Mattox v. News Syndicate Co.

• Decision Date: 11 March 1949
• Docket Number: Docket 21204.,No. 156,156
• Citation: 176 F.2d 897
• Parties: MATTOX v. NEWS SYNDICATE CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

176 F.2d 897 (1949)

MATTOX v. NEWS SYNDICATE CO., Inc.

No. 156, Docket 21204.

United States Court of Appeals Second Circuit.

Argued February 9, 1949.

Decided March 11, 1949.

Rehearing Denied July 19, 1949.

Writ of Certiorari Denied October 24, 1949.

COPYRIGHT MATERIAL OMITTED

Townley, Updike & Carter, New York City and J. Howard Carter, New York City (James W. Rodgers, New York City, Philip T. Seymour, Merrick, N. Y., of counsel), for News Syndicate Co., Inc.

Samuel Ruderman, New York City, and Louis Fine, New York City, for Mattox.

Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

Writ of Certiorari Denied October 24, 1949. See 70 S.Ct. 100.

L. HAND, Chief Judge.

Both parties appeal from a judgment for the plaintiff in an action to recover damages for a libel. The defendant's appeal is based upon the admission of irrelevant and incompetent evidence as to damages; the plaintiff's is from an order which granted a new trial unless she consented to reduce her damages from $20,000 to $15,000, which she did. The plaintiff lives in Norfolk, Virginia; the defendant is the publisher of a newpaper having a large circulation in New York, the Sunday issue of which, on the date in question — August 11, 1946 — had a circulation in Norfolk and its environs of 32,550 copies. On that day it published an article about a murder which had taken place in Norfolk in May 1938, for which the accused had been convicted of murder in the first degree. It had been a part of the defence that a witness called at the house of the accused and the deceased, his wife, and had talked to the deceased on her porch. The accused had sworn that he had left the house before the time fixed by this witness. Four days after the verdict, the plaintiff executed an affidavit to aid the defence in a motion for a new trial. In order to support the accused's testimony that he had left his house before the witness just mentioned had talked to the deceased, the plaintiff swore that from her porch she had seen the accused leave his house and that afterwards she saw the witness talk to the deceased on the porch. The defendant's article discussed this affidavit, and said that a local detective, who was in charge of the case, had demonstrated that it was impossible from the plaintiff's porch, where she had said she stood, to see anyone on the accused's porch. It then proceeded: "he" (the detective) "later learned that the Mattox woman had once been a patient in a mental institution." These last were the words charged as the libel.

The testimony as to damages, of which the defendant complains, was of several sorts. There was, first, testimony of several witnesses that after the article appeared others had asked the witnesses whether the plaintiff had been in an insane asylum. A witness testified that he had discussed with his family whether the statement in the paper was true; that the family had taken its truth for granted. The plaintiff was allowed to testify that others had asked her about the article; and that when she walked in the street, she heard comments of acquaintances, and whispers, inquiring whether she "was the girl" who had "been away." Other witnesses testified to the plaintiff's changed appearance and carriage; that she was no longer cheerful; that she avoided society, appeared nervous, shunned "callers" and stopped attending plays and moving pictures. The plaintiff herself testified to the same things, and added that she went out of town to a "good retreat," in order to avoid people whom it was hard to convince that she had not "been away"; that she ceased going to church or any "formal gathering"; and that she felt "self-conscious and embarrassed." Witnesses, including the plaintiff, also testified that she had called in a doctor, who told her not to worry, and to forget the event so far as possible. Finally, the defendant complained of the testimony of the plaintiff and others that she had been absent from her work, there being no special damages alleged.

This being a case of diverse citizenship, we are first to inquire whether the law of New York takes, as the measure, or pattern of liabilities for torts committed elsewhere, the law of the state where the wrongful conduct occurred. We have been unable to find any cases dealing with libel; but the New York courts generally accept the doctrine as to torts that the lex loci delicti is the standard,¹ and there can be no distinction as to libel, provided the law of New York recognizes Virginia as the place where the wrong occurred. On that question there are no New York decisions, so far as we can find, and elsewhere there has been no authoritative answer, although there has been some discussion, especially in a "Note" in 60 Harvard Law Review 941. The Restatement of Conflicts² lays it down that the place of the wrong is "the place of communication," and that is obviously true, but it does not tell what law should govern when the libel is "communicated" in several jurisdictions. Even though we group all copies of a single issue published in one state as a single tort, as we must, it is possible to view the publication in one state as a wholly separate tort from that in any other, and that has at least the merits of simplicity in theory.³ The difficulty is that in application it would prove unmanageable.

