Soley v. Star & Herald Co.

• Decision Date: 21 February 1968
• Docket Number: No. 24221.,24221.
• Citation: 390 F.2d 364
• Parties: Benjamin Polycarpo SOLEY, Appellant, v. The STAR & HERALD CO. et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

390 F.2d 364 (1968)

Benjamin Polycarpo SOLEY, Appellant, v. The STAR & HERALD CO. et al., Appellees.

No. 24221.

United States Court of Appeals Fifth Circuit.

February 21, 1968.

Benjamin Polycarpo Soley pro se.

Woodrow deCastro, Balboa, Canal Zone, for appellees.

Before RIVES, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

A Case of Libel. On October 24, 1960, a Canal Zone bus stopped suddenly as one of its passengers, Benjamin Polycarpo Soley, was preparing to exit. Soley was thrown from the bus and landed on the ground in a sitting position. He sued the bus company for negligence, claiming damages due to back pains and impotence, but in 1964 the district court sitting without a jury ruled for the bus company. Four days after the judgment a newspaper owned by The Star & Herald Co. published an account of the trial, stating in part:

"The case was postponed on several occasions, principally for the gathering of medical testimony. It was on this testimony, which proved inconclusive and showed that the plaintiff had been treated prior to the accident for a condition that he claimed was caused by the fall from the bus, that the case was dismissed." (Emphasis added.)

One year later Soley filed the suit at bar against The Star & Herald Co. (appellees) in the same district court for libel. His suit was dismissed for failure to state a claim, and he appealed.

Although this is not the first time that Soley has been cast in the role of a defamed,¹ his performance in this action has hardly been flawless. Nevertheless, as we extricate fact from fancy out of the uncoordinated allegations in his trial and appellate pleadings, we find some undue haste in dismissing a potential claim.

Soley filed his first libel complaint on April 7, 1965, without the benefit of legal counsel. His complaint alleged that the above account in the appellees' newspaper was "false and malicious" and that the account was "responsible for many attendant failures, which took a heavy toll both financially and physically from one of my next of kin." In an amended complaint, filed almost a year later and with assistance of counsel, he added:

"The facts stated in said publication were wholly false and untrue, scandalous and defamatory and were known to the defendant so to be * * * exposing him Soley to disgrace in his occupation and mistrust on his entire family * *." He also referred to "the aforesaid false, scandalous, malicious and defamatory libel of and concerning plaintiff."

On March 21, 1966, the appellees filed a motion "to strike the complaint, as amended * * * on the ground that the said complaint does not state a claim against defendant, upon which relief can be granted." The court granted two requests for continuances, one on Soley's motion. On August 3, 1966, the court heard arguments by Soley and two lawyers for the appellees and sustained the appellees' motion without giving any conclusory reason. No affidavits had been filed, but the trial judge did refer in the following manner to the record in the negligence suit against the bus company, which suit he had tried:

"* * * and the Court having heard the arguments of respective counsel and having referred to the record of the case of Benjamin Polycarpo Soley, Plaintiff, v. Canal Zone Bus Service, Defendant, Civil No. 5173, Balboa Division of the United States District Court for the Canal Zone, and finds that the motion to strike should be sustained and the plaintiff\'s complaint dismissed with prejudice. * * *"

We start from the proposition that Soley in his complaints did state a claim upon which relief could be granted. The "plaintiff's checklist" of allegations in a libel action — publication, untruth, damages, and even malice — was presented to the court in some manner. Because the appellees' motion to strike the complaint failed to rebut any specific contention or to offer an affirmative defense,² the trial judge evidently came upon some evidence outside the pleadings which he felt justified the dismissal. Perhaps Soley admitted during an oral hearing that his claim was groundless. (Unfortunately, the hearings were not transcribed.) More likely is the assumption that the trial judge found the newspaper article to be true. Although we have no such statement in the record before us, the trial judge's reference to the negligence action indicates that evidence of Soley's prior treatment for back pains and impotence had been adduced at the negligence trial.³

