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

[9] The trial court also found that The Times, by including as a ground of the prayer in its motion to quash, the following, "* * * that this court dismiss this action as to The New York Times Company, A Corporation, for lack of jurisdiction of the subject matter of said action * * *" did thereby go beyond the question of jurisdiction over the corporate person of The Times, and made a general appearance, thereby waiving any defects in service of process, and thus submitted its corporate person to the jurisdiction of the court.

The conclusions of the trial court in this aspect are in accord with the doctrines of a majority of our sister states, and the doctrines of our own decisions.

[10] Pleadings based upon lack of jurisdiction of the person are in their nature pleas in abatement, and find no special favor in the law. They are purely dilatory and amount to no more than a declaration by a defendant that he is in court in a proper action, after actual notice, bur because of a defect in service, he is not legally before the court. See Olcese v. Justice's Court, 156 Cal. 82, 103 P. 317.

In Roberts v. Superior Court, 30 Cal.App. 714, 159 P. 465, the court observed:

"The motion to dismiss the complaint on the ground that the court was without jurisdiction of the subject-matter of the action amounted, substantially or in legal effect, to a demurrer to the complaint on that ground. At all events, a motion to dismiss on the ground of want of jurisdiction of the subject-matter of the action necessarily calls for relief which may be demanded only by a party to the record. It has been uniformly so held, as logically it could not otherwise be held, and, furthermore, that where a party appears and asks for such relief, although expressly characterizing his appearance as special and for the special purpose of objecting to the jurisdiction of the court over his person, he as effectually submits himself to the jurisdiction of the court as though he had legally been served with process."

The reason dictating such conclusion is stated by the Supreme Court of North Carolina in Dailey Motor Co. v. Reaves, 184 N.C. 260 114 S.E. 175, to be:

"Any course that, in substance, is the equivalent of an effort by the defendants to try the matter and obtain a judgment on the merits, in any material aspect of the case, while standing just outside the threshold of the court, cannot be permitted to avail them. A party will not be allowed to occupy so ambiguous a position. He cannot deny the authority of the court to take cognizance of his action for want of jurisdiction of the person or proceeding, and at the same time seek a judgment in his favor on the ground that there is no jurisdiction of the cause of action.

* * * * * *

"We might cite cases and authorities indefinitely to the same purpose and effect, but those to which we have briefly referred will suffice to show how firmly and unquestionable it is established, that it is not only dangerous, but fatal, to couple with a demurrer, or other form of objection based upon the ground that the court does not have jurisdiction of the person, an objection in the form of a demurrer, answer, or otherwise, which substantially pleads to the merits, and, as we have seen, such an objection is presented when the defendant unites with his demurrer for lack of jurisdiction of the person, a cause of demurrer for want of jurisdiction of the cause or subject of the action, and that is exactly what was done in this case."

We will excerpt further from the decisions from other jurisdictions in accord with the doctrine of the above cases, but point out that innumerable authorities from a large number of states may be founds set forth in an annotation to be found in 25 A.L.R.2d, pages 838 through 842.

In Thompson v. Wilson, 224 Ala., 299, 140 So. 439, this court stated:

"If there was a general appearance made in this case, the lower court had jurisdiction of the person of the appellant. (Authorities cited).

"The filing of a demurrer, unless based solely on the ground of lack of jurisdiction of the person, constitutes a general appearance."

Again, in Blankenship v. Blankenship, 263 Ala. 297, 82 So.2d 335, the court reiterated the above doctrine.

Thus the doctrine of our cases is in accord with that of a majority of our sister states that despite an allegation in a special appearance that it is for the sole purpose of questioning the jurisdiction of the court, if matters going beyond the question of jurisdiction of the person are set forth, then the appearance is deemed general, and defects in the service are to be deemed waived.

We deem the lower court's conclusions correct, that The Times, by questioning the jurisdiction of the lower court over the subject matter of this suit, made a general appearance, and thereby submitted itself to the jurisdiction of the lower court.

Appellant's assignment No. 9 is to the effect the lower court erred in overruling defendant's demurrers as last amended to plaintiff's complaint.

The defendant's demurrers contain a large number of grounds, and the argument of the appellant is directed toward the propositions that:

"1. As a matter of law, the advertisement was not published of an concerning the plaintiff, as appears in the face of the complaint.

