New York Evening Post Co. v. Chaloner

• Decision Date: 18 February 1920
• Docket Number: 120.
• Parties: NEW YORK EVENING POST CO. v. CHALONER.
• Court: U.S. Court of Appeals — Second Circuit

265 F. 204

NEW YORK EVENING POST CO. v. CHALONER.

No. 120.

United States Court of Appeals, Second Circuit.

February 18, 1920

[Copyrighted Material Omitted]

This cause comes here on writ of error to the United States District Court for the Southern District of New York.

The plaintiff in error, defendant below, is hereinafter referred to as defendant. The defendant in error, plaintiff below, is hereinafter referred to as plaintiff.

The action is brought by plaintiff in his character as a citizen of the state of North Carolina against defendant, a citizen of the state of New York; the latter being a corporation organized under the laws of the latter state.

The defendant is the owner, proprietor, and publisher of a newspaper called the Evening Post, which is published in the city of New York and circulated throughout the United States.

The complaint alleges that the plaintiff is a well-known and highly respected citizen of the United States, is one of the leading art patrons therein, is a member of one of the leading families of the United States, and is of high social standing.

It is alleged, too, that in March, 1909, at the plaintiff's place in Virginia, while plaintiff was endeavoring to prevent one Gillard from assaulting and injuring his (Gillard's) wife, Gillard was accidentally shot and killed; that the matter was made the subject of inquiry in said state, and that after a proper hearing the jury found and determined that Gillard came to his death by the accidental discharge of a revolver in the hands of Gillard and the plaintiff while the latter was endeavoring to prevent the former from attempting to kill his wife.

It is also alleged:

That defendant well knowing the facts aforesaid and contriving and wickedly and maliciously intending to injure this plaintiff in his good name, fame, and credit and to bring him into public scandal, infamy, and disgrace with and amongst his neighbors, friends, and associates, and other good and worthy citizens, and to cause it to be suspected and believed by them that this plaintiff had been and was guilty of the offense and criminal act hereinafter mentioned, made and charged upon him by said defendant, and to vex, harass, and oppress him, did on said date falsely, wickedly, and maliciously publish and procure to be published in said county of New York in its said newspaper called the Evening Post, the following article of and concerning this plaintiff:

'The latest prominent assassin had the rare foresight to have himself declared insane before he shot his man.'

That said article is a false, scandalous, and defamatory libel and was published by said defendant concerning this plaintiff, as was well known to said defendant. That no extrinsic facts for the purpose of showing the application to this plaintiff of said defamatory matter are necessary, but such application had been publicly recognized, as appears from an article in Harper's Weekly, a well-known paper, published in the city of New York, in its edition of March 27, 1909, of which article the following is a copy:

'Uncivil.

Damages in the sum of $100,000 were asked.

The defendant entered a demurrer and put in a plea in abatement in which it alleged a want of jurisdiction in the District Court in that plaintiff was without legal capacity to sue and was not the proper party to sue, having been adjudged of unsound mind by the Supreme Court of the State of New York which had appointed a committee of his person and estate. The demurrer and the plea in abatement were overruled.

The defendant then put in an answer in which it set up several distinct defenses on the merits. It also filed a petition in which it asked that the committee of the plaintiff be authorized to prosecute the action for the plaintiff or be substituted as plaintiff in the action. This was denied.

The jury found a verdict in favor of plaintiff in the amount of $30,000. The court thought the verdict was excessive in view of the fact that plaintiff had not been mentioned by name, and as the shooting affair was referred to in a small squib which was not marked by head lines. The court declared he would set the verdict aside unless the plaintiff stipulated within five days to reduce it to $17,500. The defendant consented to this reduction of the verdict, and judgment was entered accordingly.

"The latest prominent assassin had the rare foresight to have himself declared insane before he shot his man."'-- New York Evening Post.

'When a man has been promptly found by his neighbors to have shot in self-defense, it is hardly polite to call him an assassin, even though his name is not given. It is all the less polite when he intervened to protect a threatened woman.'