We are advised by Fed.R.Civ. P. 12(b) that a trial court may, in its consideration of a motion to dismiss, treat it as a motion for summary judgment and consider evidence outside the pleadings.⁴ Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 5 Cir. 1967, 373 F.2d 493, 496, cert. den., 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120; Fowler v. Southern Bell Tel. & Tel. Co., 5 Cir. 1965, 343 F.2d 150, 153; Gager v. "Bob Seidel," 1962, 112 U.S.App.D.C. 135, 300 F.2d 727, 731, cert. den., 370 U.S. 959, 82 S.Ct. 1612, 8 L.Ed.2d 825. However, before summary judgment can be granted, the trial judge must be convinced "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). National Screen Service Corp. v. Poster Exchange, Inc., 5 Cir. 1962, 305 F.2d 647, 650-651, Brunswick Corp. v. Vineberg, 5 Cir. 1967, 370 F.2d 605, 611-612. He must not grant summary judgment merely because the complaint and papers in support thereof are drawn unskillfully. Fowler v. Southern Bell Tel. & Tel. Co., supra; Wittlin v. Giacalone, 1946, 81 U.S.App.D.C. 20, 154 F.2d 20, 22 (quoting Professor Moore). Nor may he overlook a factual issue even if the parties stipulated that none existed. United States v. Mullins, 4 Cir. 1965, 344 F.2d 128.

We are not chary of summary judgments, but the mechanics leading to such a judicial denouement should lend themselves to clarification rather than obfuscation.

In the case at bar the appellees submitted no affidavits to support the summary judgment, and yet such remedy was granted. The court sua sponte furnished the evidence. Moreover, although the judge evidently referred to something in the record of the negligence action, he did not advise the adverse litigants and counsel in their adversary pits. The following analysis by the the Tenth Circuit is relevant:

"The rules relative to the proper use of summary judgment are now well established. See United States v. Kansas Gas and Electric Co., 10 Cir., 287 F.2d 601, and cases cited therein. The remedy is proper where no disputed question of fact is determinative of duty or right and a formal trial would add nothing to the case. But the remedy is drastic, Hunt v. Pick, 10 Cir., 240 F.2d 782, and allows no room for speculation as to the factual background nor the dispositive legal ruling. Here we are not aided by findings, stipulations, pre-trial order or complete discovery admissions. The motion for summary judgment and the order of the court are silent as to what facts form the background for the judgment and are equally silent as to legal grounds. And although we have sometimes assumed the burden of isolating a dispositive legal ground upon clear and undisputed facts, cf. Hunt v. Pick, supra, we are unwilling to sustain a summary judgment where the record is unclear to us on both fact and the legal theory forming the basis of the ruling." Atkinson v. Jory, 10 Cir. 1961, 292 F.2d 169, 171, quoted at Frey v. Frankel, 10 Cir. 1966, 361 F.2d 437, 442.

We are cognizant of the general rule which permits judicial notice of a court's prior cases to support a motion for summary judgment. Ellis v. Cates, 4 Cir. 1949, 178 F.2d 791, 793, cert. den., 1950, 339 U.S. 964, 70 S.Ct. 999, 94 L.Ed. 1373; Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 1942, 133 F.2d 395, cert. den. 1943, 319 U.S. 755, 63 S.Ct. 1163, 87 L.Ed. 1708; Ackermann v. United States, 5 Cir. 1949, 178 F.2d 983, 985-986, affirmed, 1950, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207. But cf. Guam Investment Co. v. Central Bldg., Inc., 9 Cir. 1961, 288 F.2d 19, 23-24; Funk v. C. I. R., 3 Cir. 1947, 163 F.2d 796, 800-801; Grand Opera Co. v. Twentieth Century-Fox Film Corp., 7 Cir. 1956, 235 F.2d 302, 307. But the trial court in this case did not inform the parties as to what he noticed. In his order he said he "referred to" the record in the negligence action. Does this mean that he physically and contemporaneously had it before him? Was the record in the courtroom available to counsel and litigants and the court reporter? "To refer" means to allude to or consider. Perhaps the trial judge merely indulged in remembrances of things past.

The appellees would have us soothe our doubts by procedural sedative. They argue that, because Soley has failed to include in the record on appeal the complete transcript of the negligence action, we have no grounds upon which we can reverse the trial court. See footnote 2, supra. However, Soley did file a notice of appeal in which he listed assignments of error and points on appeal. Granted, his points, which were signed by Soley "in Defensa Propria," are sparse on relevancy and lack any sense of cohesion. But we find them sufficient to alert the appellees as to why the summary judgment was being challenged. Moreover, the appellees' own brief acknowledges their complete understanding of the nature of the challenge.

The appellees do not claim lack of notice, nor do they attempt to fill the substantive gap with evidence supporting the summary judgment. Instead, they rest their case on the niceties of federal appellate practice. They rely on our Court's lack of patience with appellants who claim specific trial errors but neglect to use the available means of including such errors in the record. Kayo Oil Co. v. Sammons, 5 Cir. 1963, 321 F.2d 729, 731; Murphy v. St. Paul Fire and Marine Ins. Co., 5 Cir. 1963, 314 F.2d 30, cert. den., 375 U.S. 906, 84 S.Ct. 197,...