Reitmeister v. Reitmeister

• Decision Date: 23 June 1947
• Docket Number: No. 242,Docket 20558.,242
• Parties: REITMEISTER v. REITMEISTER et al.
• Court: U.S. Court of Appeals — Second Circuit

162 F.2d 691 (1947)

REITMEISTER v. REITMEISTER et al.

No. 242, Docket 20558.

Circuit Court of Appeals, Second Circuit.

June 23, 1947.

Samuel M. Ostroff and Isaac M. Rothenberg, both of New York City, for appellant.

James F. Ryan, of Brooklyn, N. Y., for Louis Aaron Reitmeister, Frank Hopp and Cecelia Phillips.

Benjamin H. Siff, of New York City, for Samuel Nachby and Pearl and Julius Lippman.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment, dismissing his complaint in an action to recover damages for the violation of the Communications Act of 1934.¹ The complaint was in three counts, of which the judge dismissed the second and third at the conclusion of the plaintiff's evidence, but submitted the first to a jury which brought in a verdict for the defendant. The first count was against the defendant, Louis Reitmeister, alone, for "intercepting" and "publishing" a telephone talk between the plaintiff and the defendant, Phillips, and another talk between the plaintiff and the defendant, Hopp. The second count was for a conspiracy of Reitmeister, Hopp and Phillips, to "goad" the plaintiff into telephone talks with Hopp and Phillips, which they would thereafter "publish"; and the third count was against all the defendants for publicly divulging the two talks in the Surrogate's Court for Queens County, New York. The plaintiff argues that as to the first count the judge erred in submitting to the jury the issue of his consent to the "publishing" of the two talks; that he also erred in his rulings as to the admission and exclusion of evidence; and that he was throughout unfair. As to the second count he argues that there was evidence to connect Phillips and Hopp with the "intercepting" and "publishing" of the talks. As to the third count he argues that the "publishing" was not privileged, as the judge held.

The evidence was in substance as follows. The Reitmeister brothers, Adolph and Louis, had been engaged in business together, but had quarreled and separated; and thereafter had been upon extremely bad terms. The plaintiff's wife had died a very short time before the events here in question, and the plaintiff professed to believe that Louis had been the cause of her death; but before, as well as after, his wife's death, he had been in the habit of calling up Louis on the telephone, threatening his life and assailing him in indecent and intemperate language. He would at times get a telephonic connection with the defendant, Phillips, an employee in Louis' office, and be equally offensive. Finally, in the latter part of March, 1941, Louis became so fearful of his brother that he employed a retired policeman, the defendant Hopp, to serve as a bodyguard in constant attendance. The plaintiff engaged Hopp also upon the telephone in the same vein; and at one time — before April 18th, the date of the first of the two talks which are the basis of this action — Hopp suggested to him that "if somebody listened to these filthy conversations of yours and takes a record of them and brings them into court, then you will have something to think about." To this Hopp swore that the plaintiff replied: "The hell, use the record, do what you want. I want the world to know about it." This was the testimony as to the plaintiff's consent to the use of the records on which Louis relied, and which the judge submitted to the jury as a defence.

Some days before April 18th Louis bought a recording machine which would automatically take down what came out of a telephone receiver. He had an extension in his own separate office leading from the main wire, and to the receiver at this extension he could attach the recording machine; his purpose was to get records of the vituperation and threats which almost daily passed to him or his employees from the plaintiff. The first talk which he so recorded was with Phillips, who told Louis that the plaintiff was on the wire, but who swore that Louis had never told her of the recording instrument. The second talk was on April 24th with Hopp. Louis had told Hopp even before the 18th that he was about to buy a recording machine, and, although Hopp's testimony on cross-examination was somewhat obscure, from it a jury might have found that he knew, when the plaintiff spoke to him on the 24th, that Louis might be recording the talk.

