Dale System v. Time, Inc., Civ. A. No. 3787.

Decision Date28 January 1953
Docket NumberCiv. A. No. 3787.
Citation116 F. Supp. 527
CourtU.S. District Court — District of Connecticut
PartiesDALE SYSTEM, Inc., v. TIME, Inc. et al.

Fleming James, Jr., Harry P. Lander, New Haven, Conn., for plaintiff.

Cummings & Lockwood, by William H. Timbers, Stamford, Conn., for defendants.

HINCKS, Chief Judge.

This is an action in tort. Plaintiff is a Connecticut corporation which furnishes to clients, most of which are retail stores, in Connecticut, New York, Massachusetts, Rhode Island and New Jersey, a service for testing the efficiency and honesty of the clients' employees. This is done by reports recording the experiences of plaintiff's employees, posing as ordinary customers, in making purchases at the clients' stores. Defendant Willmark is engaged in the same line of business. Both Willmark and Time are New York corporations.

The complaint alleges that the defendants caused to be published an article in Life magazine describing in detail Willmark's business and asserting falsely and maliciously that Willmark was "unique" and "the only company of its kind." The complaint also alleges that the defendants caused the Life article to be digested in the Readers Digest of September 1951, in which it was falsely and maliciously stated that Willmark is "the only company of its kind in the world"; and that the defendants caused to be broadcast over radio Station W O R a summary of the Readers Digest article with the statement that "Willmark is the only company of its kind."

The parties have stipulated as follows. The text of the Life article was prepared in New York, the plates were made in Illinois, and printing first commenced in Illinois which was followed by printing in Philadelphia and Los Angeles. The broadcast took place from a studio in New York City, but was accomplished through a transmitter located in New Jersey. The broadcast could be heard from Massachusetts to Georgia. The Readers Digest article was edited in New York; its plates were made in New Hampshire; the printing for the domestic issue was done in New Hampshire and Ohio; and foreign editions were printed in many foreign countries. And it was in New York that Willmark gave Time the information upon which the alleged publications were made.

The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, and plaintiff has moved to strike defendants' first defense, which is that the complaint fails to state a claim upon which relief can be granted.

There has long been an affinity between the legal philosophies of the courts of New York and of Connecticut, and also between the mores of the citizens of those neighboring states, which has developed an awareness of the desirability of uniformity in the laws which govern the transactions and relations between the citizens of one of these States with citizens of the other. Although the Connecticut courts as yet have had no occasion to discuss and pass upon the "single publication" rule which has been adopted in New York as recently restated in Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45, 50, the foregoing considerations, coupled with the general policy of the Connecticut courts to shape the law of the State to harmonize with the realities of contemporary life, convince me that a Connecticut court if confronted with this case would adopt the "single publication rule". It would hold, I think, that the complaint purported to state at most three torts: one growing out of the publication in Life, one out of that in Readers Digest and the other out of the W O R broadcast; and that on each the Statute of Limitations began to run "when the finished product (was) released by the publisher for sale in accord with trade practice", as stated in the Gregoire opinion. cf. Mattox v. News Syndicate Co., 2 Cir., 176 F.2d 897, 12 A.L.R.2d 988.

But when it comes to determine the State, the law of which shall govern a case such as this of libel published in many states, there appear to be no cases in Connecticut, or New York, or indeed in other jurisdictions where the single publication rule prevails, which lay down an authoritative conflict of laws rule of general application or which even discuss the underlying problem. However, the subject-matter has had some discussion in the law reviews. See 60 Harv.L.R. 941; 62 do. 1041; 63 do., 1272; 48 Col.L.R. 932. As the note just cited from the Columbia Review convincingly demonstrates, the "single publication" rule fails to achieve its major objective as a needed development of the substantive law if in practice it is tied to a multiple-publication, conflict-of-laws rule. The terrifying babel of media having publications of nation-wide and international scope urgently requires the development of a conflict of laws rule which shall provide the certainty so essential for the protection of the public, an ease of application which is so helpful to judicial administration and without which justice through litigation becomes for many an unattainable luxury, and an intrinsic realism whereby the existence and incidents of a libel may be determined by the law of the place in which generally, more often than not, the libel will have done the most harm. The law of the plaintiff's domicil, I think, best meets these and any other pertinent requirements. Acting vicariously, as it were, for the Connecticut Courts I hold the Connecticut conflict of laws rule to be that the law of plaintiff's domicil is the law to be applied to a multi-state libel which has been communicated in the state of plaintiff's domicil as well as in other jurisdictions.

