Before MAJOR, Chief Judge, and KERNER and LINDLEY, Circuit Judges.
This appeal is from an order granting defendant's motion to dismiss and dismissing a complaint in two paragraphs charging libel and invasion of plaintiff's right of privacy.
The offending matter was contained in the first of a series of six feature stories written by Elgar Brown with the foreword on the last five that they were "on the blood-smeared career of the late outlaw, John Dillinger, whose influence on those with whom he came in contact was completely evil. The series was inspired by the recent death, in squalor, of Patricia Cherrington, Dillinger gang 'moll'." The stories were published on successive days from May 8 to May 13, 1949, in the Chicago Herald-American, a newspaper having extensive circulation, according to the complaint, in Lake County, Indiana, where plaintiff, a lawyer, resides and practices his profession.
The first story carried a bold headline, "How Dillinger Curse Pursued Pals to Grave," and the following subcaption:
"(Some people are drawn to the vultures of crime like flies into a web. The lure is tawdry and mean and gaudy with false glamor. It's a fatal attraction.
"Greed or distorted vanity led many to serve John Dillinger in that brutal killer's epic career of outlawry. This series, inspired by the recent squalid death of Dillinger gang moll Patricia Cherrington, shows that the bandit chief's influence was wholly evil and that none escaped the Dillinger curse.)"
This first story was illustrated by three pictures, one of which was of Dillinger and plaintiff, taken in 1934 at a time when Dillinger had been captured in Arizona and brought back to Indiana and lodged in a jail in Crown Point from which he escaped a short time later. It showed Dillinger standing next to plaintiff with one hand on his shoulder, with the caption below: "Victim of the Dillinger curse was Robert Estill, Lake County, Indiana, prosecuting attorney, who foolishly struck a friendly pose with the noted outlaw. The killer's subsequent toy-gun escape from a Hoosier jail spelled the end of Estill's career. He was virtually laughed out of office and public life." The article also contained the following text:
"Posed with Arm About Bandit
"Probably the most innocent of all the victims was Prosecutor Robert Estill of Lake County, Ind.
"Estill felt so expansive when they brought Dillinger to Crown Point for a too-brief sojourn in the county jail that he posed for pictures with an arm about John in an apparently brazen show of friendship and admiration.
"It was literally a fatal mistake. Following Dillinger's epic crashout with a wood-carved gun, Estill lived long enough to be laughed out of office. Then, a broken man, he died."
The picture and its accompanying descriptive matter and the text set forth above are the only reference to plaintiff by name in the entire series. Otherwise the stories pictured the lurid career of Dillinger in crime and the part played by his various associates, and described the bad end to which, according to the stories, they all came, without exception.
The complaint asserts that the statements relating to plaintiff by name, taken in connection with the statements contained in the entire series, constituted an inference or innuendo that he was a crony, pal, friend and admirer of the outlaw and one of his many associates who participated in his escapades, and that the series classified him as one of a group of the various characters who were criminals or had criminal associations or tendencies, all of whom were intimate pals or cronies of Dillinger and came under the spell of his curse and for that reason to an evil end. Plaintiff denied that he was "laughed out of office" and alleged that he had been actively engaged in political activities and had held public office since "said date" and that he had engaged in the practice of law ...