August Opinion of the Supreme Court of Alabama (30,) (1962)

CITE AS 144 SO.2D 25

THE NEW YORK TIMES COMPANY ET AL.
V.
L. B. SULLIVAN.
3 DIV. 961.

Supreme Court of Alabama.
Aug. 30, 1962.

Suit for libel against nonresident, corporate, newspaper publisher and others. The Circuit Court, Montgomery County, Walter B. Jones, J., entered a judgment for the plaintiff and the defendants appealed. The Supreme Court, Harwood, J., held that the publication of libelous matter in another state and the distribution of such matter within Alabama gave rise to a cause of action for libel in Alabama, and the evidence justified an award of $500,000 damages.

Affirmed.

Activities of foreign corporation, which published newspaper and sent representatives into Alabama to solicit advertisements and gather news stories, were amply sufficient to meet minimal standards required for service of process in libel suit on corporation's resident "stringer" correspondent who was paid only for such articles as were accepted by corporation. Laws 1953, p. 347.

Statute providing for substituted service on nonresident corporations fully meets requirements of due process. Laws 1953, p. 347.

Affidavit filed by plaintiff, suing foreign newspaper corporation for libel, stated, sufficient facts to invoke statute providing substituted service on nonresident corporation. Laws 1953, p. 347.

Legislature's purpose in calling for affidavit to invoke substituted service statute was not to require detailed quo modo of business done but to furnish Secretary of Stare with sufficient information so that he could perform duties imposed on him. Laws 1953, p. 347.

Ultimate determination of whether nonresident corporation has done business in state or performed work or services in state, and whether cause of action accrues from such acts, thereby coming within substituted service statute, is judicial and not ministerial. Laws 1953, p. 347.

When nonresident prints libel beyond boundaries of state and distributes published libel in Alabama, cause of action for libel arises in Alabama as well as in state of printing or publishing of libel.

Where foreign newspaper corporation published libelous advertisement in New York and sent its papers into Alabama with carrier as its agent, freight prepaid, and with title passing on delivery to consignee, cause of action for libel arose from acts of newspaper in Alabama. Code 1940, Tit. 57, § 25; Laws 1953, p. 347.

Scope of substituted service is as broad as permissible limits of due process. Laws 1953, p. 347.

Nonresident corporation, by including in motion to quash service of process, prayer that court dismiss action as to corporation for lack of jurisdiction of subject matter of action, went beyond question of jurisdiction over corporate person and made a general appearance which waived any defects in service of process and submitted its corporate person to jurisdiction of court.

Pleading based on lack of jurisdiction of person are in their nature pleas in abatement which find no special favor in law, are purely dilatory and amount to no more than declaration that defendant is in court in proper action, after actual notice, but because of defect in service he is not legally before court.

Where words published tend to injure person libeled by them in his reputation, profession, trade or business, or charge him with indictable offense, or tend to bring individual into public contempt words are libelous per se.

Publication is not to be measured by its effect when subjected to critical analysis of trained legal mind, but must be construed and determined by its natural and probable effect upon mind of average lay reader.

Impersonal reproach of indeterminate class is not actionable but if words may by any reasonable application import charge against several defendants, under some general description of general name, it is for jury to decide whether charge has personal application averred by plaintiff.

Court would judicially know that City of Montgomery operates under commission form of government and that by provision of statute executive and administrative powers are distributed into departments of public health and public safety; streets, parks and public property and improvements; accounts, finances, and public affairs; and that assignments of commissioners may be changed at any time by majority of board. Laws 1931, p. 30; Code 1940, Tit. 37, § 51.

It is common knowledge that average person knows that municipal agents such as police and firemen are under control and direction of city governing body, and more particularly under direction and control of a single commissioner. Code 1940, Tit. 37, § 51.

Advertisement which falsely recounted activities of city police on college campus and elsewhere was libelous per se, and libelous matter was of and connected with plaintiff police commissioner.

Where advertisement was libelous per se it was not necessary to allege special damages and complaint could be very simple and brief and there was no need to set forth innuendo.

Complaint referring to false advertisement concerning police activities was sufficient to state a cause of action for libel in favor of plaintiff police commissioner.

Broad right of parties to interrogate jurors as to interest or bias is limited by propriety and pertinence and is exercised within sound discretion of trial court. Code 1940, Tit. 30, § 52.

