Holden v. American News Co.

• Decision Date: 07 October 1943
• Docket Number: No. 323.,323.
• Citation: 52 F. Supp. 24
• Court: U.S. District Court — District of Washington
• Parties: HOLDEN v. AMERICAN NEWS CO. et al.

52 F. Supp. 24

HOLDEN v. AMERICAN NEWS CO. et al.

No. 323.

District Court, E. D. Washington, N. D.

October 7, 1943.

COPYRIGHT MATERIAL OMITTED

Edge, Davenport, Keith & dePender, of Spokane, Wash., and John T. Raftis, of Colville, Wash., for plaintiff.

Thomas A. E. Lally, of Spokane, Wash., for defendants.

SCHWELLENBACH, District Judge.

This is a libel action in which the defendants have interposed motions for judgment non obstante veredicto and for new trial after the return of a jury's verdict in favor of plaintiff. The article alleged to be libelous was published in the December 22, 1942, issue of Pic Magazine. The American News Company, a New York Corporation (hereafter called the Company) whose business it is to distribute magazines throughout the United States, and C. A. Hawksley, the local representative of the Company, are defendants. In the original complaint, Street & Smith Publications, Inc., a New York corporation which published the magazine, was also joined. I granted that defendant's motion to quash the service on it because it did no business and had no agent in Washington. For a proper understanding of this case, a brief delineation of its historical background is necessary.

Early in 1942, the Congress adopted legislation providing pensions for government employees, including members of Congress. Shortly thereafter the Secretary of the Spokane Chamber of Commerce conceived the idea that the repeal of that portion of the legislation referring to Senators and Congressmen might be effected through a technique of ridicule. In his search for an organization to sponsor such a movement, he determined that the Spokane Athletic Round Table was admirably fitted for that purpose. The Spokane Athletic Round Table has existed for a number of years. It has maintained club rooms and, prior to this occasion, had limited its public activities to the support of athletics and the sponsorship of many spectacular activities which, because they involved clever and wholesome humor, had received much popular approbation. Joseph A. Albi was president of the Round Table. Whether it was he or someone else within the organization who possessed the penchant for publicity, someone had always successfully piloted the organization through its very successful campaigns. The Chamber of Commerce Secretary presented to Mr. Albi the proposition that the repeal of the Congressional Pensions Act could be secured by the launching of a drive for "Bundles for Congress." During the year prior thereto, the very serious "Bundles for Britain" campaign had been carried out throughout the United States. Mr. Albi and the Board of the Athletic Round Table quickly accepted the idea. Appreciating the need for publicity, they first contacted the publisher of the Spokane Spokesman-Review, a morning newspaper of wide circulation. As a result of that contact, the plaintiff, political reporter and sometime editorial writer for the paper, was assigned the task of developing publicity for the campaign. The history of the campaign and its success is too well known to require recital here. The evidence is undisputed that plaintiff took an active part in the campaign in so far as the newspaper publicity was concerned. A short time thereafter Congress capitulated and repealed the legislation. A number of months later Pic Magazine caused to have printed the article upon which this action is based. The December 22, 1942, issue refers to the article in the Index as "America Last." It is a two-page spread with pictures of Mr. Albi and the plaintiff at the top, also a picture of what Albi described as a "Coochie Bird," which consisted of a pine cone with a bird's head on it assembled on a stand, addressed to one of the members of the United States Senate, plus a picture of Thomas Masuda and his wife with a legend under it— "Thomas Masuda (above) and his wife look over an exhibit used in the Government's case against Masuda, acquitted of being an unregistered Japanese agent." Under the Coochie Bird is the legend: "`Bundles for Congress,' an attempt to smear Congress, was organized by Joseph Albi and Ashley Holden." Under Albi's picture, the legend "Joseph Albi, Unamerican citizen, was one time an honorary member of the Italian consulate in Spokane, recently failed to gain Congressional nomination." Under plaintiff's picture is the legend: "Ashley Holden, a pal of the Japanese, acted as liaison between Jap and U. S. business interests, attempted to convince them of Jap goodness." The title of the article in bold face type "They Plotted `Bundles for Congress.'" The body of the article appears in the footnote.¹

In plaintiff's amended complaint, he alleged the particulars in which he asserted the article was untrue, libelous and defamatory. There was no allegation of special damages, but it was alleged generally that plaintiff had been damaged in the amount of $250,000. The jury returned a verdict of $15,000.