Wherry & Mygatt, of New York City (William M. Wherry, Jr., Frederic E. Mygatt, and White & Case, all of New York City, of counsel), for plaintiff in error.

Kaplan, Kosman, Streusand & Ware and George M. Curtis, Jr., all of New York City (Samuel Seabury, of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

This is in some respects a remarkable and perplexing case. The action was commenced in May, 1909, but it was not until May, 1919, that it was actually brought to trial before Judge Augustus Hand. The trial occupied six days, the defendant at the close of the plaintiff's case declining to put in any evidence.

In June, 1909, defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and upon the further ground that plaintiff did not have legal capacity to sue in that he had been adjudged an incompetent by the Supreme Court of New York. The demurrer was heard before Judge Coxe on February 11, 1910, and his order overruling the demurrer and requiring defendant to answer within 20 days was filed on March 3, 1910. Thereupon defendant answered denying, among other things, that the shooting referred to in the complaint was accidental, and setting forth three defenses. The answer again raised the question as to plaintiff's competency by a plea in bar of procedure, alleging that plaintiff did not have legal capacity to sue. The New York Code permitted that plea to be made either by demurrer, if the facts appeared on the face of the complaint, or by answer. the facts appeared on the face of the complaint and were also set up in the answer. Thereafter defendant moved before Judge Learned Hand in October, 1917, for an order authorizing the committee of the plaintiff, which had been appointed in the state of New York, to conduct the action for the plaintiff and to be substituted for or joined as plaintiff therein, and the motion was denied. Judge Hand said:

'If the incapacity appeared on the face of the complaint, then the judgment on the demurrer was wrong, but I cannot reverse it; correction of that error must await an appeal from the final judgment. If the judgment on the demurrer was right, the incapacity did not appear on the face of the complaint, and if not pleaded by answer was waived for all time. Section 499, New York Code.'

The incapacity did appear on the face of the complaint, and the answer did raise the issue.

In March, 1919, a motion was made before Judge Mayer for a separate trial of the issue as to the plaintiff's capacity to sue, and a separate trial of that issue was ordered. The trial of that took place before Judge Dietrich, a jury trial having been expressly waived, and on April 28, 1919, he overruled the plea of incapacity and in his opinion said that--

'The precise question has apparently not been passed upon in any of the preliminary proceedings in the case or any related proceedings.'

In disposing of the plea as to the incapacity to sue, which was very fully argued before him, the learned District Judge was evidently of the opinion that he was controlled by the opinion previously rendered by Judge Coxe, and as to which Judge Learned Hand had as we have seen disapproved. In the argument before him Judge Dietrich said:

'Gentlemen, while I do it with a great deal of misgiving, in fact I think my own impression is against the view, I think so far as this motion is concerned that I shall follow the ruling of Judge Coxe to the demurrer. I doubt the propriety of coming here and taking a different view upon a question like this in which the facts are precisely the same upon which Judge Coxe ruled.'

When the case finally came on for trial, counsel for defendant stated that he was in court pursuant to the order of Judge Dietrich to try the case on the merits and that he desired to have it entered on the record that he took exception to that order and direction and did not waive his rights to object to the jurisdiction of the court on the ground that plaintiff by reason of his incapacity to sue had no power to confer on the court jurisdiction to try the suit on the merits.

It appears that on June 23, 1899, an order was entered in the Supreme Court of the state of New York, held in and for the county of New York, by which it was adjudged that the plaintiff was a person of unsound mind and incapable of managing his person and property, and a committee of his person and estate was appointed. That order was in full force and effect at the time the present action was commenced and during all the proceedings in the court below.

It appears, however, that in September, 1901, the plaintiff being at the time a resident of the state of Virginia, a proceeding was instituted in the court for the county of Albermarle in that state by one Randolph praying for an investigation into the plaintiff's sanity. It was found and determined in that proceeding that the plaintiff was sane and capable of...