Samuel Insull, herein called plaintiff, a citizen and resident of Illinois, brought an action for libel in an Illinois state court against the corporate owners and publishers of publications described as Scripps-Howard daily newspapers, and the individual editors thereof.
Summons was served outside the state of Illinois on each defendant, together with a copy of the complaint, in accordance with § 16, ch. 110, R.S.Ill.1957.
Defendants procured the removal of the case to the district court and then moved to dismiss the cause on the ground that the court "lacks jurisdiction over the persons" of defendants. The court granted the motion, 172 F.Supp. 615, and from an order to that effect, plaintiff appeals.
1. We have reserved our ruling on a motion by defendants to dismiss the appeal on the ground that the action herein is barred because of these facts:
In the United States District Court for the Western District of Tennessee, since the filing of the case at bar, plaintiff sued Memphis Publishing Company and the complaint and answer therein raised the same issues as were raised in this case. Upon a trial, a jury found the issues in favor of defendant, and judgment for defendant was entered, which judgment has become final.
We believe defendants mistakenly urge that this judgment is res judicata as to all the defendants here. The charge of libel against Memphis Publishing Company in the Tennessee suit is entirely distinct from the charge of libel by publication by the other defendants named in the complaint herein. Identity of causes of action is essential to a plea of res judicata. Troxell v. Delaware, L. & W. Ry. Co., 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586; Holland v. Forcum-James C. & L. Co., 154 Tenn. 174, 285 S.W. 569; Sweeting v. Campbell, 2 Ill.2d 491, 496-497, 119 N.E.2d 237.
Nor can defendants' motion be sustained on the doctrine of estoppel by finding or verdict. A former judgment does not operate as an estoppel by verdict in a second action except where it is clear from the record that a specific material and controlling fact common to both cases was litigated and determined in the first case. Chicago Theological Seminary v. People, 189 Ill. 439, 443-444, 59 N.E. 977; People ex rel. v. Wyanet Elec. Light Co., 306 Ill. 377, 383, 137 N.E. 834; Hoffman v. Hoffman, 330 Ill. 413, 418, 161 N.E. 723; Prudential Ins. Co. of America v. Zorger, 7 Cir., 86 F.2d 446, 108 A.L.R. 498; Harris v. Mason,
There is nothing properly before this court which shows what fact was found which resulted in the verdict against plaintiff in the Memphis case. Indeed, the verdict of the jury might have been based on a finding that plaintiff had not proven that he had a general reputation in the Memphis area or that he had not proven that his reputation was damaged by the Memphis publication. The jury could have concluded that the article referred to plaintiff but that their verdict should be for defendant because plaintiff did not prove he was damaged by the Memphis article.
We see no impelling reason for dismissing this appeal and the motion of defendants is denied.
2. Plaintiff bases his claim that the district court had jurisdiction of defendants on section 17 of the Illinois Civil Practice Act, § 17, ch. 110, R.S. Ill.1957, which reads:
If plaintiff is correct in his claim as to the meaning and application of § 17 to this case, it is undisputed that service of summons on defendants was made in compliance with § 16(1) and (2) of said Act.
The controlling facts appear in affidavits filed in the district court:
The corporate defendants are incorporated and have their principal places of business in states other than Illinois. Their respective newspapers are published in states other than Illinois. No corporate defendant is licensed to do business in Illinois or has a registered agent in Illinois or maintains an office in Illinois or is listed in any Illinois telephone or business directory. No corporate defendant employs an agent who is permanently located in Illinois or maintains assets or has a bank account in Illinois. No individual defendant personally owns or operates any business in Illinois and none resides in Illinois.
The Pittsburgh Press 29; The Albuquerque Tribune 8.
Average number of defendants' newspapers mailed daily to independent news-dealers in Illinois from without the state:
New York World-Telegram and The Sun ........................ 2 Memphis Press-Scimitar ..... 1 The Indianapolis Times ..... 4.5 Cleveland Press ............ 4 Cincinnati Press ........... 4 El Paso Herald-Post ........ 1 Knoxville News Sentinel .... 1.3 The Pittsburgh Press ....... 8 The Albuquerque Tribune .... 1
Average number of defendants' newspapers mailed daily to an independent wholesaler in Illinois from without the state:
New York World-Telegram and The Sun ........................ 19
None of the corporations employs or has any reporters, advertising solicitors or other persons who are located in Illinois; none of the corporations owns or maintains any assets (either realty or personalty) in Illinois; none of the corporations has a bank account in Illinois.
