Rosenfeld v. Curtis Pub. Co., 251

• Decision Date: 09 July 1947
• Docket Number: No. 251,Docket 20576.,251
• Parties: ROSENFELD v. CURTIS PUB. CO.
• Court: U.S. Court of Appeals — Second Circuit

163 F.2d 660 (1947)

ROSENFELD v. CURTIS PUB. CO.

No. 251, Docket 20576.

Circuit Court of Appeals, Second Circuit.

July 9, 1947.

Mortimer Hays, of New York City (Hays, Podell & Shulman and Mortimer

Feuer, all of New York City, on the brief), for plaintiff-appellant.

Wm. Dwight Whitney, of New York City (Cravath, Swaine & Moore, George S. Collins, and Ralph L. McAfee, all of New York City, on the brief), for defendant-appellee.

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

CLARK, Circuit Judge.

This appeal is from a judgment entered on a verdict for defendant in an action for libel. Plaintiff seeks reversal principally on two grounds: (1) error in the charge on burden of proof, and (2) failure to dismiss two defenses of consent on plaintiff's motion before trial, renewed at the trial.

The allegedly libelous material appeared in the July 1, 1944, edition of defendant's magazine, The Saturday Evening Post. It was contained in an article entitled, "How to Beat the Races" and in a one-column photograph appearing in connection with it. The picture shows plaintiff three-quarters facing the camera, with his left hand on the shoulder, and apparently whispering into the ear, of a man whose back is toward the camera. A grandstand crowded with people is in the background. Underneath the picture is the caption, "`How can we lose?' This race-track question is often the prelude to a very bad investment." In the column next to the picture, in the text of the article, there appear the statements: "* * * what chance has the average better, influenced by hunches, seedy touts and vagrant tips, of picking one horse out of a large field completely unknown to him and making a buck for himself?" and "All systems are extremely fallible, but any one is infinitely better than picking horses haphazardly or listening to hangers-on." Neither the plaintiff's identity nor that of the other man, identified at the trial as Samow, is revealed in the article or the picture. In the suit plaintiff contended that, because of the proximity of the offending language to the picture, he was held up to contempt and ridicule as a "seedy tout" or "hanger-on" at race tracks.

Defendant had secured the photograph from the Wide World photographic agency after it had accepted the article for publication. The circumstances under which the photograph was made were sharply disputed. Falk the photographer testified for the defendant that the picture was taken in 1938 at the Empire City Race Track as part of an assignment to get some horse-racing pictures. Under Falk's version he met plaintiff in the company of Samow, an old friend of Falk, at the track. Samow requested that Falk take his picture, and Falk acquiesced, explaining that he wanted a photograph of "passing information along." The two then posed for two photographs at Falk's direction, one of which became the picture in suit.

On the other hand, plaintiff denied posing for the photograph or knowledge of when it was taken. Samow, testifying for plaintiff, stated that the picture could not have been taken in 1938. To prove this he produced a suit resembling the one he was wearing in the picture. He testified that this was the first suit he owned of the type appearing in the picture and that he had purchased the suit from a business concern which had not existed before 1941. But, as the defendant was able to point out, the suit in the picture had four buttons on its sleeve, and the suit exhibited by Samow had only three. Samow then asserted that the suit might have been altered.

Further to cast doubt upon the date claimed by Falk, Samow testified somewhat equivocally that he had not been to the races before 1940. But in another photograph produced by Falk having a background similar to the picture in suit, though not definitely identified by Falk as having been taken on the same day, Samow appears in the company of a man holding a 1938 racing program, This testimony discrediting the plaintiff's version was therefore strong and was apparently accepted by the jury, who found for the defendant.

Plaintiff originally brought suit in the Supreme Court of New York, and defendant, as a citizen of another state, removed the case to the district court below. Plaintiff moved, under Rules 12(b), 12(f), and 56, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss four of the defenses set up in defendant's answer. This motion was granted as to two defenses, but was denied as to two. The denial was reaffirmed by the trial judge at the trial. Plaintiff appeals from the denial of his motions as well as from the final judgment entered on the verdict against him.

One of the defenses which survived plaintiff's motion alleged as a complete defense "that the taking of said picture and the use of it in connection with an article devoted to the subject of betting on horse races was with the knowledge and consent of plaintiff." Despite the fact that the defense did not allege that plaintiff consented to the use of the photograph with this particular article, it was sufficient. Whether or not the consent was broad enough to cover this article was a question to be determined by the triers of fact. Schoepflin v. Coffey, 162 N.Y. 12, 20, 21, 56 N.E. 502; Hope v. I'Anson and Weatherby, 18 T.L.R. 201, 205; Cook v. Ward, 6 Bing., C.P., 409, 130 Eng.Rep. 1338. Hence the District Court properly denied the motion, and the trial judge was correct in refusing to dismiss the defense at the end of trial. Burton v. Crowell Pub. Co., 2 Cir., 82 F.2d 154, and Sinclair v. Postal Telegraph & Cable Co., Sup.Ct., 72 N.Y.S.2d 841, are not contrary. In each of these cases the photograph itself, because of grotesque distortion or addition of photographic matter, was not one to which plaintiff had consented. Therefore, in those cases no issue of consent was presented.

The other defense unsuccessfully attacked was a partial defense of good faith and lack of malice apparently pleaded in mitigation of damages. To support these allegations defendant relied upon the allegations of plaintiff's consent to the photograph. The only facts available to show good faith as a partial defense are those known to the defendant at the time of publication. Sun Printing & Publishing Ass'n v. Schenck, 2 Cir., 98 F. 925, 929; Hatfield v. Lasher, 81 N.Y. 246; Morey v. Morning Journal Ass'n Co., 123 N.Y. 207, 25 N.E. 161, 9 L.R.A. 621, 20 Am.St.Rep. 730. Here defendant stood, as to knowledge of consent, in the shoes of Wide World, from which it had purchased the right to use the photographs. Wide World, in turn, could take advantage of the knowledge of its agent, the photographer Falk. The refusal to dismiss the defense was therefore proper. Moreover, under present liberal procedure the lack of a former allegation of the time when knowledge was obtained will not deprive a party of a defense of good faith when he has presented facts at the trial to support such a defense. See Rule 15(b), F.R.C.P. The court's refusal to strike the defense after trial was therefore also correct. Finally, had the failure to dismiss the partial defense been error at the time, it would now be harmless, since the jury found consent as a complete defense and the court entered judgment on the verdict. See Reitmeister v. Reitmeister, 2...