2. The publication was not libelous per se.

3. The complaint was defective in failing to allege special damages

4. The complaint was defective in failing to allege facts or innuendo showing how plaintiff claimed the article had defamed him.

5. The complaint was bad because it stated two causes of action."

Both counts of the complaint aver among other things that " * * * defendants falsely and maliciously published in the City of New York, State of New York, and in the City of Montgomery, Alabama. and throughout the State of Alabama, of and concerning the plaintiff, in a paper entitled The New York Times, in the issue of March 29, 1960, on page 25, in an advertisement entitled 'Heed Their Rising Voices' (a copy of said advertisement being attached hereto and made a part hereof as Exhibit 'A'), false and defamatory matter or charges reflecting upon the conduct of the plaintiff as a member of the Board of Commissioners of the City of Montgomery, Alabama, and imputing improper conduct to him, and subjecting him to public contempt, ridicule and shame, and prejudicing the plaintiff in his office, profession, trade or business, with an intent to defame the plaintiff, and particularly the following false and defamatory matter contained therein:

" 'In Montgomery, Alabama, after students sang "My Country 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.

* * * * * *

" 'Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for "speeding," "loitering," and similar "offenses." And now they have charged him with "perjury"—a felony under which they could imprison him for ten years."

[11] Where the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt are libelous per se. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649; Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 So. 332.

[12] Further, "the publication is not to be measured by its effects when subjected to the critical analysis of a trained legal mind, but must be construed and determined by its natural and probable effect upon the mind of the average lay reader." White v. Birmingham Post Co., supra.

We hold that the matter complained of is, under the above doctrine. libelous per se, if it was published of and concerning the plaintiff.

In "Dangerous Words—A Guide to the Law of Libel," by Philip Wittenberg, we find the following observations, at pages 227 and 228:

"There are groupings which may be finite enough so that a description of the body is a description of the members. Here the problem is merely one of evaluation. Is the description of the member implicit in the description of the body, or is there a possibility that a description of the body may consist of a variety of persons, those included within the charge, and those excluded from it?

* * * * * *

"The groupings in society today are innumerable and varied. Chances of recovery for libel of the members of such groups diminish with increasing size, and increase as the class or group decreases. Whenever a class or group decreases. Whenever a class decreases so that the individuals become obvious, they may recover for a libel descriptive of the group. In cases where the group is such that it is definite in number; where its composition is easily recognizable and the forms of its organization are apparent, then recognition of individuals libeled by group defamation becomes clear."

[13] The same principle is aptly stated in Gross v. Cantor, 270 N.Y. 93, 200 N.E. 592, as follows:

"An action for defamation lies only in case the defendant has published the matter 'of and concerning the plaintiff.' * * * Consequently an impersonal reproach of an indeterminate class is not actionable. * * * 'But if the words may by any reasonable application, import a charge against several individuals, under some general description or general name, the plaintiff has the right to go on to trial, and it is for the jury to decide, whether the charge has the personal application averred by the plaintiff.'

"We cannot go beyond the face of this complaint. It does not there appear that the publication was so scattered a generality or described so large a class as such that no one could have been personally injured by it. Perhaps the plaintiff will be able to satisfy a jury of the reality of his position that the article was directed at him as an individual and did not miss the mark."

And in Wofford v. Meeks, 129 Ala.; 349, 30 So. 625, we find this court saying:

"Mr. Freeman, in his note to case of Jones v. Stare, (Tex.Cr.App.) 43 S.W. 78,70 Am.St.Rep. 756, after reviewing the cases, says: 'We apprehend the true rule is that, although the libelous publication is directed against a particular class of persons or a group, yet any one of the class or group may maintain an action, upon showing that the words apply especially to him.' And further, he cites the cases approvingly which hold that each of the persons composing the class may maintain the action. We think this the correct doctrine, and it is certainly supported by the great weight of authority. 13 Am. & Eng.Enc.Law, 392, and note 1; Hardy v. Williamson, 86 Ga.551, 12 S.E. 874, 22 Am.St.Rep. 479."