Upon the foregoing facts, plaintiff contends that defendants —
After citing McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Travelers Health Ass'n v. Commonwealth of Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154; Wanamaker v. Lewis, D.C., 153 F.Supp. 195; WSAZ, Inc. v. Lyons, 6 Cir., 254 F.2d 242; and French v. Gibbs Corp., 2 Cir., 189 F.2d 787, plaintiff asserts that —
The question which arises under § 17 (1) (a) is whether the facts reveal that defendants transacted any business within the state of Illinois. We have already passed on a similar question in Schmidt v. Esquire, Inc., 7 Cir., 210 F.2d 908, certiorari denied Schmidt v. Crowell-Collier Pub. Co., 348 U.S. 819, 75 S.Ct. 31, 99 L.Ed. 646. We said, 210 F.2d at page 916:
We adhere to our ruling in that case.
Among the many cases which are authority for the proposition that a foreign publishing corporation is not transacting business in a state because it ships its periodicals into the state to subscribers or to independent contractors for resale, are the following: Street & Smith Publications, Inc. v. Spikes, 5 Cir., 120 F.2d 895, 897-898, certiorari denied 314 U.S. 653, 62 S.Ct. 102, 86 L.Ed. 524; Deighan v. Beverage Retailer Weekly & Trade Newspaper Corp., 16 A.2d 612, 613-614, 18 N.J.Misc. 705; Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133, 139-140; Whitaker v. MacFadden Publications, Inc., 70 App.D.C. 165, 105 F.2d 44-45; Cannon v. Time, Inc., 4 Cir.,
Moreover, there is no legal basis for holding the editor defendants personally liable on the theory that they transacted any business in Illinois. Plaintiff does not even suggest a basis for such a holding.
On the other hand, our recent case of National Gas Appliance Corp. v. AB Electrolux, 7 Cir., 270 F.2d 472, affords an example of what amounts to "the transaction of any business within this State."
3. Also relying on this language in § 17(1) (b): "The commission of a tortious act within this State", plaintiff maintains that the —
Upon the same facts which we have found inadequate to prove defendants transacted any business within Illinois, plaintiff now asks us to hold that all of the defendants committed a tortious act there.
Plaintiff argues that "each publication of the Lucey article is a separate tort and the subject of a separate cause of action" and also that "it is well settled that the place of wrong, or the place where the last event necessary to make the defendant liable in tort occurs, is `where the defamatory statement is communicated', and not the place `from which the offending material is sent or where it originates.'" He adds that the "several torts were nonetheless committed when the newspapers were received in Illinois after having been mailed by the defendants."
In substance, plaintiff argues that the appearance of defendants' papers in Illinois is the "last event necessary to make the defendant liable in tort". That this is a mistaken conclusion is established by Illinois law. In Winrod v. Time, Inc., 334 Ill.App. 59, 65-72, 78 N.E.2d 708, 710-714, leave to appeal denied 336 Ill. App. xiv, it was held that in cases of multi-state circulation of periodicals the cause of action for libel is absolutely complete at the time of first publication; subsequent appearances or distributions of the periodicals are of no consequence whatsoever to the creation or existence of the cause of action but are only relevant in computing damages.
It follows that the facts in this record show no tortious act committed within Illinois and hence jurisdiction under § 17 (1) (b) could not attach. Of course, plaintiff would have had a right to sue in the states where the libel was published, a right of which he took advantage when he sued one of the defendants herein in the federal district court at
For the reasons stated, the judgment of the district court is affirmed.
Corporate Defendant Editor Defendant NewspaperNew York World-Telegram The New York World-Telegram Corporation Roy W. Howard and The Sun Memphis Publishing The Memphis Press-Scimitar Company Edward J. Meeman E. W. Scripps Company Louis B. Seltzer The Cleveland Press Indianapolis Times The Indianapolis Publishing Company Walter Leckrone Times E. W. Scripps Company Dick Thornburg The Cincinnati Post Herald-Post Publishing The El Paso Company Edward M. Pooley Herald-Post Knoxville News-Sentinel The Knoxville News Publishing Company Loye W. Miller Sentinel Pittsburgh Press Company Weldman W. Forster The Pittsburgh Press New Mexico State The Albuquerque Tribune Company Dan Burroughs Tribune