New York Times Company v. Conner

• Decision Date: 10 August 1961
• Docket Number: No. 18589.,18589.
• Citation: 291 F.2d 492
• Parties: NEW YORK TIMES COMPANY et al., Appellants, v. Eugene CONNER et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

291 F.2d 492 (1961)

NEW YORK TIMES COMPANY et al., Appellants, v. Eugene CONNER et al., Appellees.

No. 18589.

United States Court of Appeals Fifth Circuit.

June 14, 1961.

Rehearing Denied August 10, 1961.

Thomas F. Daly, New York City, T. Eric Embry, Roderick M. MacLeod, Jr., Birmingham, Ala., Saul L. Sherman, New York City (Herbert Wechsler, Ronald S. Diana, New York City, Beddow, Embry & Beddow, Birmingham, Ala., Lord, Day & Lord, New York City, of counsel), for appellant.

B. P. Gambrell, John E. Dougherty, Atlanta, Ga., Amicus Curiae, Atlanta Newspapers.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Howard Ellis, Don H. Reuben and George D. Newton, Jr., Amicus Curiae, Tribune Co., Chicago, Ill.

James E. Simpson, Francis H. Hare, Neal C. Newell, William L. Clark, Birmingham, Ala., Wm. Hugh McEniry, Bessemer, Ala., James A. Simpson, Francis H. Hare, Jr., Birmingham, Ala., J. Howard McEniry, Jr., Bessemer, Ala. (Lange, Simpson, Robinson & Somerville, Hare, Wynn & Newell, Birmingham, Ala., McEniry, McEniry & McEniry, Bessemer, Ala., of counsel), for appellees.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DE VANE, District Judge.

TUTTLE, Chief Judge.

This is an appeal from an order denying a motion by appellants, The New York Times Company and Harrison Salisbury, residents of New York and Connecticut, respectively, to quash service of process in Alabama, perfected by the Alabama plaintiffs under the Alabama Substituted Service Statute, § 199(1), 1955 Cum.Sup. to Volume II, Code of Alabama, 1940, Tit. 7.¹ We granted the motion for interlocutory appeal under the provisions of 28 U.S.C.A. § 1292(b).

Seven different suits were filed in the district court against one or both of the appellants. For the purpose of hearing the motions to quash service, the suits were consolidated. They are also consolidated for this appeal.

The facts essential to the disposition of this appeal are not in dispute. As found by the trial court, it appears that Salisbury, acting under instructions from The New York Times, went to the state of Alabama, and was in that state on April 1, 2, 6, 7 and 8, 1960, as an employee of The Times, and on said dates performed work or service for The Times. His assignment to Alabama was "for the purpose of looking into race relations and to obtain background information for an article, or articles, about the South to be published in the New York Times; during the days April 6, 7 and 8, Salisbury toured various areas of Jefferson County, Alabama, including Birmingham and Bessemer, studied newspaper clippings, interviewed various persons in the city of Birmingham, making author's notes concerning matters he had observed and information he had obtained in interviews"; after leaving the state of Alabama Salisbury wrote an article which was published in The New York Times on April 11th. The article bore a dateline "Birmingham, Ala., April 8."

There was proof touching on circulation, advertising solicitation and the writing of articles on several occasions by Alabama residents for publication in The Times. However, the trial court held that there was insufficient evidence to support the attempted service under the general venue statute on the theory that The Times was present in the state at the time the suits were filed. Thus, the only question is whether service could be had under the Substituted Service Statute quoted in footnote 1, supra. Of course, such activities by The Times, even though they were sufficient to justify service on it as being present in the state would not have subjected the personal defendant, Salisbury, to service of process in Alabama unless he was to be found there.

It is not seriously disputed by the appellees that the alleged libels, for which the suits were brought, constituted a cause of action only when publication occurred. That was in New York. The Supreme Court of Alabama, dealing with the question of where a libel occurs within the state of Alabama, has said:

"Summarizing our conclusions, as above indicated, we hold that in an action for libel against a newspaper the injury — the breach of duty — occurs, within the meaning and application of the venue statute, at the place where the newspaper is primarily published * * *" AgeHerald Pub. Co. v. Huddleston, 207 Ala. 40, 45, 92 So. 193, 198, 37 A.L. R. 898.

It is thus clear that whatever else may be in dispute, none of the activities of Salisbury, and therefore of The Times, performed or done in Alabama, ripened into a cause of action in that state.

Appellants attack the correctness of the trial court's order on two grounds. First, they say that the Alabama statute does not apply to the facts of this case, and second that if the Alabama statute is so applied, it would be repugnant to the due process clause of the 14th Amendment in that it would interfere with the freedom of the press and thus abridge the privileges and immunities of citizens of the United States guaranteed under the First Amendment. See Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138, and Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.

We have noted the same duality of issues recently in Stanga v. McCormick Shipping Corporation, 5 Cir., 268 F.2d 544, 548:

"In determining the sufficiency and validity of service of process on a foreign corporation under the laws of the forum state, the problem divides itself along lines of state and national interest. The first part is to ascertain whether the state law means to encompass the challenged service. This question — at least as to diversity cases which this one is — is wholly a matter of state law. Citations omitted. The second is conditioned on an affirmative answer to the first, and then presents the problem whether the state law as thus applied offends the Federal Constitution."

We turn first to a consideration of the construction of the Alabama statute because if it is construed as not authorizing service upon a foreign party in the circumstances of this case, we do not reach the constitutional question. The appellees contend that the Alabama Substituted Service Statute is as broad as is permissible for such a statute to be while remaining within constitutional limitations. They say that we should hold that if any statute authorizing service on a foreign corporation or person by reason of the relationship of such foreign corporation or person with the state of Alabama could subject these defendants to service on the facts before us, then this statute covers this case. Appellants, on the contrary, contend that the state of Alabama has not exhausted its constitutional rights in adopting the particular statute here in question; that, in other words, the statute authorizes service only if a completed cause of action arises within the state of Alabama from the business done or the work or service performed there.

Undoubtedly the rule of construction of such a statute, being one in contravention of the general rule that a party is not subject to suit in personam outside his own jurisdiction, is that the statute must be strictly construed. In Vidal v. South American Securities Co., 2 Cir., 276 F. 855, at page 867, the Court said:

"The courts in construing the statute have said in a number of cases that an act which undertakes to give courts jurisdiction over

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