Refusal to allow newspaper sued for libel to ask certain questions of jury venire as to bias against newspaper was not an abuse of discretion where prospective jurors had already indicated that there was no reason which would cause them to hesitate to return a verdict for newspaper. Code 1940, Tit. 30, § 52.

Refusal to allow defendant newspaper, being sued for libel, to ask of jury venire if any of them had been plaintiffs in litigation in court was not an abuse of discretion, considering completeness of qualification of prospective jurors and remoteness of question. Code 1940, Tit. 30, § 52.

First Amendment of United States Constitution does not protect libelous publications. U.S.C.A. Const. Amend. 1.

Fourteenth Amendment of United States Constitution is directed against state and not private action. U.S.C.A. Const. Amend. 14.

Where words are actionable per se complaint need not specify damages and proof of pecuniary injury is not required since such injury is implied.

Testimony of witness that they associated libelous statements in advertisement with plaintiff who was suing defendant newspaper was admissible. Code 1940, Tit. 7, § 910.

Admission of testimony by witness, who had already testified that they had associated plaintiff with libelous advertisement, that if they had believed matter contained in advertisement they would have thought less of plaintiff was not error on ground that answers were hypothetical and implied that witness thought ad was published of an concerning plaintiff.

Proof of common knowledge is harmless though it is unnecessary to offer such proof. Supreme Court Rules, rule 45.

It is matter of common knowledge that publication of matter that is libelous per se would, of believed, lessen person in eyes of any recipient of libel.

Court's reference to witness for defendant newspaper in libel action as a very high official of newspaper was not, in view of witness' background and state of record, reversible error. Supreme Court Rules, rule 45.

Where no objections were interposed to argument of counsel nothing was presented for review by claim of prejudicial statements of counsel in argument.

Defendant newspaper could not predicate error in libel trial because of hostile newspaper articles where at no time did defendant suggest continuance or charge of venue.

Defendant newspaper could not predicate error in libel trial due to presence of photographers in courtroom where at no time did was an objection interposed to their presence.

Where newly discovered evidence was not basis of motion for new trial court was confined, upon hearing motion, to matters contained in record of trial.

Court's oral charge must be considered as whole and if instruction as a whole states law correctly there is no reversible error even though part of instruction, when considered alone, might be erroneous.

Charge of court, when considered as whole, was a fair, accurate, and clear expression of governing principles and that portion of charge which referred to libelous advertisement aimed at plaintiff did not remove from jury question of whether advertisement was of an concerning plaintiff.

Statement that counsel excepted to described portions of court's charge was descriptive of subject matter only and was too indefinite to invite review.

Charges instructing jury that if the jury "find" or "find from the evidence" were refused without error in that predicate for jury's determination in civil suit is "reasonably satisfied from the evidence."

Court cannot be reversed for refusal of charges which are not expressed in exact and appropriate terms of law.

Judgment will not be reversed or affirmed because of refusal, or giving, of "belief" charges.

Refusal to sustain individual defendant's objection in libel action to way one of plaintiff's counsel pronounced word "Negro" presented nothing for review where no further objections were interposed after colloquy between court and counsel and no exceptions were reserved.

Claims that error infected record in libel action because courtroom was segregated during trial and because judge was not legally elected due to alleged deprivation of Negro voting rights could not be presented for review where such matters were not presented in trial below.

Claim that parties were deprived of fair trial in that judge was, by virtue of statute, member of jury commission must be considered waived where it was not raised in trial below. Loc. Laws 1939, p. 66.

Where there are no judgments on motion for new trial and such motions had become discontinued, assignments attempting to raise questions as to weight of evidence and excessiveness of damages were ineffective and presented nothing for review on appeal.

Questions as to weight of evidence and excessiveness of damages can be presented only by motion for new trial.

Evidence authorized award of $500,000 damages against defendant newspaper for publication of libelous advertisement and against individual defendants who subscribed their names to such advertisement.

There is presumption of correctness of verdict where trial judge has refused to grant new trial.

T. Eric Embry, Beddow, Embry & Beddow and Fred Blanton, Birmingham, and Lord, Day & Lord and Herbert Wechsler, New York City, for appellant New York Times.

Chas. S. Conley and Vernon Z. Crawford, Montgomery. for individual appellants.

