Mladinich v. Kohn

• Decision Date: 01 June 1964
• Docket Number: No. 42933,42933
• Citation: 250 Miss. 138,164 So.2d 785
• Parties: Jake MLADINICH et al. v. Aaron M. KOHN.
• Court: Mississippi Supreme Court

Page 785

164 So.2d 785

250 Miss. 138

Jake MLADINICH et al. v. Aaron M. KOHN.

No. 42933.

Supreme Court of Mississippi.

June 1, 1964.

Morse & Morse, Gulfport, for appellant.

Mize, Thompson & Mize, Gulfport, M. Hepburn Many, New Orleans, La., Guste, Barnett & Little, New Orleans, La., for appellee.

ETHRIDGE, Justice.

This case involves two questions: (1) whether a nonresident individual, charged in a tort action with slander, is amenable to the process and jurisdiction of a Mississippi court for such slander occurring in a single speech made here by the nonresident; and (2) if not, whether his special appearance in the Mississippi court by motion to dismiss for want of jurisdiction constituted a general appearance, and a waiver of lack of jurisdiction. Both questions are answered in the negative. The judgment of the trial court, dismissing the action, is affirmed.

I.

This appeal originated as three separate actions filed in the Circuit Court of Harrison County, Mississippi, by Jake, Andrew Jake, and John Mladinich. They are resident citizens of Harrison County, Mississippi. The defendant in each action is Aaron M. Kohn, who is manager and director of the Metropolitan Crime Commission of New Orleans, Inc. (called Crime Commission), and a resident citizen of New Orleans, Louisiana. The circuit court dismissed the suits for want of jurisdiction, and consolidated them for purposes of this appeal. The facts are similar, and generally this opinion will refer to them in the singular. The Crime Commission is a civic organization incorporated under the laws of Louisiana, for the purpose of dealing with community problems of organized crime, and the improvement of law enforcement and administration of justice. Its activities are devoted to the problems of the three Louisiana parishes which constitute the core of the metropolitan area of New Orleans.

The declaration made the following allegations: Kohn was engaged in the business of traveling from place to place within and without the states of Louisiana and Mississippi and lecturing on underworld government. In delivering such lectures Kohn 'is engaged in slandering business men in the localities he lectures,' charging them without cause with being linked with the underworld and 'with Carlos Marcello, a notorious underworld character in Jefferson Parish, Louisiana.' Such actions by Kohn 'constituted doing business and performing services or work in the State of Mississippi,' and by such activities he appointed the Secretary of State of Mississippi as his agent for the service of process. Kohn was 'engaged by the Brotherhood of Gulf Coast Baptist Association to lecture on underworld government' in a Baptist church in Biloxi. A copy of the program for this meeting was attached as an exhibit. It contained a short biographical sketch of Kohn. He was formerly an agent of the F.B.I. and was associated with a somewhat similar commission in Chicago.

On the night of August 21, 1962 Kohn appeared before a large congregation assembled to hear his speech. He charged falsely, maliciously, and with the intent to injure plaintiff in his personal, social and business relations, that the plaintiff, Jake Mladinich, along with his sons, the other two plaintiffs, operated the Cabana Beach Motel on U. S. Highway 90, west of Biloxi, Mississippi, 'for the racketeer Carlos Marcello.' This statement was false and defendant knew it was. Two of the plaintiffs were present, and publicly disputed its truthfulness. Kohn said he had records linking Marcello with operation of the motel and other related businesses. Plaintiffs called on him to produce them, but he refused, asserting that 'the Mladiniches are members of the underworld government.'

Marcello has been charged by various governmental agencies with being an 'underworld racketeer.' Defendant, without any cause and for the sole purpose of maliciously destroying plaintiff's credit, reputation and character, falsely and purposely made these statements, giving similar statements to a reporter for a Gulfport-Biloxi newspaper. A copy of the newspaper story was attached as an exhibit. It referred to the speech, asserting that Kohn had been 'haunting racketeers in the New Orleans area' since he became director of the Crime Commission. Kohn also referred to other individuals in his speech, the approval of crime by many people, the fact that graft and the underworld are threats to the American way of life, a recommendation that citizens put more pressure on public officials to fight the underworld, family and social ties in the underworld, failure to enforce laws which would halt vice, and 'there is not a thing I could say about New Orleans that wouldn't apply to the composite communities of the Gulf Coast.'

