Skeoch v. Ottley, 15966.

• Decision Date: 01 June 1967
• Docket Number: No. 15966.,15966.
• Citation: 377 F.2d 804
• Parties: Gordon M. SKEOCH, Appellant, v. Earle B. OTTLEY, Mario De Chabert, Patrick Williams, Fay Truitt, Warren Brown, Randall James, James Brooks, Eric Carroll, Henrick McAlpin, Leroy Arnold and Raymond Plaskett.
• Court: U.S. Court of Appeals — Third Circuit

377 F.2d 804 (1967)

Gordon M. SKEOCH, Appellant, v. Earle B. OTTLEY, Mario De Chabert, Patrick Williams, Fay Truitt, Warren Brown, Randall James, James Brooks, Eric Carroll, Henrick McAlpin, Leroy Arnold and Raymond Plaskett.

No. 15966.

United States Court of Appeals Third Circuit.

Argued January 31, 1967.

Decided June 1, 1967.

Warren H. Young, Christiansted, St. Croix, V. I. (Young & Isherwood, Christiansted, St. Croix, on the brief), for appellant.

Alfred L. Scanlan, Washington, D. C. (John L. Maduro, Charlotte Amalie, St. Thomas, V. I., Shea & Gardner, Washington, D. C., on the brief), for appellees.

Before STALEY, Chief Judge, and FREEDMAN and COFFIN^*, Circuit Judges.

OPINION OF THE COURT

COFFIN, Circuit Judge.

This is an appeal from an order of the District Court of the Virgin Islands denying plaintiff's alternative motions for judgment n. o. v. and new trial following special jury verdicts for defendants.¹

The complaint charged defendants both as conspirators and as individuals with having libelled plaintiff. Plaintiff is a prominent St. Croix businessman, president of a corporation engaged in growing sugar cane, who served from 1951 to 1953 as a director and president of the Virgin Islands Corporation (VICORP). The eight defendants, originally eleven, were, at the time of the events complained of — September 1963 — members of a faction or wing of the Democratic Party known as "Liberal Democrats identified by the Mortar & Pestle Symbol".

This cause of action arose out of the ferment occasioned in the autumn of 1963 by the election of members to the Territorial Committee of the Democratic Party.² During this campaign the Liberal Democrats published at several locations a political bulletin captioned "The Mortar Pestle" and mimeographed, appropriately, on yellow paper. The eleven issues introduced into evidence cover a period from September 7 to September 27, 1963. They deal with the contest between the Liberal Democrats and the opposing faction, the Donkeycrats, in terms of personalities and the good-evil dichotomy which are regrettably all too familiar hallmarks of political contests. The "Royal Family", including plaintiff, described as wealthy, self-seeking individuals controlling the Donkeycrats, were ranged against the Governor and the Liberal Democrats, the self-proclaimed forces of virtue. One of the few issues discussed was the future of the sugar cane subsidy; the Liberal Democrats backed the Governor's plan to lease some cane land for citrus growing, and the Donkeycrats resisted.

Between September 7 and September 17, 1963, the date of the alleged libel, plaintiff was mentioned by name in three issues of "The Mortar Pestle" fifteen times and was caricatured in two crude cartoons. The references were, of course, uncomplimentary. Plaintiff was called a "reactionary", a "sugar baron", an opponent of economic progress, a "master of deceit", and mastermind of a plot to oust a public official. On September 17 a one-page edition of "The Mortar Pestle" appeared, half of which was devoted to "Facts You Should Know".³ One of five "facts" was set forth in these words: "Do you know that when a certain large canegrower was President of VICORP he charged VICORP 5¢ a gallon to store molasses and then bought the same molasses for 3¢ a gallon?" This statement would seem to have been the proverbial straw. At any rate, it is before us as constituting the cause of action sued upon.

While, for a change, the plaintiff was not specifically identified, he recognized himself as being the only large cane grower who had held the office of President of VICORP and construed the statement as charging him "with having corruptly, fraudulently and unlawfully defrauded the Virgin Islands Corporation, a United States corporation * * *."

The cause went to trial in the spring of 1966. At the conclusion of plaintiff's evidence both sides moved for a directed verdict. Plaintiff's motion — the only one relevant to the issues here presented — was based on the contention that as a matter of law identification, defamation, and publication had been established, leaving nothing for the jury except damages. The judge denied the motion. Thereupon, defendants having rested, plaintiff's attorney offered for consideration a form of special verdict which was agreed upon along with the various jury instructions. There were no objections to the form of the special verdict or additional requests for instructions. The jury later requested and received a clarification of one of the questions put to it.

