Golden North Airways v. Tanana Publishing Company

• Decision Date: 12 January 1955
• Docket Number: No. 13415.,13415.
• Citation: 218 F.2d 612
• Parties: GOLDEN NORTH AIRWAYS, Inc., a Corporation, Appellant, v. TANANA PUBLISHING COMPANY, Inc., a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F.2d 612 (1954)

GOLDEN NORTH AIRWAYS, Inc., a Corporation, Appellant, v. TANANA PUBLISHING COMPANY, Inc., a Corporation, Appellee.

No. 13415.

United States Court of Appeals, Ninth Circuit.

December 10, 1954.

Rehearing Denied January 12, 1955.

COPYRIGHT MATERIAL OMITTED

Warren A. Taylor, Taylor & Boggess, Fairbanks, Alaska, Bassett, Geisness & Vance, Seattle, Wash., for appellant.

Maurice T. Johnson, Hubert A. Gilbert, Fairbanks, Alaska, Richard P. Norton, Maynard Garrison, Wallace, Garrison, Norton & Ray, San Francisco, Cal., for appellee.

Before ORR and POPE, Circuit Judges, and YANKWICH, District Judge.

YANKWICH, District Judge.

The appellant corporation, organized and existing under the laws of the Territory of Alaska, instituted this action in the United States District Court for the Territory of Alaska, Fourth Division, against the appellee, a corporation organized under the laws of the Territory of Alaska, and owner and publisher of the daily newspaper known as the Fairbanks Daily News-Miner, published at Fairbanks, Alaska.

The amended complaint, filed August 11, 1950, charged libel through the publication by the appellee of the article which is printed in the margin.¹

The appellant selected the portions of the article which it claimed were written concerning it. The amended complaint recited that the appellees caused to be published in its newspaper "an editorial containing statements concerning all non-scheduled air carriers operating in Alaska, of which the Plaintiff is one, and which as to this Plaintiff were libelous, including the following:

"`They (referring to all non-scheduled air carriers) are unable to comply with the requirements of financial responsibility, preventive maintenance, inspection, accounting and innumerable other requirements necessary to operate safely, efficiently and enonomically.'

and:

"`These (referring to all non-scheduled air carriers) non-certificated carriers are generally spending their stockholders' money in operating expenses, running up bills for labor, rent, taxes, etc., which they cannot pay, carrying no insurance and withdrawing from Alaska in the winter when revenues fall off.'"

Damages in the sum of $50,000.00 was asked.

The selection of these portions of the editorial as the gist of the libel against the appellant has a double significance in this case: (1) As the appellant was not referred to by name, it was necessary that it make itself a part of a small group whose acts were criticized in these portions of the article, and (2) the cause was tried and submitted to the jury upon the theory that appellant was entitled to recover only if the jury found the article referred to the whole group of which the plaintiff was a member.

In its answer, the appellee admitted publication of the editorial and pleaded that the complaint did not state a claim, that the article did not refer to the appellant by name, that, indeed, it did not defame any ascertainable person, and that the article was a fair and impartial comment made in good faith upon a matter of public interest and without malice towards anyone.

Upon the trial of the cause testimony was offered on the part of the appellant that the words "non-scheduled" had acquired a popular meaning and included a small group of not to exceed five or ten companies in Alaska of which they were one. The testimony of the witnesses for the appellee was to the effect that the term has no meaning in aeronautics and that it is broad enough to include large numbers of carriers. Other testimony need not be referred to.

The court instructed the jury that the article was libelous and that the defense of the fair comment had not been proved. Both of these instructions were excepted to. A.C.L.A.1949, § 55-7-121; Copper River & Northwestern Ry. Co. v. Reeder, 9 Cir., 1914, 211 F. 280, 284-286. The Court submitted eight questions to the jury. They, with the answers returned on April 22, 1952, were as follows:

"Question No. 1: In Alaska, on or about the 15th day of May, 1950, did the portion of said editorial, Exhibit A attached to plaintiff\'s second amended complaint herein, which is in words as follows:

"`They are unable to comply with the requirements of financial responsibility, preventive maintenance, inspection, accounting and the innumerable other requirements necessary to operate safely, efficiently, and economically.\'

"`These non-certificated carriers are generally spending their stockholders\' money in operating expenses, running up bills for labor, rent, taxes, etc., which they cannot pay, carrying no insurance and withdrawing from Alaska in the winter when revenues fall off.\'

refer to and mean all air carriers classified as large irregular air carriers operating in Alaska that were certificated and authorized to make non-scheduled flights but did not have a certificate of convenience and necessity authorizing them to make scheduled flights?

