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 |
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.
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:
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:
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.
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...
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