ities or fitness for office of individ- No. Wis.L.Rev. intimately Comment, 1949, L.Rev. uals who are connected Harvard Fair 1207; object principal Noel, of Pub- with the of the at- Defamation Dix W. Cal.App.2d page Candidates, 49 Col. tack.” at Officersand lic 213 P.2d at Rev. Law argument general prin- epithets apply To the used Before we these libelous, us, ciples publication it are said: Court to the before cases which is well to refer to certain preface, “Considered with the publication the circumstances be, the author said it should great bear under which it was made smilarity enlarged merely paragraph final publication us. before upon the idea that no sufficient cause being advanced the recall case, v. South In a California Howard justness of the councilmen. The Newspapers, ern Associated California good of faith the recall 580, 399, 1950, Cal.App.2d 213 P.2d questioned without words cast- during newspaper printed a a a letter ing doubt the character of the a “mala called it movement which recari members of the recall committee or attempt offi to discredit certain fide” integrity apart the of their actions movement", cials, and ended a “sinister support from their active of re- the following with exhortation: the call. must movement sinister “This the court “In words of the permitted to continue not be malign 381, Lewis, Cal.App. Taylor v. foundations the democratic article 22 P.2d city government. How- Mr. our of * * * * charge any does not committee recall ard and his entire thing follow would that disgrace proved a themselves have stamp private him life and his into Glendale, de- be the and it should bring upon him in or as dishonest destroy every of citizen sire dangerous private capacity a citizen of unjust element fellows’, contempt etc. his of casting recall.” his vote proper This, a test we take 582-583, pages Cal.App.2d at spoken charge words of libel on a of page at P.2d concerning those who are or written a demurrer to sustained trial court participating on one side complaint without leave amended political issue.” 95 Cal. other aof appeal that said Court On amend. App.2d 213 P.2d at at limits of exceed the did not matter added.) (Emphasis page 403. comment: fair foregoing case are facts in the which it “Publications significantly to the facts in the similar pertinent convey infor- sought to There, here, as there us. case before of public in matters to the mation here, There, recall, controversy. a awas permitted wide are public interest type air which of as to movement a polit- of a controversies In latitude. Here, as desired. transportation Alaska particular, cir- nature, ical parties, non-certificat- there, the two statements, often cumstances relieve par- newspaper were carriers .ed might be action- otherwise a of other one side ticipating on defamatory imputa- able, possible of here, There, the chief public issue. opinion expressions Mere tions. the issue was on impact not libelous are criticism or severe personalities. on only clearly go they to the merits Hearst Publish Brewer v. condition, cause of a or demerits Cir., 1950, ing public controversy under Boyle, supra, which in Aldrich v. called it an article had before the court per- “hortatory appeal” certain occa certain used on the activities attacked proponent of vivisection. sions. Back of these decisions is son who thought consistently most professor of veterin- followed was a public ary referred the land that matters courts medicine and the “ ‘caring legitimate object holding job for tor- concern are him ” dogs court held citizen’s comment. Mr. Justice Oliver and cats. The tured’ case, publica- Wendell Holmes wrote in an old the circumstances Pettingill, 1912, it was Gandia U.S. tion showed of the article plaintiff, 457, 32 56 L.Ed. 267: fair S.Ct. comment and subject vivisection, proponent apart question “For from the op- part those who criticism on the posed attributing whether saying: it, lawful, conduct as the plaintiff says, libel, couldbe a Homer ques “Plaintiff contends Engelhardt, he 117 Mass. criticism tion fair comment and awas officer in whose course may a motion not be on determined However, of action connected his office is not to dismiss. the citizens of Porto Rico had a In Kulesza v. Chi law of Illinois. interest, anything serious bear cago Daily News, Inc., Ill.App. legitimate action was a 517, and Hahneman 35 N.E.2d subject of statement and comment.” Beebe, nian Life Insurance 48 Co. v. clearly Ill. the Illinois courts applies public what And to a held that fair comment and criticism applies body, public character also to a public on of is matters interest not company serving such as aviation the actionable, question the that one light public. precedes, In the of what law, may of be determined on of we are the view that to motion dismiss. appel not written of or lant, that failed to show “Plaintiff, proponent of vivisec- allegations complaint either his of tion, participated in certain activ- proof his the article was public opinion ities to influence by anyone understood other than itself support pending legislation to refer to it. The article dealt with he deemed favorable to his cause. In transportation airplane state doing so, he invited criticism and sought sym Alaska. It to enlist expression by free others their pathy public of the toward the atti opinion of his conduct and cause. tude Civil Aeronautics Board He complain should not heard be to trying discourage to too much com if the criticism so invited is not petition between well-established com gentle.” 