Browder v. Cook

• Decision Date: 29 March 1945
• Docket Number: No. 1560.,1560.
• Parties: BROWDER v. COOK et al.
• Court: U.S. District Court — District of Idaho

59 F. Supp. 675

BROWDER v. COOK et al.

No. 1560.

District Court, D. Idaho, N. D.

March 29, 1945.

Robertson & Smith, of Spokane, Wash., and Donald L. Burcham, of Oakesdale, Wash., for plaintiff.

William D. Keeton, of St. Maries, Idaho, W. F. McNaughton, of Coeur d'Alene, Idaho, and Lester P. Edge, of Spokane, Wash., for defendants.

CLARK, District Judge.

This is an action brought by Ralph V. Browder against Fulton Cook and Mrs. Fulton Cook, A. M. Quane and Mrs. A. M. Quane, for alleged libel. The action was dismissed as to Mrs. Cook and Mrs. Quane before the case was tried on its merits. The facts are fully stated in the opinion filed June 16th, 1944, D.C., 59 F. Supp. 225.

Fulton Cook and A. M. Quane were sued jointly; separate answers were filed. On the trial of the case the attorneys made a joint defense. The jury returned a verdict against Fulton Cook for $10,000 and against A. M. Quane for $500. Judgment was entered on the verdicts.

The defendants moved for judgment notwithstanding the verdict; each defendant filed a separate motion. Both motions are identical; one filed on behalf of Fulton Cook and one on behalf of A. M. Quane and are as follows:

"Defendant A. M. Quane moves to have the verdict against him and any judgment entered thereon, set aside and to have judgment entered in accordance with his motion for a directed verdict.

"If the foregoing motion be denied, said defendant moves that a new trial be granted to him on all of the issues for each and all of the following reasons materially affecting his substantial rights:

"(1) Irregularity in the proceedings of the Court, jury or adverse party, or any order of the Court or abuse of discretion by which the losing party was prevented from having a fair trial;

"(2) Misconduct of the jury;

"(3) Accident or surprise which ordinary prudence could not have guarded against;

"(4) Excessive damages appearing to have been given under the influence of passion or prejudice;

"(5) Insufficiency of the evidence to justify the verdict, judgment or other decision; and that it is against law;

"(6) Error in law occurring at the trial.

"This application is made upon the pleadings and papers on file and upon the minutes of the Court.

"The particular errors in law relied upon are as follows:

"(a) In permitting the plaintiff during the selection of the jury to exercise four peremptory challenges.

"(b) In not sustaining defendant's motion for a directed verdict at the close of the evidence offered by plaintiff.

"(c) In permitting plaintiff to interrogate defendant concerning the nature, extent and value of his property.

"(d) In refusing to sustain defendant's motion for a directed verdict made at the close of all the evidence.

"(e) In refusing the request of defendant's counsel that the Court instruct the jury to disregard the remarks of plaintiff's attorney, during the argument, to the effect in substance that the case would not be submitted to them unless there was a cause of action against the defendants.

"(f) In submitting to the jury forms of verdicts permitting and authorizing the jury to return separate verdicts against the respective defendants in different amounts, and in permitting the jury to return two verdicts in different amounts, and in directing the clerk to file both verdicts.

"The particulars wherein the evidence is claimed to be insufficient are as follows:

"(a) In that the evidence did not establish that the publication was false in any respect.

"(b) In that the matter complained of consisted of statements of fact which were neither admitted to be true or proven to be true and comment thereon; and that such comment was only criticism of the established facts, and was only such comment or criticism as a reasonable man might make.

"(c) In that the evidence did not show that the plaintiff sustained any real or actual damage on account of the publication.

"(d) In that there was no evidence that the publication was malicious, and that the undisputed evidence showed that the publication was without malice, spite or ill will toward the plaintiff, and that the publication was occasioned by the plaintiff's own acts."

The first point urged on the presentation of the motion is:

That a motion for a directed verdict at the close of the evidence should have been granted, and that judgment notwithstanding the verdict should now be granted because, according to the evidence no facts were falsely stated and comments thereon cannot reasonably be construed as charging anything more than the admitted facts.

A directed verdict is proper only where there is no fact question for the jury. Adams County v. Meadows Valley Bank, 47 Idaho 646, 277 P. 575.