Such a rule is not in essential conflict with traditional concepts. The Restatement of Conflicts of Laws in speaking of harm to the reputation says the place of the wrong is where the defamatory statement is communicated. Sec. 377, Par. 5. In so stating, the reporter did not appear to have in mind a multi-state publication. But illustration No. 7, immediately following Par. 5 of Sec. 377, expressly deals with a publication in two states and locates the place of wrong in that jurisdiction in which the plaintiff was well and favorably known. It is merely one more step in the development of the rule to say that in cases of publication occurring in several states in which plaintiff is well and favorably known, the law of the State of his domicil shall control because the most reasonable inference is that there he is better known than elsewhere. From the standpoint of tradition this development of the conflict of laws rule is no more radical than the development of the single-publication rule.

After all, a plaintiff's repute is his character and personality in the eyes of others. It thus comprises myriad relationships in all of which the plaintiff's individuality is the focus. Thus viewed, the concept of repute, even though not involving legal relationships, is akin to the concept of status which traditionally is determined by the law of the domicil. The same compelling reasons for applying the law of the domicil to the determination of one's status require that the law of the domicil should determine one's right to his good repute: in cases of multi-state libel generally the greatest harm to repute will occur in the state of domicil.

Of course the artificial rule whereby a corporation is deemed to be domiciled in the state of its incorporation irrespective of the places of its greater activities may at times create situations in which there is substantially less harm to the corporate business by libelous publication in the state of incorporation than by publications occurring where it is more active. For this reason perhaps something could be said for a rule fixing the location of the harm to a corporation in the state of its principal office rather than its domicil. If such were the rule here, the same result would obtain: the plaintiff here is a Connecticut corporation having its principal place of business in Connecticut. However, in my opinion the certainty of domicil and its use generally to locate the law which governs many corporate relationships, commends a rule whereby the law of plaintiff's corporate domicil shall govern also questions relating to harm to its repute.

It may seem arbitrary to apply the law of the domicil when plaintiff has done business and is well known in half a dozen other states, as appears to be the case here. But so far as that goes, the rule fixing corporate domicil in the state of incorporation is itself highly artificial and often unrealistic in its application. And after all, it is a frequent occurrence in litigations involving corporations for a court to turn from the law of the forum to the law of domicil for the determination of many questions relating to corporate relationships. It is no more arbitrary to look to the law of the domicil to determine questions involving the substance of injuries to one's right to his good repute. The certainty of the rule and its ease of application amply compensate for any artificiality in its occasional incidence.

If it should seem at first glance that the rule is without reasonable relation to the subject-matter, reflection will demonstrate that no other rule — at least no other uniform rule — more reasonably related could be devised. The Gregoire case fixes as the time when the multi-state libel arises as that "when the finished product is released by the publisher for sale in accord with trade practice." If we were to adopt the rule that the place of wrong is the place where the product was released, etc., as likely as not it might be that the place of release was not only difficult to determine but also some place completely unrelated to plaintiff's injury. For example, under the stipulation here, the "release" of the Life issue might be found to have occurred in Illinois or California where plaintiff was not known at all.

In addition to its simplicity, certainty and ease of application the rule of...

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  • Insull v. New York World-Telegram Corporation
    • United States
    • U.S. District Court — Northern District of Illinois
    • April 8, 1959
    ...the state of which the plaintiff is a domiciliary should control on the substantive issues in multi-state libel (Dale System, Inc. v. Time, Inc., D.C.Conn.1953, 116 F.Supp. 527; cf. Beauharnais v. Pittsburgh Courier Pub. Co., Inc., 7 Cir., 1957, 243 F.2d 705), and by others that the law of ......
  • Oil, Chemical and Atomic Workers, International Union v. Mobil Oil Corporation
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    ...easily disrupt the management of labor relations and would create unjustifiable uncertainties in the law. Cf. Dale System, Inc. v. Time, Inc., 116 F.Supp. 527 (D.C.Conn. 1953); A. Von Mehren & D. Trautman, The Law of Multistate Problems 395 (1965). I would hold, therefore, that a uniform ru......
  • Buckley v. New York Post Corporation
    • United States
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    ...late Judge Hincks in predicting that the courts of Connecticut will ultimately adopt the single-publication rule, Dale System v. Time, Inc., 116 F.Supp. 527, 529 (D.Conn.1953); Fouts v. Fawcett Publications, Inc., 116 F.Supp. 535, 536 (D.Conn.1953), we do not accept the conclusion defendant......
  • Hazlitt v. Fawcett Publications
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    ...count separately. First Count The first count states a claim for libel based on a multi-state publication. As in Dale System, Inc. v. Time, Inc., D.C.Conn., 116 F.Supp. 527 and in Fouts v. Fawcett Publications, Inc., D.C. Conn., 116 F.Supp. 535. I hold that a Connecticut court in such a cas......
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    ...Music Corp. v. American Tobacco Co., 70 N.E.2d 401 (N.Y. App. 1946) (holding no special damage required). Cf. Dale System v. Time, Inc., 116 F. Supp. 527 (D. Conn. 1953) (reading Advance Music Corp. as maintaining special damage, but relaxing strict common-law (167.) See Lucci v. Engel, 73 ......

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