Kellems v. CALIFORNIA CONGRESS OF IND. ORGAN. COUNCIL, 23775

• Decision Date: 09 October 1946
• Docket Number: 23948.,No. 23775,23775
• Citation: 68 F. Supp. 277
• Court: U.S. District Court — Northern District of California
• Parties: KELLEMS v. CALIFORNIA CONGRESS OF INDUSTRIAL ORGANIZATION COUNCIL et al. (two cases).

68 F. Supp. 277

KELLEMS v. CALIFORNIA CONGRESS OF INDUSTRIAL ORGANIZATION COUNCIL et al. (two cases).

Nos. 23775, 23948.

District Court, N. D. California, S. D.

October 9, 1946.

Herbert W. Clark, and Morrison, Hohfeld, Foerster, Shuman & Clark, all of San Francisco, Calif., for plaintiff.

Gladstein, Anderson, Resner Sawyer & Edises, of San Francisco, Calif., for defendants.

GOODMAN, District Judge.

In action No. 23775, plaintiff seeks $250,000 general damages and $250,000 exemplary damages on the ground that an article published by defendants on April 14, 1944, in the newspaper "Labor Herald" libeled and defamed her in that it was therein falsely stated that she was engaged in "treasonable operations."

In action No. 23948, consolidated for trial with No. 23775, plaintiff in count one thereof seeks $250,000 general damages and $250,000 exemplary damages respecting a news article published in the same newspaper on October 13, 1944, and in count 2 like sums respecting an editorial published in the same newspaper the same day in both of which it is alleged were included false and defamatory statements to the effect that plaintiff was engaged in "treasonable operations."

To both complaints defendants replied by answer and amended answer, the filing of which is hereby allowed, wherein the material allegations thereof were specifically denied and wherein it was specially pleaded that the statements complained of were true,¹ that the defendants were qualifiedly privileged to make such statements and that such statements constituted fair comment and were not malicious.

The causes are of Federal cognizance, because of diversity of citizenship, 28 U. S.C.A. § 41.

Both causes have been submitted to the court, a jury having been waived, after trial, for decision on the merits.

The "operations" characterized as "treasonable" in both issues of the "Labor Herald" were specifically stated to be: (a) Plaintiff's "correspondence with a leading Nazi operative (one Count Zedlitz) in Argentina" and (b) a speech of plaintiff in Kansas City in June 1944 wherein she stated "she was not paying her December installment of Federal income tax and invited business men generally to follow her example."

On the witness stand plaintiff admitted the making of the speech and others to the same effect. Likewise she admitted corresponding with Count Zedlitz, a German national, who represented in Argentina a large German metal concern, during the war, knowing him to have been placed on the United States "proclaimed list" (Pres. Proclamation No. 2497, July 17, 1941), and further that she corresponded with said Zedlitz at least once in violation of the Trading with the Enemy Act, § 3, 50 U.S.C.A.Appendix, § 3.

It is admitted that prior to the publication of both articles, the same activities of plaintiff had been widely publicized and similarly characterized, in the public press, over the radio and in sessions of the Congress. It is further admitted that the same activities of plaintiff were publicly described by the then Secretary of the Treasury in vain similar to the "Labor Herald" publications.

It is contended by plaintiff that the word "treasonable" is per se defamatory and its use has not been justified by defendants inasmuch as they have not proved by a preponderance of the evidence that plaintiff committed the crime of treason as statutorily defined. 18 U.S.C.A. § 1.

Neither the authorities nor the vista provided by all of the evidence convince me at all that defendants must sustain such a burden in defense. Nor do I believe that the cause can justly be decided within such a narrow compass.

I do not pass upon the defense of qualified privilege inasmuch as I...