[14] We judicially know that the City of Montgomery operates under a commission form of government. (See Act 20, Gen.Acts of Alabama 1931, page 30.) We further judicially know that under the provisions of Sec. 51, tit. 37, Code of Alabama 1940, that under this form of municipal government the executive and administrative powers are distributed into departments of (1) public health and public safety, (2) streets, parks and public property and improvements, and, (3) accounts, finances, and public affairs; and that the assignments of the commissioners may be changed at any time by a majority of the board.

The appellant contends that the word "police" encompasses too broad a group to permit the conclusion that the statement in the advertisement was of and concerning the plaintiff since he was not mentioned by name.

[15] We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body. Such common knowledge and belief has its origin in established legal patterns as illustrated by Sec. 51, supra.

In De Hoyos v. Thornton, 259 App.Div. 1, 18 N.Y.S.2d 121, a resident of Monticello, New York, a town of 4000 population, had published in a local newspaper an article in which she stated that a proposed acquisition of certain property by the municipality was "another scheme to bleed the taxpayers and force more families to lose their homes. * * * It seems to me it might be better to relieve the tension on the taxpayers right now and get ready for the golden age * * * and not be dictated to by gangsters and Chambers of Commerce."

The mayor and the three trustees of Monticello brought libel actions. The court originally considering the complaint dismissed the actions on the grounds that the plaintiffs were not mentioned in the article, and their connection with the municipality was not stated in the complaint. In reversing this decision the Appellate Division of the Supreme Court wrote: "There is no room for doubt as to who were the objects of her attack. Their identity is as clear to local readers from the article itself as if they were mentioned by name."

[16] The court did not err in overruling the demurrer in the aspect that the libelous matter was not of and concerning the plaintiffs.

[17] The advertisement being libelous per se, it was not necessary to allege special damages in the complaint. Iron Age Pub. Co. v. Crudup,85 Ala. 519, 5 So. 332.

[18] Where, as in this case, the matter published is libelous per se, then the complaint may be very simple and brief (Penry v. Dozier, 161 Ala. 292, 49 So. 909), and there is no need to set forth innuendo. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649. Further, a complaint in all respects similar to the present was considered sufficient in our recent case of Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441.

The Johnson case, supra, is also to the effect that where a newspaper publishes a libel in New York, and by distribution of the paper further publishes the libel in Alabama, a cause of action arises in Alabama, as well as in New York, and that the doctrine of Age-Herald Pub. Co, v. Huddleston, 207 Ala. 40, 92 So. 193, 37 S.L.R. 898, concerned venue, and venue statutes do not apply to a foreign corporation not qualified to do business in Alabama.

In view of the principles above set forth, we hold that the lower court did not err in overruling the demurrer to the complaint in the aspects contended for and argued in appellant's brief.

Assignments of error Nos. 14, 15, 16 and 17, related to the court's refusal to permit certain questions to be put to the venire in qualifying the jurors.

The appellant contends that The Times was unlawfully deprived of its right to question the jury venire to ascertain the existence of bias or prejudice. The trial court refused to allow four questions which were in effect, (1) Do you have any conviction, opinion or pre-disposition which would compel you to render a verdict against The Times? (2) Have any of you been plaintiffs in litigation in this court? (3) If there is no evidence of malice, would you refuse to punish The Times? (4) Is there any reason which would cause you to hesitate to return a verdict in favor of the The Times?

The prospective jurors had already indicated that the were unacquainted with any of the facts in the case, that they had not discussed the case with anyone nor had it been discussed in their presence nor were they familiar in any manner with the contentions of the parties. Appellant was permitted to propound at some length other questions designed to determine whether there was any opinion or pre-disposition which would influence the juror's judgment. The jurors indicated that there was no reason whatsoever which would cause them to hesitate to return a verdict for The Times.

[19, 20] Sec. 52, Tit. 30 Code of Alabama 1940, gives the parties a broad tight to interrogate jurors as to interest or bias. This right is limited by propriety and pertinence. It is exercised within the sound discretion of the trial court. has been abused where similar questions have already been answered by the prospective jurors. Dyer v. State, 241 Ala. 679, 4 So.2d 311.

[21] Only the second question could have conceivably revealed anything which was not already brought out by appellant's interrogation of the prospective jurors. Considering the completeness of the qualification and the remoteness of the second question, the exclusion of that inquiry by the trial court will not be regarded as an abuse of discretion. Noah v. State, 38 Ala. App. 531, 89 So.2d 231.