The question presented on a motion to direct a verdict is whether, admitting the truth of all the evidence given in favor of the party against whom the action is contemplated, together with such inferences as may reasonably be drawn from it, there is enough evidence reasonably to sustain a verdict in accordance therewith, and, where the evidence is conflicting, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated from consideration, leaving the evidence only which is favorable to the party against whom the motion is leveled. Keane v. Pittsburg Lead Mining Co., 17 Idaho 179, 105 P. 60; Moody v. Morris-Roberts Co., 38 Idaho 414, 226 P. 278; McCornick & Co. v. Tolmie Bros., 42 Idaho 1, 243 P. 355. The Circuit Court of Appeals of the Ninth Circuit has so held in the case of United States v. Meserve, 9 Cir., 44 F.2d 549-552; Corrigan v. United States, 9 Cir., 82 F.2d 106-109. Without detailing the evidence in the case, there was ample evidence to submit the case to the jury.

The next point urged is that the publication was privileged. This was passed upon by the court in the opinion filed in this case June 16, 1944. Since writing that opinion the court has read the opinion in the case of Dwyer v. Libert, 30 Idaho 576-584, 167 P. 651, 652, Ann.Cas. 1918B, 973, wherein the Supreme Court of Idaho said: "In a case of this kind the communication is qualifiedly privileged, and in order for one who makes such publication to claim the benefit of the privilege the statement must be made in good faith and in the absence of malice. In the case of Foster v. Scripps, 39 Mich. 376, 33 Am.Rep. 403, we find the following: `But where a person occupies an office like that of a city or district physician, not elected by the public, but appointed by the council, and subject only to removal by the council, we have found no authority, and we think there is no reason, for holding any libel privileged, except a bona fide representation, made without malice to the proper authority, complaining on reasonable grounds.' * * * The question of the good faith of the publication and the absence of malice, under the evidence, was properly left for the jury to determine."

The Supreme Court of Idaho further states in this opinion: "The question of the good faith of the appellant in filing the charges, and as to whether he was actuated by malice, was, under instructions of the court, properly left to the jury, and its finding thereon will not be disturbed."

Whether this article imported a defamatory meaning is for the jury. Where in the light of the circumstances they are susceptible of such a construction, where alleged libelous words are not libelous per se, it is error for the trial court to take from the jury the consideration of the meaning of such words. "It was for the jury, and not for the court, to determine the meaning of ambiguous language in the published article. Where words are libelous per se the judge can so instruct the jury, leaving to them only the determination of the amount of damages. Where the words are not libelous per se, and, in the light of the extrinsic facts averred, could not possibly be construed to have a defamatory meaning, the judge can dismiss the declaration on demurrer, or, during the trial, may withdraw the case from the jury. But there is a middle ground where, though the words are not libelous per se, yet, in the light of the extrinsic facts averred, they are susceptible of being construed as having a defamatory meaning. Whether they have such import is a question of fact. In that class of cases the jury must not only determine the existence of the extrinsic circumstances, which it is alleged bring to light the concealed meaning, but they must also determine whether those facts when coupled with the words, make the publication libelous." Baker v. Warner, 231 U.S. 588, 34 S.Ct. 175, 177, 58 L.Ed. 384.

The next point urged is that four peremptory challenges were exercised by the plaintiff. This was an unintentional error. The defense did not object but called it to the attention of the court. The court advised counsel that if they desired they might have an additional challenge. They did not object to this arrangement, but they did not exercise it, announcing in open court that they accepted the jury. They are in no position, after accepting the jury without objection, to complain at this late date.

The next point urged was improper argument. As to just what counsel said to the jury is not clear in the court's mind. It is the court's recollection that what counsel said was in answer to the law argument that was made by counsel for defendants, when defendants objected to the argument the court said: "Yes that is right, both counsel have gone too far afield in the argument." After this statement there was no further complaint. It is the duty of the court and counsel to keep the argument within due bounds. The court has only its independent recollection of the argument as there is no record to refer to, but that recollection is that what was said by counsel for the plaintiff was more or less in reply to the argument on a question of law made by counsel for the defendants. Both arguments, if the court's recollection is correct, should...