185 F.2d at panies high comply able to with the If fair, severity the comment is in the est standards and non-scheduled con denunciatory language use of will not financially cerns which were not or other Chicago vitiate it. News, 1941, Daily Kulesza v. capable adequately. to wise serve Alaska Ill.App. 117, 35 N.E.2d imputed any no evil to It motives 517; Berg v. Printers’ Ink Pub. persons connected with the non-scheduled D.C.N.Y., F.Supp. 795, affirmed merely expressed activities. the view Cir., Hartmann v. they did serve not the best interests Corp., Boston Herald-Traveler 323 of Alaska. We believe that the cases 16; Tracy Mass. 80 N.E.2d v. Wm. discussed, jur taken from here various Son, Inc., J. Kline App.Div. & which, California, some of like isdictions see, 81 N.Y.S.2d 1. And Aldrich v. recognize privilege the liberal rule of Boyle, 328 Mass. 101 N.E.2d publications interest, in the oth 495, Massachusetts, ers, like New York recognize In all these Illinois, it, clearly cases the courts which do have taken publica- into consideration what the call the conclusion court for “large appears may car- air call non-scheduled but that tion was libelous riers”, question “non- referred to while fair comment it was a on face that large carriers, both In the scheduled air public interest. on matter of jury than are, no more ab- small.” The has said circumstances, as we free to all of the Jurisprudence the that the article referred to an Alaska sence of every large ones, princi- refer to apply but it did not contrary, to Alaska carrier, large recovery Even enunciated, be and small. can both ples here judgment inconsistency if some be found be- in favor could it. As the under had upon the No. 1 No. appellees tween answers to warranted only require a grounds given ac- result new just would be and no cause Mounger Wells, article, Cir., F.2d trial. on the based be tion could my 521. But in there no such view judgment is affirmed. inconsistency. Much can answer less finding No. 7 be construed to be a Judge (concurring). POPE, Circuit article did not refer nothing say find I I am frank to plaintiff. make To it do that it would judg- required a in the verdict change necessary question be questions for the defendant. ment “Did the read: editorial refer to by the answer the court framed air non-scheduled carrier?” designed to whether jury ascertain Notwithstanding disagreement my spoken newspaper were the words point, I re- this specting concur in what is said group per- large, very all-inclusive of a proof the lack as how the Judge whether, YANKWICH sons, or might understood, article and also group puts it, “small it referred publication not actionable reading enough person so that it was within the of fair because rules person readily identify may comment. Question group.” 1 de- one argument theAt counsel jury, group, a limited scribed said, inquiries in answer to as to whether Question 2, said answer their might comment,, not be fair jury said 5 to 10. numbered defense would not available be group. this smaller towas the reference charge here was because of a want simply 3, questions 5 and described 7 The larger, responsibility, of financial that this was generally groups. all-inclusive fact, opinion, a statement not of “all air carriers No. 3 referred Thus fair comment cannot cover false * * * not have a certificate did fact, citing Washington. statements of “all referred to No. 5 of convenience”. Bonner, App.D.C. 280, Times Co. v. 66 * * * that did air carriers 836, 842, 393. A.L.R. those with also a certificate” have there, laying true that in down the- making the latter when certificates Columbia,1 law for the District of the- flights. referred No. 7 non-scheduled rejected court the rule laid down the- air carriers”. “all non-scheduled leading MacLennan,. case Coleman v. group simply jury answered 281, L.R.A.,N.S., Kan. 98 P. large, all-in- of these right 361, that the fair comment ex or 7. groups described tends, malice, clusive in the absence of to mis plain may if we Judge be made fact.2 But as I think Yank statements substance, question later, that, says, I think the wich consider disagree authorities, convenience, what, for we considered better referred spoke few to that the rule of “a “the rule It referred of it as court 2. 1. states”, great that “the and asserted That Federal courts”. authority” contrary. Tompkins, 1938, weight v. Erie R. Co. before 304 (Prosser According Mr. Prosser L.Ed. 1188. 58 S.Ct. U.S. p. Torts, 840), the rather- authorities are evenly divided. court. the District Columbia Snively Record Thus in Pub. court, 565, 198 P. the California Cal. reversing previous stand, expressly F.Supp. See also 97 438. approved MacLennan rule. the Colemanv. agree we were to find

I that even if did contain a state- here

that the article fact, yet hold that the we should

ment requires applied in Alaska rule to be regarded publication as fair

comment. CO.,Ltd., & TRANSPORT

LAGO OIL Libellant-Appellant, America,

UNITED STATES Respondent-Appellee.

No. Docket 23154. Appeals,

United States Court Circuit. Second

Argued Dec. Jan.

Decided

Case Details

Case Name: Golden North Airways, Inc., a Corporation v. Tanana Publishing Company, Inc., a Corporation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 12, 1955

Citation: 218 F.2d 612

Docket Number: 13415

Court Abbreviation: 9th Cir.