R. E. Steiner, III, Sam Rice Baker, M. R. Nachman, Jr., Steiner, Crum & Baker and Calvin M. Whitesell, Montgomery, for appellee.

Harwood, Justice.

This is an appeal from a judgment in the amount of $500,000.00 awarded as damages in a libel suit. The plaintiff below was L. B. Sullivan, a member of the Board of Commissioners of the City of Montgomery, where he served as Police Commissioner. The defendants below were The New York Times, a corporation, and four individuals, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery.

Service of the complaint upon The New York Times was by personal service upon Dan McKee as an agent of the defendant, and also by publication pursuant to the provisions of Sec. 199(1) of Tit. 7, Code of Alabama 1940.

The Times moved to quash service upon it upon the grounds that McKee was not its agent, and The Times, a foreign corporation, was not doing business in Alabama, and that service under Sec. 199(1) was improper, and to sustain either of the services upon it would be unconstitutional.

After hearing upon the motion to quash, the lower court denied such motion.

In this connection the plaintiff presented evidence tending to show The Times gathers new from national press services, from its staff correspondents, and from string correspondents, sometimes called "stringers."

The Times maintained a staff correspondent in Atlanta, Claude Sitton, who covered eleven southern states, including Alabama.

During the period from 1956 through April 1960, regular staff correspondents of The Times spent 153 days in Alabama to gather new articles for submission to The Times. Forty-nine staff news articles so gathered were introduced in evidence.

Sitton himself was assigned to cover in Alabama, at various times, the so-called "demonstrations," the hearings of the Civil Rights Commission in Montgomery, and proceedings in the United States District Court in Montgomery. During his work in Alabama, he also conducted investigations and interviews in such places as Clayton and Union Springs. On some of his visits to Alabama, Sitton would stat as long as a week or ten days.

In May of 1960, he came to Alabama for the purpose of covering the Martin Luther King trial. After his arrival in Montgomery, he "understood" an attempt would be made to serve him. He contacted Mr. Roderick McLeod Jr., an attorney representing The Times, and was advised to leave Alabama. Shortly after this he call McKee, the "stringer" in Montgomery, and talked generally about the King trial with him.

In addition, The Times made an active effort to keep a resident "stringer" in Montgomery at all times, and as a matter of policy wanted to have three "stringers" in Alabama at all times.

The work of "stringers" was outlined by Sitton as follows: "When The Times feels there is a news story of note going on in an area where a particular stringer lives * * * The Times calls on a stringer for a story."

"Stringers" fill out blank cards required by The Times, which refer to them as "our correspondents." Detailed instructions are also given to "stringers" by The Times.

"Stringers" also on occasions initiate stories to The Times by telephone recordation. If these stories were not accepted, The Times pays the telephone tolls.

A "stringer" is usually employed by another newspaper, or news agency and is called upon for stories occasionally, or offers upon for stories his own. A "stringer" is paid at about the rate of a penny a word. No deductions are made from these payments for such things as income tax, social security, insurance contributions, etc., and "stringers" are not carried on the payroll of The Times. Up to July 25 for the year 1960, The Times he paid Chadwick, the "stringer" in Birmingham, $135.00 for stories accepted, and paid McKee $90.00.

It further appears that upon receipt of a letter from the plaintiff Sullivan demanding a retraction and apology for the statements appearing in the advertisement, which is the basis of this suit, the general counsel of The Times in New York requested the Assistant Managing Editor of The Times to have an investigation made of the correctness of the facts set forth in the advertisement in question. The Times thereupon communicated with McKee and asked for a report. After his investigation, McKee sent a lengthy wire to The Times setting forth facts which demonstrated with clarity the utter falsity of the allegations contained in the advertisement. McKee was also paid $25.00 by The Times for help given Harrison Salisbury, a staff correspondent of The Times when he was in Alabama on an assignment in the spring of 1960.

The Times also has a news service and sells to other papers stories sent it by its staff correspondents, "stringers," and local reporters. In this connection the lower court observed:

"Obviously, The Times considered the news gathering activities of these staff correspondents and 'stringers' a valuable and unique complement to the news gathering facilities of the Associated Press and other wire services of which The Times is a member. The stories of the 'stringers' appear under the 'slug' 'Special to The New York Times,' and there were 59 such 'specials' in the period from January 1, 1956, through April of 1960."