Applewhite v. Memphis State University

• Decision Date: 14 May 1973
• Parties: Sammy D. APPLEWHITE, Plaintiff-Appellant, v. MEMPHIS STATE UNIVERSITY et al., Defendants-Appellees.
• Court: Tennessee Supreme Court

Page 190

495 S.W.2d 190

Sammy D. APPLEWHITE, Plaintiff-Appellant, v. MEMPHIS STATE UNIVERSITY et al., Defendants-Appellees.

Supreme Court of Tennessee.

May 14, 1973.

Bruce Conley, Charles E. Maness, Maness, Conley & Hayes, Union City, for plaintiff-appellant.

David M. Pack, Atty. Gen., of Tenn., C. Hayes Cooney, Asst. Atty. Gen., Nashville for Memphis State University.

J. Alan Hanover, Allen S. Blair, Hanover, Walsh, Barnes & Jalenak, Memphis, for Memphis State University Press.

J. B. Cobb, Memphis, for Paul J. Vanderwood.

OPINION

DYER, Chief Justice.

This is a direct appeal from the judgment of the trial judge sustaining the motions to dismiss filed by each of the defendants, after determining the cause of action was barred by the applicable statute of limitations and by the doctrine of sovereign immunity as it applied to some of the defendants.

On December 2, 1970, the plaintiff, Sammy D. Applewhite, filed this suit alleging that a book entitled 'Night Riders of Reelfoot Lake' written by the defendant, Paul J. Vanderwood, and published by the defendant, Memphis State University Press, Inc., which was written by Mr. Vanderwood while he was an employee of Memphis State University, contained certain false statements which were published with such willful disregard for the truth that they were calculated to defame, humiliate and embarrass the plaintiff. Specifically, the plaintiff referred to the following excerpt from the book:

There is still sporadic violence of the crudest sort; for example, sam Apple-white, a defendant in the Riders' trial was later killed by his son in a knife fight.

According to a stipulation of the parties, copies of the book were released for sale on October 16, 1969, and the first book was sold on October 27, 1969. The plaintiff alleged in his complaint copies of the book were sold in Obion County during the months of October and November, 1970, just prior to the date on which he filed this lawsuit.

The trial judge filed a written decision in this matter on March 20, 1972, dismissing the suit in its entirety on the pleas of the defendants of the statute of limitations and governmental immunity. The plaintiff-appellant has assigned error regarding each ground for the dismissal.

In considering the question of whether the statute of limitations period has expired, it is necessary at the outset to determine whether the printing, publishing and sale of a large number of books gives rise to a single cause of action or to numerous causes of action, each one accruing when an individual copy is distributed to a buyer. The issue is, specifically, whether Tennessee law approves the 'single publication rule' or the 'multiple publication rule' regarding actions for libel. If numerous causes of action have arisen, sales of the book in October and November, 1970, created causes of action not barred by the statute of limitations. If a single cause exists the action may be barred.

The traditional common law approach to libel actions has been that each communication of a defamatory statement gives rise to a new cause of action and, thus, the printing and delivery of copies of one edition of a newspaper or book would create many causes of action. A number of recent decisions, however, have held that a single cause of action arises in those circumstances and the single complaint encompasses all the acts of printing and distribution by the defendants.

The trial judge in his opinion wrote that 'the precise question is not answered by any Tennessee cases or statutes.' Inasmuch as counsel for the appellant has cited additional Tennessee authority in his brief on appeal, it is, however, necessary to discuss the cases and statute which have been noted. It is the appellant's contention that the law of Tennessee as stated by the courts and Legislature is that every delivery of a libelous statement constitutes a separate cause of action.

In Underwood v. Smith, 93 Tenn. 687, 27 S.W. 1008 (1894), the plaintiff filed an action based on an article written by the defendant Smith and published in the April 12, 1892 edition of the morning newspaper, the Knoxville Daily Tribune. The same article had been printed on the evening of April 11, 1892, in the Knoxville Evening Sentinel, and the plaintiff had been awarded a judgment for $340.00 in an action based on the publication in the Evening Sentinel. The Court reversed the trial court's dismissal and determined that the second action was not barred by application of the doctrine of res judicata.