Appellant contends that without the right to adequately question the prospective jurors, a defendant cannot adequately ensure that his case is being tried before a jury which meets the federal constitutional standards laid downing such decisions as Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed. 751. It is sufficient to say that the jurors who tried this case were asked repeatedly, and in various forms, by counsel for The Times about their impartiality in every reasonable manner.

Appellant's assignment of error 306 pertains to the refusal of requested charge T. 22, which was affirmative in nature.

It is appellant's contention that refusal of said charge contravenes Amendment One of the United States Constitution and results in an improper restraint of freedom of the press, further, that refusal of said charge is violative of the Fourteenth Amendment of the federal constitution.

In argument in support of this assignment, counsel for appellant asserts that the advertisement was only an appeal for support of King and "thousands of Southern Negro students" said to be "engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights."

The fallacy of such argument is that is overlooks the libelous portions of the advertisement which are the very crux of this suit.

[22] The First Amendment of the U.S. Constitution does not protect libelous publications. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; Times Film Corporation v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403; Chaplinsky v. Ne Hampshire, 315 U.S. 568, 62S.Ct. 766, 86 L.Ed. 1031; Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.

[23] The Fourteenth Amendment is directed against State action and not private action. Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253.

Assignment of error No, 306 is without merit.

Appellant's assignment of error No. 94 also pertains to the court's refusal of its requested charge T. 22.

Appellant's argument under this assignment asserts it was entitled to have charge T. 22 given because of the plaintiff's failure to plead or prove special damages.

[24] In libel action, where the words are actionable per se, the complaint need not specify damages (Johnson v. Robertson, 8 Port. 486), nor is proof of pecuniary injury required, such injury being implied. Johnson Publishing Co. v. Davis. supra.

[25] Assignments 18, 19, 21, 23, 25, 27, 30 and 32, relate to the action of the court in overruling defendant's objections to questions propounded to six witnesses presented by the plaintiff as to whether they associated the statements in the advertisement with the plaintiff. All of the witnesses answered such questions in such manner as to indicate that they did so associate the advertisement.

Without such evidence the plaintiff's cause would of necessity fall, for that the libel was of or concerning the plaintiff is the essence of plaintiff's claim.

Section 910 of Title 7, Code of Alabama 1940, pertaining to libel, among other things, provides that " * * * and if the allegation be denied, the plaintiff must prove, on the trial, the facts showing that the defamatory matter was published or spoken of him." This statute would seem to require the proof here admitted. And in Wofford v. Meeks, 129 Ala. 349, 30 So. 625, 55L.R.A. 214, the court stated that where the libel is against a group, any one of that group may maintain an action "upon showing that the words apply specially to him," and in Chandler v. Birmingham New Co., 209 Ala. 208 95 So. 886, this court said, "Any evidence which tended to show it was not intended 'of and concerning him' was material and relevant to the issue."

In Hope v. Hearst Consolidated Publications, (2 Cir.1961), 294 F.2d 681, the court said as to the admissibility of testimony that a witness believed the defamatory matter referred to the plaintiff:

"In this regard it appears that the New York exclusionary rule represents a distinct, if not a lone, minority voice. The vast majority of reported cases, from both American state and British courts, espouse the admission of such evidence; the text writers similarly advocate its admissibility."

* * * * * *

"The plaintiff, as a necessary element in obtaining relief, would have to prove that the coercive lies were understood, by customers, to be aimed in his direction. In a case where the plaintiff was not specifically named, the exact issue now before us would be presented."

In accord with the doctrine that the instant evidence was admissible may be cited, among authorities Marr v. Putnam Oil Co., 196 Or. 1, 246 P.2d 509; Red River Valley Pub. Co., Inc. v. Bridges, (Tex.Civ.App.) 254 S.W.2d 854; Colbertv. Journal Pub. Co., 19 N.M. 156, 142 P. 146; Prosser v. Callis et al., 117 Ind. 105, 19 N.E. 735; Martin County Bank v. Day, 73 Minn. 195, 75 N.W. 1115; Ball v. Evening American Pub. Co., 237 Ill. 592, 86 N.E. 1097; Children v. Shinn, 168 Iowa 531, 150 N.W. 864.

