Factor v. Carson, Pirie Scott & Company

• Decision Date: 10 May 1968
• Docket Number: No. 16000.,16000.
• Citation: 393 F.2d 141
• Parties: John FACTOR, Plaintiff-Appellant, v. CARSON, PIRIE SCOTT & COMPANY, Kroch's & Brentano's, Inc., The Fair, Illinois corporations, and Ray Brennan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 141 (1968)

John FACTOR, Plaintiff-Appellant, v. CARSON, PIRIE SCOTT & COMPANY, Kroch's & Brentano's, Inc., The Fair, Illinois corporations, and Ray Brennan, Defendants-Appellees.

No. 16000.

United States Court of Appeals Seventh Circuit.

March 13, 1968.

Rehearing Denied May 10, 1968.

Albert E. Jenner, Jr., Keith F. Bode, Robert E. Pfaff, Philip W. Tone, Chicago, Ill., for plaintiff-appellant, Raymond, Mayer, Jenner & Block, Chicago, Ill., of counsel.

Howard P. Robinson, George W. McBurney, Arthur F. Staubitz, Chicago, Ill., for defendant-appellee, Carson, Pirie Scott & Co.; Sidley & Austin, Chicago, Ill., of counsel.

Narcisse A. Brown, William F. McNally, Chicago, Ill., for defendant-appellee, The Fair.

Eloise Johnstone, Chicago, Ill., for defendant-appellee, Ray Brennan.

Jack Edward Dwork, Chicago, Ill., for defendant-appellee, Kroch's & Brentano's, Inc.

Before SCHNACKENBERG, Circuit Judge, KNOCH, Senior Circuit Judge, and SWYGERT, Circuit Judge.

Rehearing Denied May 10, 1968, en banc.

SCHNACKENBERG, Circuit Judge.

John Factor, plaintiff, a resident of California, has appealed from a judgment of the district court dismissing, on the authority of an Illinois statute of limitations,¹ his suit for libel and invasion of privacy, refiled in 1965.

The litigation is a result of the publication and sale of a book entitled "The Stolen Years" which plaintiff's counsel describe as a partially ghost-written autobiography of one Roger Touhy. Plaintiff maintains that the book charges him with perpetrating "one of the biggest swindles of its kind in history", and that, in addition, its principal theme is that plaintiff was guilty of perjury and conspiracy to obstruct justice, in connection with the conviction of Touhy for the kidnaping of plaintiff in the 1930's. Defendants moved to dismiss the suit on a number of grounds, including the statute of limitations.

An earlier suit on the same grounds as the instant action had been filed by plaintiff in the court below in December 1959.² The named defendants were and are citizens of Illinois although plaintiff alleged he was then a British subject. Touhy was a defendant in the 1959 case until his death. In that case jurisdiction was based on 28 U.S.C.A. § 1332(a) (2), which confers jurisdiction upon district courts in civil actions between citizens of a state and citizens or subjects of a foreign state.

When defendants moved to dismiss the 1959 action for lack of jurisdiction, contending that plaintiff, an alien, was not a citizen of Great Britain, the district court denied the motion. 230 F.Supp. 906 (Dec. 30, 1963). Following a subsequent trial on the issue of jurisdiction, the district court on December 23, 1964 dismissed the 1959 case on the ground that plaintiff failed to sustain his burden of proof of the existence of jurisdictional facts. The court's view of the evidence was that it tended to prove that plaintiff was born in Russian Poland rather than in Great Britain, and that, under the court's interpretation of Russian law, plaintiff was, at the time of filing of that action, a stateless person and so not able to invoke a federal court's jurisdiction under the alienage provision. See 238 F. Supp. 630. The court stated the action was dismissed with prejudice.³

On September 16, 1965, plaintiff refiled his suit which is the instant action, 65 C 1558. It is undisputed that plaintiff had become an American citizen in 1963 and was a resident of California. His counsel now insist that the jurisdictional defect which caused the dismissal of the 1959 action now constitutes no impediment to the 1965 action and that, in fact, federal jurisdiction exists in this action on the basis of diversity of citizenship.

It is undisputed that the 1959 action had been commenced within the one-year limitation period prescribed by Illinois law for actions to recover damages for libel and for the invasion of a right of privacy. Plaintiff's counsel argue that, when that action was nonsuited, the right to refile was governed by § 24a of the Illinois Limitations Act, which provides:

§ 24a In any of the actions specified in any of the sections of this act or any other act or in any contract where the time of commencement of any action is limited, if judgment shall be given for the plaintiff, and the same be reversed upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff has heretofore been nonsuited or shall be nonsuited then, if the time limited for bringing such action shall have expired during the pendency of such suit, the plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.