"Answer: Yes.

"If you have answered `Yes\' to the last preceding question, then answer the following question: otherwise skip it.

"Question No. 2: Approximately how many of said large irregular air carriers mentioned in the last preceding question were there operating in Alaska at said time?

"Answer: 5-10.

"Question No. 3: In Alaska on or about the 15th day of May, 1950, did the portion of said editorial Exhibit A attached to plaintiff\'s second amended complaint herein, which is quoted in Question No. 1, refer to and mean all air carriers operating at said time and place that did not have a certificate of convenience and necessity authorizing them to fly regular schedules?

"Answer: No.

"Question No. 4: If you have answered `Yes\' to the last preceding question, then answer the following question; otherwise skip it, to wit: How many of the air carriers mentioned in the last preceding question and answer were there?

"Answer:

"Question No. 5: In Alaska, on or about the 15th day of May, 1950, did the portion of said editorial, quoted in Question No. 1 hereof, refer to and mean by the words noncertificated or non-scheduled air carriers all air carriers operating in Alaska at said time that did not have a certificate of convenience and necessity and also mean and include all air carriers that did have certificates of convenience and necessity if and when they were making a flight which was not a regularly scheduled flight?

"Answer: No.

"Question No. 6: If you have answered `Yes\' to the last preceding question, then answer the following question; otherwise skip it, to wit: How many of the air carriers mentioned in the last preceding question and answer were there?

"Answer:

"Question No. 7: In Alaska, on or about the 15th day of May, 1950, did the portion of said editorial quoted in Question No. 1 hereof refer to and mean all non-scheduled air carriers operating in Alaska at said time?

"Answer: No.

"Question No. 8: In what sum of money, if any, was plaintiff damaged by reason of said libelous words set forth in Question No. 1 hereof?

"Answer: $25,000.00." ^*

Each of the parties submitted a proposed judgment. After extended discussions, the court set aside the verdict of the jury and gave judgment in favor of the appellee on May 5, 1952. The basis for its ruling was this:

"When the plaintiff tendered a second amended complaint the main thing they wanted to put in was the fact which comes in the fourth paragraph, in which they said defendant caused to be published in its newspaper an editorial containing statements concerning all non-scheduled air carriers — of which the plaintiff is one, and considerable law was cited showing that that was the law, that if the libelous matter was against a group or a class, if it was a small class, then every person in that class had a cause of action for the libelous matter. With that in mind the plaintiff amended so as to say that the newspaper article concerned the non-scheduled air carriers operating in Alaska, of which the plaintiff is one.

"Now, then, the plaintiff had to prove that. They had to prove that all of the non-scheduled air carriers were mentioned by the libelous article and were intended to be mentioned by the libelous article. So the jury was then asked, so as to get this statement decided, to get them to decide whether there was a small group or class mentioned by the libelous article and whether or not plaintiff was one of them. There wasn\'t any doubt all the evidence showed that plaintiff was one of them, but the question was whether every one of the non-scheduled air carriers were mentioned. The question to the jury was: did the libelous portion of the editorial refer to and mean all non-scheduled air carriers operating in Alaska at said time? Those were plaintiff\'s own allegations that it did, that the libelous article did refer to all of the non-scheduled carriers and that they were one of them, including themselves. The jury says no, that didn\'t refer to all of those carriers, which it seems to me takes away plaintiff\'s cause of action." (Tr. p. 271.)

This is an appeal from the judgment.

The first question to determine is whether the answer of the jury to Question No. 7 was inconsistent with the award of damages to the appellant under question No. 8.

I General And Special Verdicts

The law of Alaska recognizes special verdicts and findings on particular questions of fact. A.C.L.A.1949, §§ 55-7-81, 55-7-87. They also specifically provide that where a special finding of fact is inconsistent with the general verdict "the former shall control the latter, and the court shall give judgment accordingly". A.L.C.A.1949, § 55-7-85. This is also the general rule. Rule 49, Federal Rules of Civil Procedure; 53 Am.Jur., Trials, § 1084; Prentice v. Zane's Administrator, 1850, 8 How. 470, 483-484, 12 L.Ed. 1160; Graham v. Bayne, 1855, 18 How. 60, 63, 15 L.Ed. 265; Skidmore v. Baltimore & O. R. Co., 2 Cir., 1948, 167 F.2d 54, 65-70. It is also the rule that if the special verdict or special findings can be reconciled...