After obtaining the records Louis played them both to Phillips and Hopp and to his lawyer, Friedman; and he had copies made which he lodged with a cousin named Crohn, whom he told to keep them secret. Over a year later, in June, 1942, both records were played in the Surrogate's Court of Queens County, and it is this "publishing" which is the plaintiff's chief grievance. It came about as follows. The plaintiff's wife had made her sister, the defendant Pearl Lippman, executrix of her will, which greatly outraged the plaintiff, who challenged the executrix's account. When the case came on before the Surrogate, the plaintiff took the stand and upon his cross-examination, Pearl Lippman's attorney, the defendant Nachby, asked him whether he had not had the talks with Phillips and Hopp here in question; and upon his denial Nachby offered the records in evidence to establish the falsity of his denials. The Surrogate admitted them and they were read aloud in the court room. Pearl Lippman was a sister-in-law of Louis, and before the trial in Surrogate's Court came on, Louis had told her of the existence of the records and had given them to Nachby so that they might be used at the trial. It does not appear that either Phillips or Hopp had any part in this "publishing," but it may be assumed that the defendant, Julius Lippman, the husband of Pearl, shared in it with Louis, Nachby and Pearl. The judge dismissed the second count because he thought that neither Phillips nor Hopp had been privy or confederate to the production of the records, or to any later "publishing." He dismissed the third count because he held that the "publishing" of the records at the trial in the Surrogate's Court was privileged. He charged the jury as to the first count that Louis had "intercepted" the talks and would be liable, unless they found that the plaintiff by what he had said to Hopp had consented to the "publishing."

The first questions are whether the Communications Act of 1934, 47 U.S. C.A. § 151 et seq., imposes a civil, as well as a criminal, liability upon anyone who "publishes" a telephone message, and whether, if so, the District Court had jurisdiction over the action. Although the Act does not expressly create any civil liability, we can see no reason why the situation is not within the doctrine which, in the absence of contrary implications, construes a criminal statute, enacted for the protection of a specified class, as creating a civil right in members of the class, although the only express sanctions are criminal.² In Newfield v. Ryan,³ the Fifth Circuit has already implied as much as to § 605; and we too have so suggested ourselves in United States v. Goldstein.⁴ That the District Court had jurisdiction, if there was a civil right, is too plain for debate.⁵ It is true that in the case at bar the message was not interstate, and verbally the section is limited to interstate and foreign messages; but the Supreme Court has held that the section forbids the "interception" of intrastate messages if sent over interstate wires,⁶ and the civil right must be coextensive with the criminal liability. Finally, we think that, when Louis recorded the two talks as he did, he "intercepted" messages within the meaning of the section. In United States v. Polakoff,⁷ the message was taken down at the receiver's office in the same way as here, and we held that "publishing" it was unlawful. We cannot find that the question has come up again in quite the same form, but the Supreme Court gave our decision at least a limited recognition in Goldstein v. United States,⁸ and unless Goldman v. United States,⁹ has overruled it, we shall accept it as a valid interpretation of the section. We think that Goldman's case has not done so. The evidence in that case of what Shulman, the sender, had said over a telephone had been recorded upon a "detectaphone" set against a wall in an adjoining room. There was no doubt that the "detectaphone" had "intercepted" Shulman's message as he spoke it into the receiver in the same sense that an eavesdropper would, who was hidden in a closet; but the court held that the section did not apply to such a situation. The message must be "intercepted" by some mechanical interposition in the transmitting apparatus itself, for the message, though sent over the wire, is not immune from disclosure; but only the interjection of an independent receiving device between the lips of the sender and the ear of the receiver. In the case at bar, Louis recorded the talks which passed along the transmitting wire by means of an instrument, interjected in that wire; and we cannot see why an existing lead off the main circuit was different from a "tap" into the wire, made ad hoc.

The judge charged the jury as to the first cause of action in accord with what we have just said, but left to them the question whether the plaintiff had not consented to the "publishing" of all his messages. The interest protected by the section is the sender's alone; and the statute expressly recognizes that so far as the sender "authorizes" it, "publishing" shall be lawful. "Authorization" is equally valid, though given in advance and in general terms; and it was for the jury to decide what was the scope of the plaintiff's consent, as well as whether he consented at all. Indeed one cannot be surprised at the verdict, for the fact that the plaintiff was in general given to indecent and ferocious utterance, betokened a shamelessness which made it not improbable that he was recklessly indifferent to the opinions of others.

The errors which the plaintiff urges as...