Counsel for appellant argues that the questions " * * * inescapably carried the implication that the witness thought the ad was published of and concerning the plaintiff." Each and every one of the above named witnesses had testified previous to the instant questions, that they had associated the City Commissioners, or the plaintiff, with the advertisement upon reading it. The questions where therefore based upon the witnesses' testimony that they associated the advertisement with the plaintiff, and not merely an implication that might be read into the question.

Counsel further argues that the question is hypothetical in that none of the witnesses testified they believed the advertisement, or that they thought less of the plaintiff.

While we think such evidence of small probative value, yet it would have relevancy not only as to its effect upon the recipient, but also as to the effect such publication may reasonably have had upon other recipients. See "Defamation," 69 Harv.L.R., 877, at 884.

[27] This aside, we cannot see that the answers elicited were probably injurious to the substantial rights of the appellant. Sup.Court Rule 45. Proof of common knowledge is without injury, though it be unnecessary to offer such proof.

[28] Clearly we think it common knowledge that publication of matter libelous per se would, if believed, lessen the person concerned in the eyes of any recipient of the libel. See Tidmore v. Mills, 33 Ala. App. 243, 32 So.2d 769, and cases cited therein.

[29] Assignment of error No. 63 asserts error arising out of the following instance during the cross-examination of Gershon Aronson, a witness for The Times, which matter, as shown by the record, had been preceded by numerous objections, and considerable colloquy between counsel and court:

"Q Would you state now sir, what that word means to you; whether it has only a time meaning or whether it also to your eye and mind has a cause and effect meaning?

"Mr. Embry: Now, we object to that, Your Honor. That's a question for the jury to determine—

"The Court: Well, of course, it probably will be a question for the jury, but this gentleman here is a very high official of The Times and I should think he can testify—

Mr. Daly: I object to that, Your Honor. He isn't a high official of The Times at all—

Mr. Embry: He is just a man that has a routine job there, Your Honor. He is not—

"The Court: Let me give you an exception to the Court's ruling.

"Mr. Embry: We except."

We do not think it can be fairly said that the record discloses a ruling by the trial court on counsel's objection to the use of the term "very high official." The ruling made by the court is palpably to the question to which the objection was interposed. Counsel interrupted the court to object to the term "very high official," and second counsel added, "He is just man that has a routine job there, Your Honor." Apparently this explanation satisfied counsel, as the court's use of the term was not pursued to the extent of obtaining a ruling upon this aspect, and the court's ruling was upon the first, and main objection.

Mr. Aronson testified that he had been with The Times for twenty-five years, and Assistant Manager of the Advertising Acceptability Department of The Times, and was familiar with the company's policies regarding advertising in all it aspects, that is, sales, acceptability, etc., and that advertisements of organizations and committees that express a point of view comes within the witness's particular duties.

In view of the above background of Mr. Aronson, and the state of the record immediately above referred to, we are unwilling to cast error upon the lower court in the instance brought forth under assignment No. 63.

Assignment of error No. 81 is to the effect that the lower court erred in denying appellant's motion for a new trial. Such an assignment is an indirect assignment of all of the grounds of the motion for a new trial which appellant sees fit to bring forward and specify as error in his brief.

The appellant under this assignment has sought to argue several grounds of its motion for a new trial.

Counsel, in this connection, seeks to cast error on the lower court because of an alleged prejudicial statement made by counsel for the appellee in his argument to the jury.

[30] The record fails to show any objections were interposed to any argument by counsel for any of the litigants during the trial. There is therefore nothing presented to us for review in this regard. Woodward Iron Co. v. Earley, 247 Ala. 556, 25 So.2d 267, and cases therein cited.

Counsel also argues two additional grounds contained in the motion for a new trial, (1) that the appellant was deprived of due process in the trial below because of hostile articles in Montgomery newspapers, and (2) because of the presence of photographers in the courtroom and the publication of the names and pictures of the jury prior to the rendition of the verdict.

[31] As to the first point, the appellant sought to introduce in the hearing on the motion for a new trial newspaper articles dated prior to, and during, the trial. The court refused to admit these articles.

At no time during the course of the trial below did the appellant suggest a continuance, or a change of venue, or that it did not have knowledge of said articles.