The motel and its allied businesses enjoyed a good reputation for food and shelter before the statements by defendant. They were false and were made maliciously for the purpose of destroying plaintiff's reputation and business. They were given wide publicity by newspapers, television and radio stations from New Orleans, Jackson, and Gulfport-Biloxi. For such untrue and slanderous statements, plaintiff asked damages of $10,000.

This action was based upon the provisions of Mississippi's 'long arm' jurisdictional statute. Miss.Code 1942, Rec., Secs. 1437-1440; Miss.Laws 1940, ch. 246. Civil actions for the recovery of damages brought against a nonresident of the state may be commenced in the county in which the action accrued. Section 1437 then states:

'Any non-resident, person, firm, partnership, general or limited, or any corporation not qualified under the constitution and laws of this state as to doing business herein, who shall do any business or perform any character of work or service in this state, shall, by the doing of such business or the performing of such work or services, be deemed to have appointed the secretary of state, or his successor, or successors in office, to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action, accrued or accruing from the doing of such business or the performing of such work or service, or as an incident thereto by any such non- resident, or his, their or its agent, servant or employee. The doing of such business or the engaging in any such work or service in this state shall be deemed a signification of such non-resident's agreement, and equivalent to an appointment by, such non-resident of the secretary of state of the state of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such non-resident upon whom may be served all lawful process in any action or proceeding against any such non-resident for any cause of action which has accrued or may accrue in this state.'

Section 1438 provides that service of two copies of process shall be upon the secretary of state, who shall mail one to defendant. The clerk of the court in which the suit is filed must send to defendant a copy of the declaration by registered mail, with return receipt. These things were done.

Reverend O. B. Anderson and Lee Burns filed a petition for authority to file a motion to dismiss, amicus curiae. They desired to appear as amicus curiae in order to challenge jurisdiction of the court. The attached motion to dismiss was based on an averment that the court had no jurisdiction of the person of defendant. The affidavit stated that one of them had heard Kohn speak at a church in Gulfport on June 19, 1962, so they invited him to appear before the Brotherhood of the Gulf Coast Baptist Association on August 21, 1962; that Kohn is a resident citizen of Louisiana, was not engaged in any business in Mississippi on the occasion of his speech, and was not paid for it; and that the two speeches made by him were the only ones which he had made in Mississippi. The circuit court denied this petition 'because petitioners in fact appear on behalf of defendant.' Plaintiff's motion for judgment by default was overruled.

Kohn then appeared specially and only for the purpose of filing a motion to dismiss the cause for want of jurisdiction. He averred that the court had no jurisdiction of him, since he was not doing business in Mississippi and could only be sued in the place of his residence. Attached to this motion was an affidavit by Kohn, to the effect that he was not engaged in any business here.

There was a hearing on the motion to dismiss. Kohn testified that he was a resident citizen of New Orleans, Louisiana, and described his work with the Crime Commission. The only two talks he ever made in Mississippi were on August 21, 1962, the basis of the suit, and on June 19, 1962, both before Baptist organizations. He received no personal remuneration for making either of them, and no expenses. 'Quite a few years ago' he made a talk in Jackson, Mississippi with reference to organizing a crime commission. He does no kind of business in this state. In the nine years he had been with the Crime Commission, he made perhaps a dozen speeches outside of Louisiana. He was invited to talk to the Baptist Brotherhood by Rev. Anderson, and did that as a civic duty and as an individual. His work with the Crime Commission is confined to the three parishes of the metropolitan New Orleans area. His speech was not a prepared address. His talk at the Baptist church in June 1962 in Gulfport was on the general importance of citizen participation in combatting crime and raising the standards of law enforcement. His major activities are investigating, research, and directing the staff of the Crime Commission. He has testified on numerous occasions before grand juries, congressional committees, and other official investigating bodies. The directors of the Crime Commission did not know he was to make a speech in Biloxi.

The circuit court entered a judgment sustaining defendant's motion to dismiss for want of jurisdiction. Plaintiff then filed a motion to...