Dyer v. MacDougall

201 F.2d 265, 1952 U.S. App. LEXIS 2401

• Court: Court of Appeals for the Second Circuit
• Decided: December 31, 1952
• Docket: 17, Docket 22357
• Status: Published

Opinions

L. HAND, Circuit Judge.

This case comes up on appeal by the plaintiff from a judgment summarily dismissing the third and fourth counts of a complaint for libel and slander. Two questions arise: (1), whether we have jurisdiction over the appeal; (2), whether the defendants showed that there was no “genuine issue” to try within the meaning of Rule 56(c) Fed.Rules Civ.Proc. 28 U.S.C. We may start with the amended complaint, which was filed on November 24, 1950. It was in four counts, of which the first alleged that the defendant, Albert E. MacDougall, had said of the plaintiff at a directors’ meeting of the “Queensboro Corporation” : “You are stabbing me in the back.” The second count alleged that MacDougall had written a letter to one, Dorothy Russell Hope, the plaintiff’s wife’s sister, containing the words: “He” — the plaintiff — “has made false statements to my clients in Philadelphia,” and “He has presented bills for work he has not done.” The third count alleged that MacDougall had said to a lawyer, named Almirall, that a letter sent out by the plaintiff to the shareholders of the “Queensboro Corporation” was “a blackmailing letter.” The fourth count alleged that MacDougall’s wife, as MacDougall’s agent, had said to Mrs. Hope that the plaintiff had “written and sent out a blackmailing letter.” On December 26, 1950, the defendants, before answer, moved for judgment summarily dismissing the second, third and fourth counts, supporting their motion by affidavits of MacDougall, MacDougall’s wife, and Almirall, and by a deposition of Mrs. Hope, which the plaintiff himself had already taken. Each of the defendants unequivocally denied the utterance of the slanders attributed to him or her; and Almirall and Mrs. Hope denied that he or she had heard the slanders uttered. On his part the plaintiff replied with several affidavits of his own, the contents of all of which would, however, be inadmissible as evidence at a trial upon the issue of utterance. On January 24, 1951, the defendants filed an unverified answer denying the defamatory utterances, and on the same day they brought on their motion for hearing before Judge Kennedy. He offered the plaintiff an opportunity to take depositions of Mr. and Mrs. MacDougall and of Almirall, and a second deposition of Mrs. Hope; and by consent the case was then adjourned to allow the plaintiff to take the depositions. However, towards the end of October 1951, he told the court that he did not wish to do so, and on December 28, 1951 (the defendants having meanwhile withdrawn their motion as to the second count), the judge decided the defendants’ motion by summarily dismissing the third and fourth counts on the ground that upon the trial the plaintiff would have no evidence to offer in support of the slanders except the testimony of witnesses, all of whom would deny their utterance. On this opinion, D.C., 12 F.R.D. 357, he entered the judgment in suit on January 7, 1952, from which the plaintiff took no appeal within thirty days. However, on February 20, 1952, he wrote a letter to the judge, asking an extension under Rule 73(a) of thirty days within which to appeal; and this he followed on the 25th by a motion for a reargument, repeating his request for the extension. On March 4, 1952, the judge filed a second opinion, granting the reargument, but again deciding that counts three and four should be dismissed. D.C., 109 F.Supp. 444. However, he granted an extension of thirty days for the time to appeal, and, apparently sua sponte, “certified” “that I did give an express direction for the entry of judgment, and that there is no reason for delay.” On March 4, 1952, the plaintiff filed a notice of appeal from the judgment.

As we have said, the first question is whether we have any jurisdiction over the appeal taken. Before the amendment of Rule 54(b) an appeal would have lain from the judgment. In Collins v. Metro-Goldwyn Pictures Corporation, 2 Cir., 106 F.2d 83, we explicitly overruled Sheppy v. Stevens, 2 Cir., 200 F. 946; and in Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478, the Supreme Court decided that an appeal lay from a judgment that finally disposed of one of several “claims for relief,” joined in a single action, provided that “the claims are ‘entirely distinct’ ”, 316 U.S. at page 285, 62 S.Ct. at page 1087. There can be no doubt that the “claims” pleaded in the third and fourth counts are “entirely distinct” from those in the first and second. The third count is for a slander, uttered by MacDougall to Almirall, which was different in the words used, and in time and place of utterance, from the slander alleged in the first count; and equally different from the libel alleged in the second. The fourth count is for a slander uttered by Mrs. MacDougall to Mrs. Hope that was also as different — and in the same respects — from the first and second counts. The fact that all grew out of “the plaintiff’s employment by the Queensboro Corporation,” does not qualify their independence of one another. The wrong in all defamation is the utterance, and each utterance upon a separate occasion is a complete wrong in itself, even though it be the repetition of an earlier utterance — which incidentally was not the case here. Woods v. Pangburn, 75 N.Y. 495; Cook v. Conners, 215 N.Y. 175, 109 N.E. 78, L.R.A. 1916A, 1074. Therefore before the amendment to Rule 54(b), the judgment of January 7, 1952, would have been immediately appealable, regardless of the continued pendency of the first and second counts; and we shall assume that the time to appeal from it would have expired, not only before March 4, 1952, but before the letter of February 25th in which the plaintiff asked for an extension. However, the action included “multiple claims”: i. e. “more than one claim for relief”; and in such an action under the amendment to Rule 54(b) no> single claim may be appealed unless the judge files the “determination” that the rule provides, which then endows it with the finality that it would have had before the Rule was amended. For this reason we held in Republic of China v. American Express Co., 2 Cir., 190 F.2d 334, 339, that in a case of “multiple claims” the period of limitation upon the right of appeal does not begin to run until the judge makes the required “determination.” It follows that March 4, 1952, the day of the “determination,” was the first day on which the plaintiff could have appealed, and that the appeal was therefore taken in time.

