The American District Telegraph Company, an Alabama Corporation v. Brink's Incorporated, a Delaware Corporation , 380 F.2d 131 ( 1967 )

SCHNACKENBERG, Circuit Judge.

The American District Telegraph Company, an Alabama corporation, and 47 other such corporations (severally incorporated with similar names under the laws of 47 other states of the Union), plaintiffs, have appealed from an order of the district court, sustaining a motion for summary judgment made by Brink’s, Incorporated, a Delaware corporation, defendant, and dismissing plaintiffs’ complaint.

1. This is a libel action in which jurisdiction is based on diversity of citizenship. Illinois law controls here.

Plaintiffs (a group of related, affiliated or subsidiary companies constituting the business enterprise generally known to the public as “ADT”) charge Brink’s with having maliciously published false and defamatory statements concerning ADT and affecting ADT in its business. Brink’s moved to dismiss ADT’s complaint or in the alternative for summary judgment, contending that the statements were qualifiedly privileged as a report of a judicial proceeding, that those statements accurately reported the judicial proceeding, and that ADT had not alleged facts showing actual malice on the part of Brink’s.

Brink’s claims that the statements here involved were contained in a press release prepared and distributed by it to a number of news media for the purpose of publicizing the filing of a lawsuit brought by it against ADT. The release purported (1) to describe Brink’s lawsuit and (2) quoted certain allegations from its complaint against ADT.

Substantially the theory of count I of ADT’s complaint is that the words of the press release by Brink’s, “although absolutely privileged as part of a judicial proceeding when they appeared in Brink’s complaint, lost all claim of privilege when they were published as part of the press release”. ADT in its brief sets forth substantially that count II alleges that “the portions of the press release which described Brink’s lawsuit did so in such a way as substantially to misrepresent the nature of the charges made”. In addition, ADT’s complaint alleges that “all this was done by Brink’s with actual malice, spite and ill will toward ADT and with the intent to impute dishonesty and dishonorable practices” to it and damage its reputation.

2. Plaintiffs’ counsel admit that under Illinois law there is a qualified privilege to report judicial proceedings. But they rely on a case decided in 1884, Cowley v. Pulsifer, 137 Mass. 392, 395, which spoke of

“ * * * the plain distinction between what takes place in open court, and that which is done out of court by one party alone, or more exactly, as we have already said, the contents of a paper filed by him in the clerk's office. * * * ”

and they point out that some courts have followed Cowley. However, in 1927, the final court of review of New York state rejected Cowley in Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 155-156, 52 A.L.R. 1432. Similar rulings have been made by other states, including Illinois.

Lulay v. Peoria Journal-Star, Inc., 34 Ill.2d 112, 114, 214 N.E.2d 746, 746-748 (1966). Lorillard v. Field Enterprises, Inc., 65 Ill.App.2d 65, 73-74, 213 N.E.2d 1, 5 (1st Dist. 1965).¹ Lybrand v. State Co., 179 S.C. 208, 184 S.E. 580, 584, 104 A.L.R. 1118 (1936). Paducah Newspapers, Inc. v. Bratcher, 274 Ky. 220, 118 S.W.2d 178, 179-180 (1938). Langford v. Vanderbilt University, 199 Tenn. 389, 287 S.W.2d 32, 37 (1956). Torski v. Mansfield Journal Co., 100 Ohio App. 538, 137 N.E.2d 679, 683-684 (Ohio Ct.App.1956), appeal dismissed, 165 Ohio St. 245, 135 N.E.2d 63 (1956).

Other cases to the same effect are:

Wilson v. United Press Association, 343 Ill.App. 238, 98 N.E.2d 391 (1951); Segall v. Lindsay-Schaub Newspapers, Inc., 68 Ill.App.2d 209, 215 N.E.2d 295 (1966); Watson v. Herald-Despatch Co., 221 Ill.App. 557, 559 (1921); Kantor v. Dziennik Zjednoczenia Pub. Co., 295 Ill.App. 412, 15 N.E.2d 31 (1938).

3. ADT argues, in support of its allegation that Brink’s acted with actual malice in reference to the press release, that the fact that the press release was made is some evidence of malice, and, in addition, the extent of the distribution of the press release is evidence of malice, the release having gone to various weekly magazines and “other business magazines”. In other words ADT’s argument is that, because Brink’s was interested in obtaining wide publicity for its charges against ADT, its efforts were attributable to an express malice on the part of Brink’s. But we do not believe that plaintiffs’ evidence, offered in an attempt to sustain its contention that Brink’s acted with actual malice, was sufficient to raise a jury question. Lulay v. Peoria Journal-Star, Inc., supra, 34 Ill.2d at 115-116, 214 N.E.2d 746, Reed v. Albanese, 78 Ill.App.2d 53, 223 N.E.2d 419 (1966). We agree with the Restatement of Torts, ch. 25 Title C § 611, where it is said that the privilege accorded to representing a public activity, which includes judicial proceedings, is lost only if the report is published “solely for the purpose of defaming the other and not * * * of informing the public” (emphasis supplied). It seems to us that the dissemination of neither the fact of filing of a document in court nor the facts as to the contents of the document tended to prove an improper purpose within the meaning of this rule. Thus, in Lulay, 34 Ill.2d at 115-116, 214 N.E.2d at 748 the court said:

“ * * * The burden of proving actual malice is always upon the plaintiff, and it would not be the ordinary case where a plaintiff could establish that a news report or discussion of governmental activities was only published because of actual malice. * * Although the plaintiff contends that the defendant here was guilty of actual malice, plaintiff did not offer any evidence remotely creating an issue of fact as to whether defendant’s news article was conceived or inspired solely because of a malicious design to injure the plaintiff or his business. The plaintiff had the obligation both upon the motion for summary judgment and at the trial to adduce all of the evidence he believed would satisfy his burden. * * *”

We hold that the record fails to show that there was any evidence of actual malice as alleged by plaintiffs and, so far as the main thrust of the complaint is concerned, no error occurred in the district court.

4. Finally, plaintiffs cite as error that Brink’s press release included the following statement:

“ * * * the failure of the warning devices provided by A.D.T. * * * resulted in the burglary of the Brink’s vault at Syracuse. * * * ”

They say that this reference “can be read as meaning that the sensitive microphones at the site of the burglary would not work, not that the system failed because the telephone company’s wire was cut. So read, it fallaciously and deceptively imputes complete insensitivity to the microphonic system — in contrast to a failure to prevent an ingenious burglar from electrically bridging the telephone connection so that the alarm would not go off.”

ADT’s complaint alleges that one of the press services furnished to the newspapers, and there was published, a story relating to Brink’s lawsuit which said that “ADT equipment was so insensitive that it failed to detect the firing of armor-piercing shells into Brink’s vault.”

Rather than prolong this opinion with further analyses of this subject, we adopt this statement of Brink’s brief:

“ * * * The one sentence fragment which ADT has seized upon does not permit the inference ADT draws and would not be actionable if it did. Thus, the District Court was clearly correct in deciding, as a matter of law, that the press release was substantially accurate.”

For the foregoing reasons, the order from which this appeal was taken is affirmed.

Order affirmed.

1 . In Lorillard, at 74, 213 N.E.2d at 5, the court said:

“ * * * If suit had been filed any statements concerning these facts would have been privileged as fair comment concerning a judicial proceeding. * * * ”