Ginsburg v. Black, 11595.
Decision Date | 26 November 1956 |
Docket Number | No. 11595.,11595. |
Citation | 237 F.2d 790 |
Parties | Paul GINSBURG, Plaintiff-Appellant, v. John D. BLACK et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
Paul Ginsburg, Pittsburgh, Pa., for appellant.
George B. Christensen, R. Lawrence Storms, Chicago, Ill., for appellees, Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel.
Thomas A. Reynolds, Chicago, Ill., pro se and as attorney for other appellees.
Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.
From the district court's summary judgment in favor of defendants entered in plaintiff's action to recover damages for libel, plaintiff appeals.
All of the parties to this suit are lawyers. Plaintiff and defendants are members of the American Bar Association, a voluntary association.
The complaint charges, inter alia:
The complaint charges that these publications were false, malicious and published with intent and purpose of injuring him in his professional reputation and standing.
By their answer, defendants, as to the matters set forth in paragraphs 8th and 9th of the complaint, although admitting the filings alleged, deny that they or their attorneys, agents, servants or employees published, within the meaning of the law of libel, any memorandum or document whatsoever.
In answer thereto, plaintiff admitted that defendants received said notice.
Defendants thereafter made a motion for summary judgment in their favor, which was granted by the district court. Plaintiff's appeal followed.
We shall affirm the judgment below. We base our action upon grounds different from those relied upon by the district court. This we have a right to do. Kithcart v. Metropolitan Life Ins. Co., 8 Cir., 150 F.2d 997, 1000; Securities and Exchange Comm. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626.
In this court, plaintiff, arguing orally pro se, stated substantially as follows: defendants caused to be prepared a memorandum in opposition to the appeal of plaintiff before the Committee on Hearings, together with a number of copies thereof, and filed same with the chairman of that committee; that, in accordance with the rules of procedure of the American Bar Association, these copies were sent out by the committee chairman to each of the members, who were in the states where the publication allegedly occurred.
An essential ingredient of any definition of "libel" is a publication by the author or by his authority, 53 C.J.S., Libel and Slander, § 149, p. 232. The uncontroverted facts in this record reveal the absence from plaintiff's case of this ingredient.
Plaintiff, in attempting to charge defendants with a publication, alleges that they, by themselves, their attorneys, agents, servants, and employees, caused to be filed and published at sic Illinois, Kentucky, New York, Vermont, Tennessee, Utah, Colorado, Pennsylvania, Massachusetts and at other places throughout the United States, the alleged libelous writing, "in which said publication, widely publicized as aforesaid and particularly throughout the legal profession, defendants did print and distribute the alleged defamatory matter". It is clear that the word "filed" relates only to the lodging of alleged defamatory matter with someone. That person is not specifically identified by the complaint. However, plaintiff's statement to this court during oral argument has made it clear that the filing was with the chairman of the Committee on Hearings of the American Bar Association. This filing necessarily occurred at one place and, therefore, the language "at Illinois, Kentucky" etc. could not refer to the filing and must refer only to the word "published" immediately preceding that language. The subsequent langauge of the 8th paragraph, charging that defendants did print and distribute the alleged defamatory matter, necessarily uses those verbs to describe the means of publication immediately theretofore referred to. The question then arises as to whether plaintiff has charged a publication by the defendants. Having distinctly charged that defendants "by themselves, their attorneys, agents, servants and employees" (whom we shall, for brevity, sometimes herein refer to as "their agents") "did cause to be filed" (with the committee chairman), plaintiff now contends that defendants are liable to plaintiff on the ground that they or their agents published the alleged libelous matter in the various states mentioned.
Plaintiff does not contend that the mere filing of the memorandum with the chairman of the committee constituted a publication of its contents. He has cited no case so holding as a matter of law. There is no showing that, as a matter of fact, documents filed with a committee chairman of the bar association are records which may be read by any...
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