[32] Likewise, at no time was any objection interposed to the presence of photographers in the courtroom.

[33] Newly discovered evidence was not the basis of the motion for a new trial. This being so, the court was confined upon the hearing on the motion to matters contained in the record of the trial. Thomason v. Silvey, 123 Ala. 694, 26 So. 644; Alabama Gas Co, v. Jones, 244 Ala. 413, 13 So.2d 873.

Assignment of error 78 pertains to an alleged error occurring in the court's oral charge.

In this connection the record shows the following:

"Mr. Embry: We except, your Honor. We except, your Honor. We except the oral portions of Your's Charge wherein Your Honor charged on libel per se. We object to that portion of Your Honor's Charge wherein Your Honor charged as follows: 'So, as I said, if you are reasonably satisfied from the evidence before you, considered in connection with the rules of the law the Court has stated to you, you would come to consider the question of damages and, where as here, the Court has ruled the matter complained of proved to your reasonable satisfaction and aimed at the plaintiff in this case, is libelous per se then punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.'

"The Court: Overruled and you have an exception."

Preceding the above exception the court had instructed the jury as follows:

"Now, as stated, the defendants say that the ad complained of does not name the plaintiff, Sullivan, by name and that the ad is not published of an concerning him. * * * The plaintiff, Sullivan, as a member of the group referred to must show by the evidence to your reasonable satisfaction that the words objected to were spoken of an concerning him. The reason for this being that while any one of a class or group may maintain an action because of alleged libelous words, he must show to the reasonable satisfaction of the jury that the words he complained of apply especially to him or are published of and concerning him.

* * * * * *

"So, at the very outset of our deliberations you come to this question: Were the words complained of in counts 1 and 2 of this complaint spoken of and concerning the plaintiff, Sullivan? That's the burden he has. He must show that to your reasonable satisfaction and if the evidence in this case does not reasonably satisfy you that the words published were spoken of or concerning Sullivan or that they related to him, why then of course he would not be entitled to any damages and you would not go any further."

In addition the court gave some eleven written charges at defendant's request, instructing the jury in substance that the burden was upon the plaintiff to establish to the reasonable satisfaction of the jury that the advertisement in question was of an concerning the plaintiff, and that without such proof the plaintiff could not recover.

It is to be noted that in the portion of the complained of instructions excerpted above, the court first cautioned the jury they were to consider the evidence in connection with the rules of law stated to them. The court had previously made it crystal clear that he jury were to determine to their reasonable satisfaction from the evidence that the words were spoken of and concerning the plaintiff.

Counsel for appellant contend that because of the words "and aimed at the plaintiff in this case," the instruction would be taken by the jury as charge that the advertisement was of an concerning the plaintiff, and hence the instruction was invasive of the provision of the jury.

Removed from the full context of the court's instructions the charge complained of, because of its inept mode of expression, might be criticized as confused and misleading.

[34] However, it is basic that a court's oral charge must be considered as a whole and the part excepted to should be considered in the light of the entire instruction. If as a whole the instructions state the law correctly, there is no reversible error even though a part of the instructions, if considered alone, might even erroneous.

Innumerable authorities enunciating the above doctrines may be found in 18 Ala.Dig. Trial 295(1) through (11).

Specially, in reference to portions of oral instructions that might be criticized because tending to be invasive of the province of the jury, we find the following stated in 89 C.J.S. Trial § 438, the text being amply supported by citations:

"A charge which, taken as a whole, correctly submits the issues to the jury will not be held objectionable because certain instructions, taken in their severalty, may be subject to criticism on the ground they invade the province of the jury, * * * *."

To this same effect, see Abercombie v. Martin and Hoyt Co., 227 Ala. 510, 150 So. 497; Choctaw Coal and Mining Co., v. Dodd, 201 Ala. 622, 79 So. 54.

[35] We have carefully read the court's entire oral instruction to the jury. It is a fair, accurate, and clear expression of the governing legal principles. In light of the entire charge we consider that the portion of the charge complained of to be inconsequential, and unlikely to have affected the jury's conclusion. We do not consider it probable that this appellant was injured in any substantial right by this alleged misleading instruction in view of the court's repeated and clear exposition of the principles involved, and the numerous written charges given at the defendant's request further correctly instructing the jury in the premises.

