Sweeney v. United Feature Syndicate
Decision Date | 03 August 1942 |
Docket Number | No. 159.,159. |
Citation | 129 F.2d 904 |
Parties | SWEENEY v. UNITED FEATURE SYNDICATE, Inc. |
Court | U.S. Court of Appeals — Second Circuit |
John J. O'Connor, of New York City (William F. Cusick, of Washington, D. C., and Joseph D. Schenck, of New York City, of counsel), for plaintiff-appellant.
DeWitt, Van Aken & Nast, of New York City (MacDonald DeWitt and Harry H. Van Aken, both of New York City, of counsel), for defendant-appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff, an attorney and a member of the Congress of the United States from the State of Ohio, brought this suit in the District Court for the Southern District of New York against United Feature Syndicate, Inc., a New York corporation to recover for an alleged libel. Jurisdiction grounded upon diversity was duly alleged and is unquestioned. The suit was tried to a jury which returned a verdict for the defendant on which the judgment was entered from which the plaintiff has appealed.
Although the plaintiff took no formal exception to such refusal, he now seeks to predicate error upon the refusal to charge plaintiff's request No. 12, which was as follows: "I charge you that the article complained of in the complaint is libelous per se and if the jury believe from the evidence that such article was published as charged, then damages shall be presumed and in assessing or fixing such damages the jury may consider the extent of the publication as shown by the evidence, the wealth of the defendant, the standing and reputation of the plaintiff, and plaintiff's mental suffering, if any, that you believe would naturally arise from the nature of the charges in the article complained of herein."
The defendant has taken the position that the denial to charge this request is not properly before the court because the record on appeal does not show any exception taken as required by Rule No. 51, Federal Rules of Civil Procedure 28 U.S.C.A. following section 723c and by Rule No. 9 of this court. To correct this defect, the plaintiff has moved to amend the record to show such an exception and has shown in supporting affidavits that the trial judge and opposing counsel were fully aware of his contention since memoranda were submitted upon the point. Furthermore he asserts that after the jury had retired to consider the case counsel for both parties gathered around the reporter to have their formal exceptions noted including an exception by the plaintiff to charge his request No. 12.
It is unnecessary to pass upon the motion to amend the record since we may consider the refusal to charge as requested in these circumstances even though no formal exception appears in the record. Cf. National Fire Ins. Co. v. School Dist. No. 68, 10 Cir., 115 F.2d 232, 234. The purpose of exceptions is to inform the trial judge of possible errors so that he may have an opportunity to reconsider his rulings and, if necessary, correct them. See Rule 46, F. R. C. P.; 3 Moore's Federal Practice, p. 3090. Here it appears that there was full discussion of the point raised which adequately informed the court as to what the plaintiff contended was the law, and the entry of a formal exception after that would have been a mere technicality. Cf. Stoltz v. United States, 9 Cir., 99 F.2d 283, 284. Those cases construing Rule No. 51, F. R. C. P. strictly all involve situations where no indication was given to the judge that error would be assigned to his ruling.
The complaint, after setting forth the allegedly libelous portions of the article published on or about December 23, 1938 under the title "Washington Daily Merry-Go-Round," asserts the innuendo that it meant and intended "to convey that plaintiff is guilty of racial prejudice against persons of Jewish origin and guilty of conduct unbecoming a public officer and to hold plaintiff in contempt in the eyes of his constituents and clients he represents in a professional capacity."
The entire article is as follows:
All but the fifth and sixth paragraphs of the article is claimed to be libelous. The two questions presented on appeal are whether the trial court erroneously left to the jury the determination of whether or not this was libelous per se and whether it was error for the judge to refuse to charge that the article was libelous per se. The charge was in part as follows:
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