We assume that in any event a plaintiff must recover in one action all his damages for all the publications, wherever made; but, if the publication in each state is a separate wrong, the extent of the liability may vary in the separate jurisdictions: for instance, in the case at bar the law of New York may differ from that of Virginia. It would certainly be an unworkable procedure to tell a jury that they should award damages, so far as they were suffered in State X, according to one measure, and, so far as they were suffered in State Y, according to another. Judge Wyzanski discussed the question in Kelly v. Loew's, Inc.,⁴ but did not decide it, because he found the answer in the established law of Massachusetts; and we, too, need not answer it in the case at bar, though for another reason. On the record the plaintiff was not a person of prominence, and it does not appear that she was known outside Virginia; in any event there is no suggestion that she was known in New York. Since it does not appear that she suffered any damages in that or in any other state, it was not an error for the judge to rule upon the evidence upon the assumption that the only damages were suffered in Virginia; and it is of course irrelevant that in so ruling he was not consciously following our foregoing reasoning.

Coming, therefore, to the law of Virginia, although we have found no decisions that it is there libellous per se to say that a person is insane or of instable mind, that is the general law,⁵ as it probably is also the law of New York,⁶ and in the absence of evidence to the contrary we are to suppose that the same is true in Virginia. In considering what evidence was admissible in proof of damages we must distinguish between relevancy and competency. The testimony was relevant, so far as it was rationally probative of those consequences of the publication, for which the law of Virginia holds a publisher liable. Liability means that obligation to redress the person wronged, which is imposed upon the wrongdoer because of his commission of the wrongful act; and the extent of the damages is therefore the measure of the liability.⁷ On the other hand, whether evidence, rationally probative of those consequences, is incompetent — that is, whether it is the sort of evidence which the court of the forum will refuse to accept upon any issue — is determined by Rule 43(a), Federal Rules of Civil Procedure, 28 U.S. C.A. It will be admitted, if it is admissible under the practice of the state where the case is being tried, or under the practice of federal courts of equity: for the Rules "have attempted to liberalize admissibility of evidence as much as possible by providing always for the widest rule of admissibility."⁸

So far as we know, it is universally agreed that the damages recoverable in libel are the plaintiff's loss of reputation in the minds of those who know him or know about him, together with this mental suffering as a result of the libel. How this has been interpreted in Virginia in specific cases appears from some decisions of its Supreme Court. In Snyder v. Fatherly,⁹ the following charge was approved: "You shall take into consideration * * * the probable effect upon those to whose attention they" — the charges — "came, and the probable effect upon the plaintiff's personal feelings and her standing in the community." This was only the common rubric, but the court in its opinion added that there was "plenty of evidence * * * showing the injury to the plaintiff's feelings * * * reflected by the ignominy in which her former associates held her on account of the defamation" 163 S.E. page 364. In Kroger Grocery & Baking Co. v. Rosenbaum,¹⁰ in supporting the verdict as not excessive, the court apparently took into consideration testimony that "it was the general impression in the town of Marion that plaintiff was discharged by defendant for misappropriating money." In News Leader Co. v. Kocen,¹¹ the court reversed a judgment for the plaintiff because of an erroneous charge; but also indicated that the size of the verdict was a contributing factor. In considering the second question, it recited the plaintiff's testimony as to her sufferings, in that she had been "mortified by people telephoning her" and by the libel's being mentioned to her children. Also that she became hysterical, sleepless, had headaches, bothered her husband, and declined to go to parties. The majority opinion said as to this testimony: "While the weight to be given this evidence was peculiarly a question for the jury, nevertheless it creates a strong suspicion" that the plaintiff was shamming. In these decisions the...