Estill v. Hearst Publishing Co.

• Decision Date: 29 January 1951
• Docket Number: No. 10272.,10272.
• Citation: 186 F.2d 1017
• Parties: ESTILL v. HEARST PUBLISHING CO., Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

186 F.2d 1017 (1951)

ESTILL v. HEARST PUBLISHING CO., Inc.

No. 10272.

United States Court of Appeals Seventh Circuit.

January 29, 1951.

COPYRIGHT MATERIAL OMITTED

Charles Dean Connor, Harry S. Ditchburne, Chicago, Ill., George Cohan, Gary, Ind., for appellant.

Floyd E. Thompson, Roger W. Barrett, Chicago, Ill., Poppenhusen, Johnston Thompson & Raymond, Chicago, Ill., of counsel, for appellee.

Before MAJOR, Chief Judge, and KERNER and LINDLEY, Circuit Judges.

KERNER, Circuit Judge.

This appeal is from an order granting defendant's motion to dismiss and dismissing a complaint in two paragraphs charging libel and invasion of plaintiff's right of privacy.

The offending matter was contained in the first of a series of six feature stories written by Elgar Brown with the foreword on the last five that they were "on the blood-smeared career of the late outlaw, John Dillinger, whose influence on those with whom he came in contact was completely evil. The series was inspired by the recent death, in squalor, of Patricia Cherrington, Dillinger gang `moll'." The stories were published on successive days from May 8 to May 13, 1949, in the Chicago Herald-American, a newspaper having extensive circulation, according to the complaint, in Lake County, Indiana, where plaintiff, a lawyer, resides and practices his profession.

The first story carried a bold headline, "How Dillinger Curse Pursued Pals to Grave," and the following subcaption:

"(Some people are drawn to the vultures of crime like flies into a web. The lure is tawdry and mean and gaudy with false glamor. It's a fatal attraction.

"Greed or distorted vanity led many to serve John Dillinger in that brutal killer's epic career of outlawry. This series, inspired by the recent squalid death of Dillinger gang moll Patricia Cherrington, shows that the bandit chief's influence was wholly evil and that none escaped the Dillinger curse.)"

This first story was illustrated by three pictures, one of which was of Dillinger and plaintiff, taken in 1934 at a time when Dillinger had been captured in Arizona and brought back to Indiana and lodged in a jail in Crown Point from which he escaped a short time later. It showed Dillinger standing next to plaintiff with one hand on his shoulder, with the caption below: "Victim of the Dillinger curse was Robert Estill, Lake County, Indiana, prosecuting attorney, who foolishly struck a friendly pose with the noted outlaw. The killer's subsequent toy-gun escape from a Hoosier jail spelled the end of Estill's career. He was virtually laughed out of office and public life." The article also contained the following text:

"Posed with Arm About Bandit

"Probably the most innocent of all the victims was Prosecutor Robert Estill of Lake County, Ind.

"Estill felt so expansive when they brought Dillinger to Crown Point for a too-brief sojourn in the county jail that he posed for pictures with an arm about John in an apparently brazen show of friendship and admiration.

"It was literally a fatal mistake. Following Dillinger's epic crashout with a wood-carved gun, Estill lived long enough to be laughed out of office. Then, a broken man, he died."

The picture and its accompanying descriptive matter and the text set forth above are the only reference to plaintiff by name in the entire series. Otherwise the stories pictured the lurid career of Dillinger in crime and the part played by his various associates, and described the bad end to which, according to the stories, they all came, without exception.

The complaint asserts that the statements relating to plaintiff by name, taken in connection with the statements contained in the entire series, constituted an inference or innuendo that he was a crony, pal, friend and admirer of the outlaw and one of his many associates who participated in his escapades, and that the series classified him as one of a group of the various characters who were criminals or had criminal associations or tendencies, all of whom were intimate pals or cronies of Dillinger and came under the spell of his curse and for that reason to an evil end. Plaintiff denied that he was "laughed out of office" and alleged that he had been actively engaged in political activities and had held public office since "said date" and that he had engaged in the practice of law for 25 years and had enjoyed an excellent reputation among the members of his profession and the citizens of the county and state. He also denied any association with or admiration for the desperado.

Defendant's motion on which the dismissal was predicated stated the following grounds:

1. The facts alleged do not state a cause of action under the general law of libel or under the law of Indiana.

2. The publication complained of is not actionable because it does not impeach the honesty, integrity, virtue or reputation of the plaintiff.

3. Defendant has complied with the Indiana Retraction Statute, and therefore according to the express provisions of the statute, plaintiff can recover only actual damages. Since the complaint contains no allegations of actual damages, it does not state a cause of action.

4. The complaint does not state a cause of action because statements of opinion are not actionable.

5. The complaint does not state a cause of action because no facts are alleged showing special damages. No facts are set forth showing financial injury to plaintiff.

6. The complaint does not state a cause of action because no facts are alleged showing actual malice or ill will on the part of the defendant.

7. The words referring to plaintiff's apparent show of friendship for Dillinger, to plaintiff's being laughed out of office, and to plaintiff as a broken man are fair comment on and criticism of a matter of public interest and therefore not actionable.

8. Count II does not state a cause of action for invasion of plaintiff's right of privacy because no right of plaintiff was violated, and because the complaint shows that plaintiff voluntarily posed for the photograph complained of and thereby waived any such right; that plaintiff was a public person; that the publication was within the privilege of the press; and that no privacy of the plaintiff was invaded by this defendant.

Of course, if any of the first seven grounds and the eighth are good, then the complaint was properly dismissed even though the court did not indicate on which of them it based its action. The question presented is whether any of them is sufficient as a matter of law to warrant the dismissal of the cause without hearing.

In this court defendant asserts first that the complaint does not affirmatively show that plaintiff has complied with the Indiana statute concerning actions for libel in newspapers and therefore the complaint was properly dismissed. It refers to § 2-1043, Burns' Ann.Stat., which provides: "Before any suit shall be brought for the publication of a libel in any newspaper in this state, the aggrieved parties...