The jury rendered its verdict for defendants on the "First Cause of Action" charging conspiracy. It then found that defendants had published the offending issue, and made eleven further findings, which are set forth in the margin.⁴

The two basic issues are whether the district court erred in refusing to direct a verdict for plaintiff and whether, even if this action was not error, the special verdict is vulnerable, either because it is not supported by evidence or because it is fatally tainted by confusion and inconsistency.

Coming first to the ruling on plaintiff's motion for a directed verdict, we have noted that plaintiff asserted that identification, defamation, and publication had been conclusively proven. We agree that, on the evidence as a whole, the jury could not properly find that plaintiff had not been identified. Not only did five witnesses testify that they connected the description to plaintiff, but there was unimpeached, unrebutted evidence that plaintiff was the only person in the history of VICORP and its predecessor, the Virgin Islands Company, who could come within the description.⁵

The only witnesses who testified that they did not identify plaintiff with the description in the statement were seven of the defendants, four of whom also admitted that they knew plaintiff was a cane grower, had been president of VICORP, and that they could think of no other person fitting the description. Defendants seek comfort in the additional fact that the population of St. Croix has increased by 3,000 persons since plaintiff resigned his position with VICORP. But identification does not have to be by majority vote. It is enough if some readers reasonably understand that the plaintiff is meant. See generally Prosser, Torts § 106, at 767 (3d ed. 1964); 53 C.J.S. Libel and Slander § 11. It is clear to us — and apparently, from his comments in the record, also to the district judge — that there was no real doubt that the statement identified the plaintiff.

But plaintiff did not isolate this question as one to be taken from the jury. It was part of his three-pronged effort to take the entire case, apart from damages, from the jury. At no time did he press for an instruction that identification had been conclusively established. The other two issues were, in our opinion, appropriately left to the jury.

The question of defendants' responsibility for publication presented a factual issue. While defendants generally testified that they were members of the "Liberal Democrats identified by the Mortar & Pestle", and that the mimeographed newspaper was its organ, they also professed not to have anything to do with the particular issue of September 17 (except one defendant who admitted helping distribute it), and stated that they did not know who wrote, edited, typed, stencilled, mimeographed, drew cartoons for it, or distributed it. Nor, according to their testimony, did they know who ran the publication generally. While the jury's finding on this point accords with our conclusion from reading the record, we cannot say that an opposite finding would have been without basis, for it is the jury's province to pass upon the credibility of witnesses. We note that the plaintiff argues in his brief that "the evidence was conclusive that the defendants * * * were leaders and active workers of the organization that published the libelous statement." Conceding this, it does not follow as a matter of law that defendants were responsible for publication of the alleged libel. Plaintiff's only authority, Phelps Dodge Refining Corp. v. FTC, 2 Cir., 1943, 139 F.2d 393, specifically conditions liability of a member of a trade association on prior "knowledge that his fellows are acting unlawfully". Were political affiliation alone a basis for conclusively determining responsibility for publication of libels, political parties would suffer a mass exodus.

This leaves the issue whether the statement in question was defamatory as a matter of law.⁶ We grant that, whatever meaning may be attributed to the statement, it was not intended to be complimentary. But this is usually the case when courts are required to rule on the construction of alleged defamatory words. The alternatives are not, ordinarily, speaking evil and speaking good, but casting defamatory aspersions and non-defamatory aspersions. Plaintiff alleges that the statement accuses him of corrupt and fraudulent conduct toward a United States corporation. We readily agree that it is capable of being so construed. We also agree that it was intended to convey a derogatory meaning.

The question before us, however, is whether the statement so precludes any non-defamatory meaning that the failure of a jury to find defamation would be capricious. There are at least four non-defamatory possibilities: (a) that the statement merely meant that plaintiff gave his storage facilities to the corporation at five cents a gallon for molasses and then, in a falling market, offered a market price for purchase of three cents; or (b) that the stored molasses had deteriorated to three cents, which was all that the molasses was worth; or (c) that, when the molasses was finally sold, he was no longer associated with VICORP; or (d) that storage costs were simply higher than the price of the commodity — a phenomenon not unfamiliar to American experience with agricultural surpluses.

Granted, all of these interpretations...