445 F.2d 356 (2nd Cir. 1971), 446, Miller v. News Syndicate Co.

• Citation: 445 F.2d 356
• Docket Number: 446,35291.,35290,447
• Date: 11 June 1971
• Parties: James MILLER, Appellant, v. NEWS SYNDICATE CO., Inc., Appellee. Helen Parthenios MILLER, Appellant, v. NEWS SYNDICATE CO., Inc., Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 356

445 F.2d 356 (2nd Cir. 1971)

James MILLER, Appellant,

v.

NEWS SYNDICATE CO., Inc., Appellee.

Helen Parthenios MILLER, Appellant,

v.

NEWS SYNDICATE CO., Inc., Appellee.

Nos. 446, 447, 35290, 35291.

United States Court of Appeals, Second Circuit.

June 11, 1971

Argued May 5, 1971.

Richard H. Simons, Milford, Conn., for appellants.

Peter G. Kelly, Hartford, Conn. (Updike, Kelly & Spellacy, P.C., Hartford, Conn., on the brief), for appellee.

Before LUMBARD, SMITH and KAUFMAN, Circuit Judges.

LUMBARD, Circuit Judge:

James Miller and his wife Helen Parthenios Miller appeal from orders of the District of Connecticut, Blumenfeld, J., granting defendant News Syndicate's motion for summary judgment in their diversity actions for libel and invasion of privacy. We affirm the judgment below.

The basis of the Miller's complaints is an article which appeared in The New York Daily News on June 20, 1964. The article described the arrest of five persons including Miller on an indictment which alleged their participation in 'the largest and most profitable heroin smuggling syndicate in the world.' It asserted that Miller had legally changed his name which formerly was Frank Coppola

Page 357

and that he was an ex-convict who 'masqueraded as a legitimate businessman in the swank Connecticut suburbs' where he operated a string of beauty salons. According to the article, he lived on a plot of 25 acres in a rambling ranch-style home which was set 'idyllically' on a tree-shaded hill in Orange, Connecticut, and was 'well know to Connecticut State Police' although to outward appearances he was 'a pillar of the community.'

Miller's complaint alleged that The Daily News' article contained material concerning him which was 'false, malicious, and defamatory.' ¹ He further alleged that on May 19, 1965 he had demanded that the News retract the article, but that they refused to do so. Compensatory and punitive damages of $2,000,000 were claimed for the alleged libels and an additional $1,000,000 was sought on the theory that publication of the article violated his right to privacy.

The district court found that under the Connecticut Retraction Statute a plaintiff in a libel suit, who is unable to prove that he requested a retraction within a reasonable time, cannot recover damages unless he can prove that the article was published maliciously or he is able to allege and prove special damages as a result of the publication. Conn.Gen.Stat.§52-237 (1949). ² Judge Blumenfeld held that appellant's request for retraction more than eleven months after the article appeared was unreasonably late as a matter of law, and his inability to prove malicious publication and failure to allege and prove special damages prevented any recovery. He then went on to find that the article in question was conditionally privileged because it was 'a fair and accurate report of judicial and official proceedings' and 'fair comment on a matter of public interest.' He also found that the article did not violate plaintiffs' right to privacy because it was protected by the defense of 'newsworthiness.'...