Insull v. New York, World-Telegram Corporation
| Decision Date | 30 December 1959 |
| Docket Number | No. 12681.,12681. |
| Citation | 273 F.2d 166 |
| Parties | Samuel INSULL, Plaintiff-appellant, v. NEW YORK, WORLD-TELEGRAM CORPORATION, a New York corporation, et al., Defendants-appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Floyd E. Thompson, Kenneth J. Burns, Jr., Chicago, Ill., Keith F. Bode, Chicago, Ill., Thompson, Raymond, Mayer, Jenner & Bloomstein, Chicago, Ill., of counsel, for appellant.
Howard Ellis, Don H. Reuben, James E. Beaver, Keith Masters, Chicago, Ill., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel, for appellee.
Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
Samuel Insull, herein called plaintiff, a citizen and resident of Illinois, brought an action for libel in an Illinois state court against the corporate owners and publishers of publications described as Scripps-Howard daily newspapers, and the individual editors thereof.1 No defendant is a citizen or resident of Illinois. Charles T. Lucey, the author of the libelous article appearing in the Scripps-Howard newspapers published by the corporate defendants, is a defendant.
Summons was served outside the state of Illinois on each defendant, together with a copy of the complaint, in accordance with § 16, ch. 110, R.S.Ill.1957.
Defendants procured the removal of the case to the district court and then moved to dismiss the cause on the ground that the court "lacks jurisdiction over the persons" of defendants. The court granted the motion, 172 F.Supp. 615, and from an order to that effect, plaintiff appeals.
In the United States District Court for the Western District of Tennessee, since the filing of the case at bar, plaintiff sued Memphis Publishing Company and the complaint and answer therein raised the same issues as were raised in this case. Upon a trial, a jury found the issues in favor of defendant, and judgment for defendant was entered, which judgment has become final.
We believe defendants mistakenly urge that this judgment is res judicata as to all the defendants here. The charge of libel against Memphis Publishing Company in the Tennessee suit is entirely distinct from the charge of libel by publication by the other defendants named in the complaint herein. Identity of causes of action is essential to a plea of res judicata. Troxell v. Delaware, L. & W. Ry. Co., 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586; Holland v. Forcum-James C. & L. Co., 154 Tenn. 174, 285 S.W. 569; Sweeting v. Campbell, 2 Ill.2d 491, 496-497, 119 N.E.2d 237.
Nor can defendants' motion be sustained on the doctrine of estoppel by finding or verdict. A former judgment does not operate as an estoppel by verdict in a second action except where it is clear from the record that a specific material and controlling fact common to both cases was litigated and determined in the first case. Chicago Theological Seminary v. People, 189 Ill. 439, 443-444, 59 N.E. 977; People ex rel. v. Wyanet Elec. Light Co., 306 Ill. 377, 383, 137 N.E. 834; Hoffman v. Hoffman, 330 Ill. 413, 418, 161 N.E. 723; Prudential Ins. Co. of America v. Zorger, 7 Cir., 86 F.2d 446, 108 A.L.R. 498; Harris v. Mason, 120 Tenn. 668, 115 S.W. 1146, 25 L.R.A., N.S., 1011. The rule is well stated in the Wyanet Electric Light Co. case, where the court said 306 Ill. at page 383, 137 N.E. at page 836:
"It is absolutely necessary, in order that a former judgment should operate as an estopped sic by verdict, that there shall have been a finding of a specific fact in such former judgment or record that is material and controlling in that case and also material and controlling in the pending case. It must also conclusively appear that the matter of fact was so in issue that it was necessarily determined by the court rendering the judgment interposed as a bar by reason of such estoppel. If there is any uncertainty on this point by reason of the fact that more than one distinct issue of fact is presented to the court the estoppel will not be applied, and for the reason that the court may have decided it upon one of the other issues of fact.
There is nothing properly before this court which shows what fact was found which resulted in the verdict against plaintiff in the Memphis case. Indeed, the verdict of the jury might have been based on a finding that plaintiff had not proven that he had a general reputation in the Memphis area or that he had not proven that his reputation was damaged by the Memphis publication. The jury could have concluded that the article referred to plaintiff but that their verdict should be for defendant because plaintiff did not prove he was damaged by the Memphis article.
We see no impelling reason for dismissing this appeal and the motion of defendants is denied.
If plaintiff is correct in his claim as to the meaning and application of § 17 to this case, it is undisputed that service of summons on defendants was made in compliance with § 16(1) and (2) of said Act.
The controlling facts appear in affidavits filed in the district court:
The corporate defendants are incorporated and have their principal places of business in states other than Illinois. Their respective newspapers are published in states other than Illinois. No corporate defendant is licensed to do business in Illinois or has a registered agent in Illinois or maintains an office in Illinois or is listed in any Illinois telephone or business directory. No corporate defendant employs an agent who is permanently located in Illinois or maintains assets or has a bank account in Illinois. No individual defendant personally owns or operates any business in Illinois and none resides in Illinois.
Each of the defendant companies sends a number of copies of its respective newspaper into Illinois each day. Some of these copies are mailed directly to subscribers, and others are sold to the Illinois public through a wholesale distributor and from newsstands. All payments by subscribers, wholesalers and newsstand operators are mailed to the respective principal offices of the several publishing companies outside Illinois. The distributors also circulate newspapers other than those of defendants, the several defendants have no financial interest in or control over the formers' enterprises, they are independent contractors which purchase newspapers for their own accounts, receive them by mail from outside Illinois, and do not account to defendants for the proceeds of sales. Each corporate defendant publishes a newspaper from without the state of Illinois; all defendants' printing occurs outside Illinois; each defendant first distributes its particular newspaper without Illinois and within the city of printing; distribution elsewhere than in the city of printing is always made subsequent to distribution in the city of printing; payment to the defendants for papers shipped and any orders that might be received for papers are all transmitted to defendants' principal offices for receipt and acceptance; no collections or subscription activities whatsoever are carried on by any of the corporate defendants within Illinois; the corporate defendants' newspapers are circulated in Illinois only by independent news vendors, independent wholesalers, and mailings from without the state; no circulation whatsoever is made within the state by any of the defendants. The extent of the defendants' newspapers' circulation in Illinois is summarized thus: average number of defendants' newspapers mailed daily to Illinois subscribers from without the state: New York World-Telegram and The Sun 37; Memphis Press-Scimitar 35; The Indianapolis Times 25; Cleveland Press 29; Cincinnati Post 23; El Paso Herald-Post 6; Knoxville News-Sentinel 18;
The Pittsburgh Press 29; The Albuquerque Tribune 8.
Average number of defendants' newspapers mailed daily to independent news-dealers in Illinois from without the state:
New York World-Telegram and The
Sun ........................ 2
Memphis Press-Scimitar ..... 1
The Indianapolis Times ..... 4.5
Cleveland Press ............ 4
Cincinnati Press ........... 4
El Paso Herald-Post ........ 1
Knoxville News Sentinel .... 1.3
The Pittsburgh Press ....... 8
The Albuquerque Tribune .... 1
Average number of defendants' newspapers mailed daily to an independent wholesaler in Illinois from without the state:
New York World-Telegram and The
Sun ........................ 19
None of the corporations employs or has any reporters, advertising solicitors or other persons who are located in Illinois; none of the corporations owns or maintains any assets (either realty or personalty) in Illinois; none of the corporations has a bank account in...
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