Brown v. Chicago, Rock Island & Pacific Railroad Co.

• Decision Date: 14 January 1963
• Docket Number: No. 13211-1.,13211-1.
• Citation: 212 F. Supp. 832
• Court: U.S. District Court — Western District of Missouri
• Parties: F. L. BROWN, Plaintiff, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, a corporation, Defendant.

212 F. Supp. 832

F. L. BROWN, Plaintiff, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, a corporation, Defendant.

No. 13211-1.

United States District Court W. D. Missouri, W. D.

January 14, 1963.

Popham, Thompson, Popham, Trusty & Conway, Kansas City, Mo., for plaintiff.

Houts, James, Randall, Hogsett & McCanse, Kansas City, Mo., for defendant.

JOHN W. OLIVER, District Judge.

This case pends on defendant's motion for summary judgment. Plaintiff's petition for damages for libel, removed to this Court from the State court, alleged that "on or about November of 1959 the defendant and its agent and servant, acting in the course and scope of his employment, one Herbert Mueller, did maliciously defame the plaintiff by making public to the plaintiff and others a writing * * *" etc.

Defendant's motion for summary judgment alleged that the letter of April 16, 1958 (which allegedly stated that plaintiff "Brown ships loads of cattle which are always or usually misrepresented or over-described") was "published in Kansas City, Missouri, on April 17, 1958 and (that) any cause of action therein for libel was barred by the two year statute of limitations of Missouri".

After defendant's motion for summary judgment had been filed, we issued a pretrial order requiring plaintiff to either admit the factual allegations in defendant's motion or to stipulate with defendant in regard to the essential facts necessary for determination of the statute of limitations question in order that any genuine issues of fact within the meaning of Rule 56 of the Rules of Civil Procedure be removed from the case. Plaintiff elected to file admissions. From plaintiff's admissions and defendant's motions it is clear that there is no genuine issue about any of the following facts:

1. That the letter of April 16, 1958 "is the letter of which he (plaintiff) is complaining in this action".

2. That the letter of April 16, 1958 was stamped "received" by the Santa Fe at Kansas City, Missouri, on April 17, 1958. (Plaintiff, as will be noted, contends that neither that fact nor any other evidence proves a "publication" of the alleged libel.)

3. That plaintiff did not actually see or have any knowledge of the letter until sometime in November, 1959.

4. That plaintiff's action was not commenced until February 14, 1961; a date more than two years after April, 1958—and a date less than two years after November, 1959.

As could be anticipated, defendant contends that "the statute was not tolled by the fact that plaintiff did not know of the Mueller letter". In reply, plaintiff concedes that "whether or not there was a `publication' of Mueller's letter on the date claimed by the defendant is a question of law", but he contends that "in Missouri, proof of publication of libelous matter requires (1) a showing that defendant was aware that the matter was or probably might be libelous; (2) that defendant delivered, or caused to be delivered, the libelous matter to some third person; and (3) that the third person read or saw the libelous matter and understood its contents" (emphasis ours).

Plaintiff further concedes that there are no genuine issues concerning the first two requirements, but in regard to the third, he argues that "there is an absolute void * * * that a third party read or understood the letter and understood its contents on April 17, 1958". Plaintiff admits that the general livestock agent of the Santa Fe wrote the Rock Island on April 10, 1958 asking for information about the cattle involved in plaintiff's claim against the Santa Fe. He also admits that on May 26, 1958, a date after the Mueller letter of April 16, 1958 had been marked "received"; that the assistant general livestock agent of the Santa Fe denied plaintiff's claim in writing. But, plaintiff insists that "the third essential fact element necessary to prove publication on the date claimed by defendant under Missouri law is both absent and at issue", and that "absent sufficient proof, there was no publication on April 17, 1958".

We do not think that the Missouri cases require what plaintiff refers to as a third essential fact element. Of course, there is general language in Becker v. Brinkop, St.L.1935, 230 Mo.App. 871, 78 S.W.2d 538, 542, to the effect that if the third person to whom the libelous matter was delivered "never read it nor heard it read, and never understood it, the reputation of the plaintiff could not be said to have been injured". But that case actually held that defendant's argument that "the term `published' is a term of art, and has accepted meaning in the law" was not a tenable argument.

The annotation entitled "`Publication' of Libel for Purposes of Statute of Limitations", 1 A.L.R.2d 384, 385, correctly states that "it is almost axiomatic that limitations begin to run against a cause of action for libel from the time of the publication of the allegedly libelous matter". The "perplexing" question always relates "to what constitutes a `publication' within the meaning of this principle". But perplexity has been introduced into a relatively simple concept by reason of the development of mass publication of metropolitan newspapers and of national magazines. Again, as noted in the annotation on page 389, "it is obvious that the process of printing and circulating modern newspapers and magazines may produce a great variety of specific factual situations having legal repercussions".

But in this case we are not required to struggle with the relatively recent development of the so-called "single publication" rule, as were the federal courts in Hartmann v. Time, Inc., 3 Cir., 1948, 166 F.2d 127, 1 A.L.R.2d 370, cert. den. 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763. Only a private letter is here involved; not a newspaper or a magazine. And in such a factual situation, still again, as pointed out in the annotation, page 389, "with respect to * * * private writings such as letters the factual situations relating to their writing, on the one hand, and their communication to others, on the other, are far less complicated as regards newspapers and magazines, and the courts have experienced relatively little difficulty in answering the few questions which have been presented to them involving the problem of `publication' of such writings for purposes of the limitation of actions of libel based thereon".

Certainly it is true that the Missouri cases have not experienced any difficulty in regard to factual situations not dissimilar to that presented by this case. Much of the Missouri law is built on quotations from and application of principles stated in Corpus Juris. In Harbison v. Chicago, R. I. & P. Ry. Co., 1931, 327 Mo. 440, 37 S.W.2d 609, 610, 79 A.L. R. 1, for example, Corpus Juris is quoted to the effect that "`Publication' in the law of defamation is the communication of defamatory matter to a third person." In McDonald v. R. L. Polk & Co., 1940, 346 Mo. 615, 142 S.W.2d 635, 638, the Supreme Court of Missouri, in similar fashion stated: "Corpus Juris defines publication, in the law of defamation, as `the communication of defamatory matter to a third person.' 36 C.J. p. 1223, Sec. 133." And also see Lonergan v. Love, St.L.1941, 235 Mo.App. 1066, 150 S.W.2d 534, 537, where the same section of Corpus Juris was quoted and relied upon.

In light of these cases, it would not be unexpected if the Missouri courts would accept Corpus Juris Secundum as present authority to be used in the formulation of their rules of decision in a case factually similar to this. In Section 156 of that work entitled "Time to Sue and Limitations" of the section on Libel and Slander, it is stated at page 240 of Volume 53: "The fact that the person defamed had no knowledge of the defamation until shortly before he brought action is of no consequence with respect to the question whether the action is barred by limitations; * * *".

And even much closer to plaintiff's factual argument in this case is Bedell v. Richardson Lubricating Co., Mo.App., K.C.1920, 226 S.W. 653. The defendant...