The defendants admitted publication of the article and set up certain affirmative defenses, the details of which will be discussed later. The chief of these were: (1) The truth of the article, (2) That the article was privileged and, having been published without malice upon their part, plaintiff was not entitled to recover from them, (3) That they were simply the distributors of the Magazine and had no knowledge of its contents. The main issue in the case was the defense of truthfulness. Since, on this motion, I must consider the evidence most favorable to the plaintiff, I will review his own testimony as to his relationship with the Japanese.

Shortly after the last war, in which plaintiff served, he took a short journalism and advertising course at the University of Washington. Upon finishing that course, he was employed to cover the water front for the Seattle Daily Journal of Commerce. That paper is a purely commercial publication, maintained to supply the business interests of Seattle and the members of the bar with information concerning court records, reports of City and County business, the time of arrival and departure of ships and any other information of interest to Seattle business. It is a remarkably reliable publication and does a fine job of factual reporting of business information concerning the City and the Port of Seattle. Plaintiff worked on that paper for three years. In so doing, he contacted many Japanese ships which entered the harbor. He became acquainted with local representatives of Japanese shipping concerns and became imbued with the belief that the future of the Puget Sound area depended upon the development of Oriental trade and the maintenance of friendly trade relations with Japan. In about 1923, he left the paper and became public relations man with the Pacific Coast Coal Company. The Pacific Coast Coal Company has a variety of interests among which is selling coal. To a greater extent than other lines, the Japanese lines used coal in the operation of their ships. As a part of his duties, plaintiff became the representative of the coal company whose business it was to entertain the visiting officers on the Japanese freighters and liners. He had an expense account for that purpose. He entertained them at golf and other social activities. He became acquainted with the Japanese Consuls and Vice-Consuls in Seattle and went to parties at which prominent Japanese were entertained. About 1923, the idea was conceived in Seattle of forming a Japan Society. The evidence does not disclose who was the originator of it. Its first meeting was held at the Seattle Rainier Club under the sponsorship of Corwin S. Shank, a prominent Seattle attorney whose interest in Japan probably had its inception because of his activities in the Baptist Church. Many prominent Seattle business men sensed in the movement an opportunity for the furtherance of trade relations with Japan and the improvement of their own business opportunities and they not only joined but took an active part in the Society. The Seattle Chamber of Commerce nurtured it. Its roster contained the names of many of Seattle's most important business men. There can be no doubt that in these activities these men were actuated by entirely proper business motives and were blissfully ignorant of the political implications or the international aspects which motivated the local Japanese in their cordial cooperation in furthering the aims of the Society. Plaintiff became the unpaid secretary of that organization. He remained as unpaid secretary until about 1928 when he became the paid secretary having severed his connection with the Pacific Coast Coal Company. At about that time, he organized a personal advertising agency. It never flourished but he did succeed in obtaining the accounts of a few of the Japanese concerns having local offices in Seattle. In 1930, plaintiff collaborated with a man by the name of Charles E. Martin in the publishing of a book entitled "Japan, an Interpretation," which was obviously pro Japanese propaganda which plaintiff testified was written with the hope that it might be accepted as a textbook at the University of Washington. He testified that it was customary for him to receive at Christmas of each year gifts of a value of about $50 from the Seattle Japanese Consul. These gifts continued up until Christmas of 1940. On one occasion, plaintiff went to Victoria, B. C., where, along with a group of American newspapermen, he interviewed the incoming delegation of Japanese representatives to the London Naval Conference. He was not connected with any newspaper or publication at the time. He had a Japanese girl as his secretary. In May, 1931, at the expense of the Japan Society of Seattle, he went with a group of young men to Japan. He visited the various cities of Japan; took courses in Japanese schools on two occasions; he visited with several prominent personages connected with the Japanese Government; he went on into Manchuria and spent sometime there...