Thus plaintiff contends that the one-year limitation period for the libel suit ended during the pendency of the 1959 action, that the dismissal of that action for lack of jurisdiction constituted a "nonsuit" under § 24a,⁴ and that the case at bar had been filed within the one-year period after dismissal of the 1959 action. Plaintiff insists he meets every requirement expressed in § 24a. However the district court held that plaintiff's action would be barred by the limitations unless he could show that he had acted in good faith in the 1959 action, which meant, according to that court, that plaintiff must have believed, in good faith, that he was born in Great Britain, when he prosecuted that action.

The court then determined the "good faith" issue against plaintiff, on the basis of the trial on the issue of jurisdiction of the 1959 action, and dismissed the 1965 action. However, on plaintiff's motion to vacate that dismissal, the court consented to receive evidence and on May 27, 1966 did hold a hearing, but, over plaintiff's objection, imposed upon him the burden of disproving defendants' charges of bad faith in connection with the 1959 action. The court received the oral testimony of witnesses in court, as well as certain depositions and a number of exhibits produced by plaintiff, all of which we condense as follows:

Plaintiff\'s sister, Dena Lupu, a housewife, aged 76 years, living in Los Angeles, California, by deposition, testified her mother\'s name was Leah Factor and her father\'s name was Abraham Joseph Factor, both deceased; that she was born in Lodz, Russia-Poland, that she and plaintiff, her brother, came from there to the United States with their parents; that plaintiff when he came to the United States, spoke Jewish; that he was about two years younger than she; that at their home her parents told her that her brother John was born in England; that they never told her John was born any other place than England.

Ted Factor, plaintiff\'s nephew, testified by deposition that in 1924 or 1925 in his parents\' home in Chicago, when he was about nine or ten years old, his father who was about to go on a visit to Europe told him he was going to visit a brother in Hull, England, and that Ted\'s father stated Hull was the birthplace of John Factor, plaintiff here.

Ted Factor also recalled that other members of the family gave him the same information on other occasions, but that neither his father nor his uncle (plaintiff here) had ever told him the latter was born any place other than Hull, England.

Monte Factor, by deposition, testified that he is a nephew of plaintiff and also a son of Nathan Factor; that in his parents\' home in St. Louis, prior to 1924 and in Chicago, and Oakland and Los Angeles, California, in 1924 and 1925, he heard both of his parents state that his uncle, John Factor, was born in England. He never heard his parents say that John was born at any other place.

Jerome Factor testified that he is plaintiff\'s son, that his parents were divorced about 1917, and that he has had frequent contacts over the years with plaintiff; that between 1930 and 1933 he and plaintiff were looking through a box and came upon plaintiff\'s British passport, whereupon plaintiff said that he was a British subject and was born in Hull, England. Further, Jerome testified that about 1924 he had a conversation with his uncle, Nathan Factor, in his St. Louis home in the presence of the latter\'s wife, Rose, and their sons, Ted and Monte, when Nathan Factor stated that plaintiff had been born in Hull, England, and he was the only member of the Factor family born any place other than Russia-Poland; that plaintiff\'s father and mother had been in Hull at the time of plaintiff\'s birth and that after plaintiff\'s birth plaintiff had been taken back to Poland

Jerome also recalled that about 1926 he talked with plaintiff\'s sister, "Aunt Gussie", at her store on Roosevelt Road in Chicago, when she stated that plaintiff was born in England.

Retired Chicago attorney George Gale Gilbert, Jr., testified he met plaintiff in 1928 when he came to Gilbert for the purpose of making a will. Under Gilbert\'s questions, indicating the importance of the information he sought, plaintiff informed him that he was a British subject and that he was born in Hull, England. He produced a British passport which indicated that he had obtained it by representing that he was born in Hull, England.

Mr. Gilbert testified that he represented plaintiff in the federal district court in Chicago in the case of Faber, et al., v. Foreman Trust and Savings Bank, No. 10538, in the course of which he made an investigation concerning plaintiff\'s place of birth. This investigation included a discussion with plaintiff, three of his brothers, an examination of immigration records, and a further interview with a brother and with plaintiff. Gilbert named several of these relatives. Also in 1932 he interviewed plaintiff\'s brother, Max Factor, who was deceased at the time Mr. Gilbert testified, and from Max he got the family history including the fact that plaintiff was born in Hull,

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