The motion to dismiss will therefore be denied, which brings us to the merits. The question is whether, in view of the defendants’ affidavits and Mrs. Hope’s deposition, there was any “genuine issue” under Rule 56(c) as to the utterance of the slanders. The defendants had the burden of proving that there was no such issue; on the other hand, at a trial the plaintiff would have the burden of proving the utterances; and therefore, if the defendants on the motion succeeded in proving that the plaintiff would not have enpugh evidence to go to the jury on the issue, the judgment was right. As the plaintiff has refused to avail himself of the privilege under Rule 56(f) of examining by deposition the witnesses whom the defendants proposed to call at the trial, we must assume that what they said in their affidavits they would have repeated in their depositions; and that what they would have said in their depositions,,they would say at a trial, with one possible exception, the consideration of which we will postpone for the time being. With that reserve we will therefore first discuss the judgment on the assumption that the record before us contains all the testimony that would appear at a trial in support of the slanders. We have not forgotten that the plaintiff swears that his wife told him on March 8, 1950, that Mrs. Hope had said to her on March 7, 1950, that she, Mrs. Hope, could forgive the plaintiff “everything except that letter,” meaning a letter, written by the plaintiff and addressed to the shareholders of the “Queensboro Corporation,” which Mrs. MacDougall according to the complaint described as a “blackmailing letter.” The plaintiff did not submit his wife’s affidavit that Mrs. Hope had told her what he says his wife said to him she did; but we shall assume that such an affidavit is in the record. Mrs. Hope’s putative declaration to Mrs. Dyer would of course be hearsay, but the plaintiff says that it would nevertheless be competent under the exception as to “spontaneous exclamations.” We cannot agree. The time of Mrs. MacDougall’s statement to Mrs. Hope is not fixed except that it is said to have been between December 13th and March 7th; and, strictly, we might dispose of the point because there is no reason to say that the interval was not two months. But let us suppose that Mrs. MacDougall had called up Mrs. Hope only the day be-, fore Mrs. Hope narrated the talk to her sister. The argument must be that the emotional stress set up in Mrs. Hope’s mind by Mr. MacDougall’s information endured for twenty-four hours and so far suspended her ordinary powers of deliberation as to make her declaration like the ejaculation of a person injured in an accident, or suddenly faced with' a vital crisis. “The utterance must have been before there has been time to contrive and fabricate, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” Wigmore § 1750(b). So we are to suppose that, when Mrs. Hope learned that her brother-in-law, whom incidentally she had recently “castigated,” had sent out a letter that could be described as blackmailing MacDougall, it so far obsessed her deliberative faculties that, although she did not call up her sister that day, she remained unable to “contrive or fabricate” for twenty-four hours. Unless we are altogether to abandon the hearsay rule, it is difficult to imagine a situation more appropriate for its application. Finally, any declaration of Mrs. Hope would be incompetent as contradictory of her testimony, if the plaintiff should call her as his witness. It is true that Rule 43(b) makes competent inconsistent statements of a witness called by a party, if the witness is the adverse party himself, but Mrs. Hope is not a party. If the plaintiff called her and she repeated her deposition, he could not use his wife's contradictory version of the interview between her and Mrs. MacDougall.

Hence, if the cause went to trial, the plaintiff would have no witnesses by whom he could prove the slanders alleged in the third and fourth counts, except the two defendants, Almirall and Mrs. Hope; and they would all deny that the slanders had been uttered. On such a showing how could he escape a directed verdict? It is true that the carriage, behavior, bearing, manner and appearance of a witness — in short, his “demeanor” — is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale.¹ Moreover, such evidence may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.

Nevertheless, although it is therefore true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him. This is owing to the fact that otherwise in such cases there could not be an effective appeal from the judge’s disposition of a motion for a directed verdict. He, who has seen and heard the “demeanor” evidence, may have been right or wrong in thinking that it gave rational support to a verdict; yet, since that evidence has disappeared, it will be impossible for an appellate court to say which he was. Thus, he would become the final arbiter in all cases where the evidence of witnesses present in court might be determinative. We need not say that in setting aside a verdict the judge has not a broader discretion than in directing one;2 for we have before us only the equivalent of a direction. It may be argued that such a ruling may deprive a party of a possibly rational verdict, and indeed that is theoretically true, although the occasions must be to the last degree rare in which the chance so denied is more than fanciful. Nevertheless we do not hesitate to set against the chance so lost, the protection of a review of the judge’s decision.

There remains the second point which we reserved for separate discussion: i. e. whether by an examination in open court the plaintiff might extract from the four witnesses admissions which he would not have got on the depositions that he refused. Although this is also at best a tenuous possibility, we need not say that there could never be situations in which it might justify denying summary judgment. It might appear for example that upon a deposition a witness had been recalcitrant, or crafty, or defiant, or evasive, so that the immediate presence of a judge in a court-room was likely to make him tell more. That would be another matter; and it might be enough. But the plaintiff is in no position to invoke such a possibility for he has refused to try out these witnesses upon deposition, where he might discover whether there was any basis for supposing that awe of a judge was necessary to make them more amenable. A priori we will not assume that that is true. The course of procedural reform has all indeed been towards bringing witnesses before the tribunal when it is possible; but that is not so much because more testimony can be got out of them as because only so can the “demeanor” evidence be brought before the tribunal.

Judgment affirmed.

1 . Arnstein v. Porter, 2 Cir., 154 F.2d 464; Broadcast Music Inc. v. Havana Madrid Restaurant Co., 2 Cir., 175 F.2d 77; Colby v. Klune, 2 Cir., 178 F.2d 872; N. L. R. B. v. Dinion Coll Co., 201 F.2d 484.

2 . Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147.