Connor v. New York Times Company

Decision Date16 November 1962
Docket NumberNo. 19781.,19781.
Citation310 F.2d 133
PartiesEugene CONNOR et al., Appellants, v. The NEW YORK TIMES COMPANY, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James A. Simpson, Francis H. Hare, James E. Simpson, Crampton Harris, Birmingham, Ala., Hare, Wynn & Newell, and Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel, for appellants.

T. Eric Embry, Birmingham, Ala., Thomas F. Daly, New York City, Beddow, Embry & Beddow, Birmingham, Ala., Lord, Day & Lord, New York City, Herbert Wechsler, Saul L. Sherman, Emery W. Harper, New York City, of counsel, for appellee.

Before RIVES, JONES and BELL, Circuit Judges.

RIVES, Circuit Judge.

On an interlocutory appeal from orders denying motions to quash service of process in Alabama, we ruled: "The judgment of the trial court must be reversed and the cases remanded with directions to enter a judgment for the defendants on the motions to quash the service of process." New York Times Company v. Conner, 5 Cir., 1961, 291 F. 2d 492, 496.

In obedience to the mandate, the district court sustained the defendants' motion to quash service. The court continued the defendants' motions to dismiss the actions in order that plaintiffs might amend their complaints and seek further service. The court thereafter permitted the plaintiffs to strike the individual defendant, Harrison E. Salisbury. It disallowed amendments to the complaints by which the plaintiffs sought to allege distribution and publication of the alleged libel in Alabama by reason of the circulation of approximately 350 copies of the article in Alabama, to limit the claim to damages occurring in Alabama as a result of such alleged publication, and to reduce the demand for damages from $500,000.00 to $400,000.00, when the plaintiffs declined to amend further, the court dismissed the actions. Notices of appeal were filed on April 11, 1962.

Thereafter, on August 30, 1962, the Supreme Court of Alabama decided the appeal of New York Times Company v. Sullivan, Ala.1962, 144 So.2d 25, in which it specifically disapproved the views expressed by this Court in New York Times Company v. Conner, supra (144 So.2d at 51). In its opinion in that case, the Supreme Court of Alabama spoke as follows, directly contrary to the earlier opinion of this Court:

"It is clear under our decisions that when a nonresident prints a libel beyond the boundaries of the State, and distributes and publishes the libel in Alabama, a cause of action arises in Alabama, as well as in the State of the printing or publishing of the libel. * * *
"The scope of substituted service is as broad as the permissible limits of due process." 144 So.2d at 34.

Federal jurisdiction in these cases is based on diversity of citizenship. It is the duty of the federal courts to apply the state law as declared by the highest state court. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

The previous decision of this Court on interlocutory appeal is not binding either as the law of the case or as res judicata, both because it was not a final judgment and because there has been an intervening decision of the Supreme Court of Alabama creating an altered situation. Muchard v. Berenson, 5 Cir., 307 F.2d 368; Commerce Oil Refining Corporation v. Miner, 1 Cir., 1962, 303 F.2d 125, 128.

As said in Vandenbark v. Owens-Illinois Co., 1941, 311 U.S. 538, 543, 61 S. Ct. 347, 350, 85 L.Ed. 327, "* * * the dominant principle is that nisi prius and appellate tribunals alike should conform their orders to the state law as of the time of the entry."...

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  • Edwards v. Associated Press
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 25, 1975
    ...cert. denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64 (1973); New York Times Co. v. Connor, 291 F.2d 492, 496 (1961), vacated, 310 F.2d 133 (5th Cir. 1962). This duty, however, cannot bind us to ignore clear trends in a state's application of its own law. Cf. Dawkins v. White Products Corp......
  • United States v. Jefferson County Board of Education, 23345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 9, 1967
    ...1538, 91 L.Ed. 1877; United States v. International Union (1957) 352 U.S. 567, 590, 77 S.Ct. 529, 1 L.Ed.2d 563; Connor v. New York Times (5 Cir. 1962) 310 F.2d 133, 135; Gibbs v. Blackwell (5 Cir. 1965) 354 F.2d 469, In its first approach to the question the Court indicated that it would n......
  • Arrowsmith v. United Press International, 73
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 11, 1963
    ...law"); New York Times Co. v. Conner, 291 F.2d 492 (5 Cir. 1961), judgment vacated on the basis of a changed view of state law, 310 F.2d 133 (5 Cir. 1962); Seventh: Canvas Fabricators, Inc. v. William E. Hooper & Sons Co., 199 F.2d 485, 486 (7 Cir. 1952) ("The primary contested issue is whet......
  • Curtis Publishing Company v. Butts
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 1, 1965
    ...312 U.S. 552, 556, 557, 61 S.Ct. 719, 85 L.Ed. 1037. 16 The Peggy, 1801, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49; Connor v. New York Times Co., 5 Cir. 1962, 310 F.2d 133, 135, and cases there ...
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