The individual appellants, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery have also filed briefs and arguments in their respective appeals. Many of the assignments of error in these individual appeals are governed by our discussion of the principles relating to the appeal of The Times. We therefore will now confine our review in the individual appeals to those assignments that may present questions not already covered.

[36] In their assignment of error No. 41, the individual appellants assert that the lower court erred in it oral instructions as to ratification of the use of their names in the publication of the advertisement. The instructions of the court in this regard run for a half a page or better. The record shows that an exception was attempted in the following language:

"Lawyer Gray: Your Honor, we except to the Court's charge dealing with ratification as well as the Court's charge in connection with the advertisement being libelous per se in behalf of each of individual defendants."

The above attempted exception was descriptive of the subject matter only, and is too indefinite to invite our review. Birmingham Ry. Light and Power Co. v. Friedman, 187 Ala. 562, 65 So. 939; Conway v, Robinson, 216 Ala. 495, 113 So. 531; Birmingham Ry, Light and Power Co. v. Jackson, 198 Ala. 378, 73 So. 627.

[37, 38] Several of the charges instruct the jury that if the jury "find" etc., while others use the term "find from the evidence." These charges were refused without error in that the predicate for the jury's determination in a civil suit is "reasonably satisfied from the evidence." A court cannot be reversed for its refusal of charges which are not expressed in the exact and appropriate terms of the law. W. P. Brown and Sons Lumber Co, v. Rattray, 238 Ala. 406, 192 So. 851, 129 A.L.R. 526.

[39] Others of the refused charges, not affirmative in nature, are posited on "belief," or "belief from the evidence." A judgment will not be reversed or affirmed because of the refusal, or giving, of "belief" charges. Sovereign Camp, W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616; Casino Restaurant v. McWhorter, 35 Ala.App. 332, 46 So.2d 582.

[40] Specification of error number 6 asserts error in the court's action in refusing to sustain the individual defendants' objection to the way one of the plaintiff's counsel pronounced the word "negro." When this objection was interposed, the court instructed plaintiff's counsel to "read it jut like it is," and counsel replied, "I have pronouncing it that way all my life." The court then instructed counsel to proceed. No further objections were interposed, nor exceptions reserved.

We consider this assignment mere quibbling, and certainly nothing is presented for our review in the state of the record.

[41] Counsel have also argued assignments to the effect that error infects this record because, (1) the courtroom was segregated during the trial below, and (2) the trial judge was not duly and legally elected because of alleged deprivation of voting rights to negroes.

Neither of the above matters were presented in trial below, and cannot now be presented for review.

[42] Counsel further argues that the appellants were deprived of a fair trial in that the trial judge was, by virtue of Local Act No. 118, 1939 Local Act of Alabama, p. 66, a member of the jury commission of Montgomery County. This act is constitutional. Reeves v. State, 260 Ala. 66, 68 So.2d 14.

Without intimating that any merit attaches to this correction it is sufficient to point out that this point was not raised in the trial below, and must be considered as having been waived. De Moville v. Merchants & Farmers Bank of Greene County, 237 Ala. 347, 186 So. 704.

Assignments 42, 121, 122, assert error in the court's refusal to hear the individual appellant's motions for new trials, and reference in brief is made to pages 2058–2105 of the record in this connection.

These pages of the record merely show that the individual appellants filed and presented to the court their respective motions for a new trial on 2 December 1960, the respective motions were continued to 14 January 1961. No further orders in reference to the motions of the individual appellants appear in the record, no judgment of any of the motions of the individual appellants appears in the record.

The motions of the individual appellants therefore became discontinued after 14 January 1961.

[43, 44] There being no judgments on the motion for a new trial of the individual appellants, and they having become discontinued, those assignments by the individual appellants attempting to raise questions as to the weight of the evidence, and the excessiveness of the damages are ineffective and present nothing for review. Such matters can be presented only by a motion for a new trial. See 2 Ala.Dig. Appeal and Error 294(1) and 295, for innumerable authorities.

Other matters are argued in the briefs of the individual appellants. We conclude they are without merit and do not invite discussion, though we observe that some of the matters attempted to be brought forward are insufficiently presented to warrant review.