Fine v. Paramount Pictures, 9510.

• Decision Date: 22 January 1949
• Docket Number: No. 9510.,9510.
• Citation: 171 F.2d 571
• Parties: FINE v. PARAMOUNT PICTURES, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

171 F.2d 571 (1948)

FINE v. PARAMOUNT PICTURES, Inc.

No. 9510.

United States Court of Appeals Seventh Circuit.

November 26, 1948.

Rehearing Denied January 22, 1949.

Laurence M. Fine and Harry C. Diamond, both of Chicago, Ill., for appellant.

Herbert M. Lautmann, Isaac E. Ferguson, Otto Kerner, Jr., U.S. Atty., and Wm. S. White, Jr., and John Peter Lulinski, Asst. U.S. Attys., all of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and SPARKS, Circuit Judge, and BRIGGLE, District Judge.

BRIGGLE, District Judge.

In this case suit was instituted in the Superior Court of Cook County against two federal officers. Hugh F. Gordon, Special Agent, Federal Bureau of Investigation and Edmund Johnson, Assistant United States Attorney and against Paramount Pictures, Inc., and its Chicago Branch Manager, J. Harold Stevens, and was removed by certiorari to the United States District Court for the Northern District of Illinois.

The District Court on February 21, 1947 allowed the motion of defendants Gordon and Johnson for judgment on the pleadings and dismissed the cause as to them. On May 20, 1947 the District Court allowed the motion of defendants Paramount Pictures, Inc., and Stevens for summary judgment. This appeal, taken on August 19, 1947, is from both judgments.

The plaintiff, Charles Fine, in his complaint charged that on December 7, 1945, the defendants maliciously and with intent to injure the plaintiff, and wholly without reasonable or probable cause, and against the will of the plaintiff, directed, caused and procured the plaintiff to be seized and laid hold of, with force and violence, and to be pulled and dragged about, and to be forced and compelled to go in and along divers public streets; to be imprisoned, restrained, confined in the County Jail, deprived of his liberty, and to be and remain in technical custody of the United States Marshal. The plaintiff alleged compensable injuries had been sustained by virtue of his wrongful imprisonment and claimed damages of $100,000.

To this complaint, defendants Gordon and Johnson each filed separate answers denying the material allegations thereof and asserting as a separate defense that the complaint failed to state a claim upon which relief could be granted. They also asserted affirmatively, non-liability because the acts complained of fell within the scope of their respective duties as Special Agent of the F.B.I. and Assistant United States Attorney.

Subsequently, defendants Gordon and Johnson filed their joint motion asking the Court to enter judgment on the pleadings in their behalf for the reasons: (1) That plaintiff's complaint failed to state a claim upon which relief could be granted, and (2) that the acts complained of fell within the scope of their official duties. This motion the District Court allowed on February 21, 1947, and dismissed the suit as to them.

Paramount Pictures, Inc., and J. Harold Stevens by their answer generally denied the facts alleged in the complaint and alleged that plaintiff in some manner possessed himself of a print of the moving picture "Going My Way", which he offered to sell to Paramount; that these defendants knew that a print of that picture was never sold but only licensed for exhibition; that plaintiff refused to explain to these defendants how he obtained the film; that they caused a report to be made to the Federal Bureau of Investigation who entirely on their own initiative took the plaintiff into their custody; that these defendants neither filed nor signed any complaint or criminal charge against the plaintiff, nor requested his arrest, nor caused his imprisonment.

Thereafter, on March 6, 1947, defendants Paramount and Stevens made their motion for summary judgment based upon (1) the pleadings, (2) the order dismissing defendants Gordon and Johnson, (3) the deposition, previously taken by the plaintiff of defendant Hugh F. Gordon and (4) the accompanying affidavit of J. Harold Stevens, which motion was allowed by the Court and summary judgment entered in favor of these defendants and against plaintiff on May 20, 1947.

The substance of the deposition of defendant Gordon is that he arrested Charles Fine, without a warrant, by prearrangement with defendant Stevens and the defendant Johnson. Stevens had advised Gordon that Fine had appeared at Paramount's Chicago office and offered to sell a film, "Going My Way", for a sum of money and Gordon agreed to keep the date and arrest Fine. The serial numbers of the bills to be paid Fine were listed by Stevens' secretary pursuing an arrangement previously worked out in detail by Gordon and Stevens so that the money would be seized from Fine for "potential evidence." At the appointed time Fine delivered the film, two hundred dollars was paid to him by Stevens, and both Fine and the money were seized by Gordon. At the time of the arrest, Fine stated he had obtained the film at the Salvage Department of the Railway Express Company. Thereafter Gordon had a conversation with one Foy, of the Railway Express Company, who confirmed Fine's statement. Stevens had told him a check had been made of the records in the Chicago office of Paramount and disclosed there was no such film known to be missing.

The deposition of Gordon was filed in the office of the Clerk on March 6, 1947, and was not before the court at the time Johnson and Gordon's motion for judgment on the pleadings was ruled on by the lower court.

By his affidavit, supporting the motion of Paramount and himself for summary judgment, Stevens affirmed that ...