The Court found the printings in different newspapers to create two causes of actions which involved different evidence, damages, and possible defendants based on differences in the times of distribution and number of purchasers. That case did not consider the question of whether separate copies of the same issue would create separate causes of actions and that is the question in the case before us. Absent a publication of Mr. Vanderwood's statement elsewhere than this book, the Underwood decision is inapplicable.

In Riley v. Dun & Bradstreet, 172 F.2d 303 (6th Cir. 1949), the Court determined that the one-year statute of limitations in Tennessee did not bar an action based on the republication of a libelous report two months before the action was commenced. In the case, sub judice, however, no second edition or other reprinting has been shown and the Riley case does not consider whether recent distribution without a republication would support an action.

In Forgey v. Wallin, 197 Tenn. 20, 270 S.W.2d 342 (1954), this Court said:

It is settled law in this State that each publication of a libel constitutes a separate cause of action. Underwood v. Smith, 93 Tenn. 687, 27 S.W. 1008. 197 Tenn. at 26, 270 S.W.2d at 344.

The Underwood case, referred to above, was concerned with two newspapers rather than numerous copies of a single book or newspaper and to that extent, the statement in Forgery was not an endorsement of the multiple publication rule. Moreover, the statement was dictum used to illustrate the breadth of an action for libel and supporting the court's holding that actions for libel and slander could not be included by amendment within an action for breach of contract.

The plaintiff argues the term 'publication' has been so defined by Tennessee law that every instance of the distribution of a libelous writing must be a separate cause of action. Particularly, the appellant cites Little Stores, et al v. Isenberg, 26 Tenn.App. 357, 172 S.W.2d 13, 16 (1943), which said that 'publication in the law of defamation is the communication of defamatory matter to a third person . . ..' 36 C.J. § 169. Likewise, reference is made to T.C.A. § 39--2702, regarding criminal libel which states:

No printing, writing, or other thing is a libel without publication; but the delivering, selling, reading, or otherwise communicating a libel, or causing the same to be delivered, sold, read or otherwise communicated to one or more persons or to the party libeled, is a publication thereof.

The term 'publication' causes some confusion in a libel case such as this because it is both a business term meaning printing and distribution of written materials and a legal term meaning communication of libelous matter to a third person. Painter, 'Republication Problems in the Law of Defamation.' 47 Va.L.Rev. 1131 (1961); 62 Harv.L.Rev. 1041 (1949). Moreover, 'publication' used as a legal term in the Isenberg case and in T.C.A. § 39--2702 does not determine how many causes of action are created by printing and distribution of a libelous book. Rather, use of the legal term in those instances merely indicates that publication is an essential element of a libel action without which the complaint must be dismissed. Thus, after an edition of a book is printed and one copy is sold to a third party, then a cause of action for libel can be sustained. As to whether additional sales create additional actions, on this precise question involved in this case, Tennessee law is silent.

A review of the Tennessee authorities, therefore, supports the trial judge's determination that Tennessee has not adopted the multiple publication rule or the single publication rule. Therefore, it is necessary to consider the nature of such rules and the policies which support their application.

The traditional common law rule was that distribution of numerous copies of a libelous writing created multiple causes of action each one accruing at the time of distribution. Hence, in the case of Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng.Rep. 75 (1849), a statement in a newspaper published seventeen years earlier was the basis of an action which relied on a sale within the existing six-year statute of limitations. That rule was approved in the First Restatement of Torts § 578, Comment (b). However, few jurisdictions have re-affirmed it recently.

Under the single publication rule,

. . . an entire edition of a newspaper, magazine or book is treated as only one publication and the plaintiff is permitted to plead and prove merely a general distribution of the libel and show the extent of the circulation as evidence bearing on the damages. Prosser, Torts § 113, at 769.

This rule has the support of authors of leading treatises. Prosser, supra; F. Harper and F. James, The Law of Torts § 5.16 at 394. Likewise, the commissioners on Uniform State Laws have prepared the Uniform Single Publication Act, which has been enacted by several states.

The single publication rule has been developed by the courts of many states as a part of the common law. See Annot. 'What Constitutes 'Publication' of Libel in Order to Start Running of Period of Limitations'. 42 A.L.R.3d 807. In fact, Professor Prosser has said that the 'majority of American courts' have developed the rule (Prosser, Torts § 113, at 769), and a quarter century ago the rule was described as 'firmly established.' Gregorie v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45, 47...