Fifield v. American Automobile Association

• Decision Date: 16 January 1967
• Docket Number: Civ. No. 616.
• Citation: 262 F. Supp. 253
• Parties: Robert FIFIELD, Plaintiff, v. AMERICAN AUTOMOBILE ASSOCIATION, Defendant.
• Court: U.S. District Court — District of Montana

262 F. Supp. 253

Robert FIFIELD, Plaintiff, v. AMERICAN AUTOMOBILE ASSOCIATION, Defendant.

Civ. No. 616.

United States District Court D. Montana, Billings Division.

January 16, 1967.

Berger, Anderson & Sinclair, Billings, Mont., for plaintiff.

Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Mont., for defendant.

ORDER AND MEMORANDUM OPINION

JAMESON, Chief Judge.

This is a motion to dismiss an action for libel, removed to this court on grounds of diversity. The complaint alleges, inter alia, that the defendant annually prints a volume entitled "Northwestern Tour Book", which lists and rates motels, hotels and eating establishments throughout the northwestern United States. The defendant makes an annual charge to establishments that desire to be rated and listed as members of the defendant association. The rating system used in the 1965-1966 volume, in ascending order, was: (1) Satisfactory, (2) Good, (3) Very Good, (4) Excellent, and (5) Outstanding. The rating system used in the 1966-1967 volume, in ascending order, was: (1) Good, (2) Very Good, (3) Excellent, and (4) Outstanding.

The plaintiff is the lessee and operator of a motel in Livingston, Montana, and was a paid subscriber to the 1965-1966 volume. In that volume, plaintiff's motel was rated as "Very Good". About September 30, 1965, plaintiff informed defendant that he no longer wished to be a member of the association, that he was dissatisfied with defendant's rating system, that he did not desire to be rated in the tour book, and accordingly was not renewing his membership. However, plaintiff's establishment was included in the 1966-1967 tour book, and was given a "Good" rating.

Prior to the 1966-1967 volume, plaintiff had expended $25,000 in remodeling the motel, and now brings suit for libel, because of the lower rating.

Defendant contends that the complaint fails to state a claim upon which relief can be granted because plaintiff did not comply with the requirements of R.C.M. 1947, § 64-207.1, which provides:

"Before any civil action shall be commenced on account of any libelous or defamatory publication in any newspaper, magazine, periodical, radio or television station, the libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous or defamatory matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. * * * The first issue of a newspaper, magazine or periodical published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction. * * *."

Plaintiff contends that (1) this statute is not applicable because the publication in question is not a magazine or periodical; (2) the required notice was in fact given; and (3) under the provisions of Article III, Section 10 of the Montana Constitution, the jury, not the court, determines all questions in a libel suit.¹

Both parties filed briefs, from which it appeared that the tour books would be presented for the court's consideration in determining the motion. Accordingly, pursuant to order entered November 4, 1966, a hearing was held on the motion on November 16, 1966, at which time both parties were given an opportunity to "present all material pertinent to the motion". The two tour books were received in evidence. Oral argument was presented by counsel, and additional briefs were filed subsequent to the hearing.

Since matters "outside the pleading" were "presented to and not excluded by the court", the motion to dismiss, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, is treated as one for summary judgment. Warren v. Lawler, 9 Cir. 1965, 343 F.2d 351; Lone Star Cement Corp. v. F.T.C., 9 Cir. 1964, 339 F.2d 505; International Longshoremen's and Warehousemen's Union v. Kuntz, 9 Cir. 1964, 334 F.2d 165.

It is well settled that summary judgment is proper only where there is no genuine issue of a material fact or where viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. Consolidated Electric Co. v. United States, 9 Cir. 1966, 355 F.2d 437; United States for use and Benefit of Austin v. Western Electric Co., 9 Cir. 1964, 337 F.2d 568; Cameron v. Vancouver Plywood Corp., 9 Cir. 1959, 266 F.2d 535.

The primary question presented by defendant's motion is whether the terms of the statute quoted supra are applicable to a publication such as the "Northwestern Tour Book". The statute requires that notice of defamatory matter be given to any "newspaper, magazine, periodical, radio or television station." Accordingly, it must be determined whether the Court may hold as a matter of law that the volume in question is a magazine² or periodical within the meaning of the statute.

The term "periodical" has been defined in a number of cases, although in different contexts. The leading case is Houghton v. Payne, 1904, 194 U.S. 88, 24 S.Ct. 590, 48 L.Ed. 888, where the Supreme Court defined the term under a postal statute designating such publications as second class mail. The publication involved in that case was a series of paper covered books, consecutively numbered, containing a novel or collection of short stories or poems. In holding that the volumes were books rather than periodicals, the Court stated:

"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature or some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. * *.

"A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding (although this is by no means essential), but in the fact that it ordinarily contains a story, essay, or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. * * * It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical." (194 U.S. at 97-98, 24 S. Ct. at 592).

The same question was considered in Smith v. Hitchcock, 1912, 226 U.S. 53, 33 S.Ct. 6, 57 L.Ed. 119. The volumes in that case were published weekly, and contained a single complete story. The Court again found that the publications were books, and said:

"The noun `periodical,' according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion, if not a promise, of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. * * * The word `book,' also, of course, has its ambiguities, and may have different meanings according to the connection in which it is used. * * * Without attempting a definition, we may say that generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation, and, perhaps, have an appreciable size. There may be exceptions, as there are other instances of books. It hardly would be an exception if, where the object is information and the subject-matter is a changing one, a publication periodically issued, giving information for the time, should be held to fall into the second class. (226 U.S. at 59, 33 S.Ct. at 8).

The definitions in these two cases have been followed in other cases interpreting the meaning of the postal statute. See Dell Publishing Co., Inc. v. Summerfield, D.D.C.1961, 198 F.Supp. 843, 844, where bimonthly paper bound pamphlets of crossword puzzles were held not to be periodicals. All the publications considered under this statute were issued at least quarterly, since formal compliance with the statue requires that the matter be published at least four times per year.³

Under other types of statutes, courts have reached different conclusions with respect to the definition of "periodicals". In Schmidt v. United States, S.D.N.Y. 1892, 150 Fed. 238, the court found that serial stories, issued weekly, were periodicals within the purview of the Tariff Act of March 3, 1883, even if all the serials, when bound together, would constitute a book. However, in Moody's Investors Service v. McGoldrick, 280 N.Y. 581, 20 N.E.2d 25, the court held that pamphlets issued biweekly containing current information regarding dividends, financial reports and the like, which were consolidated into a bound reference manual annually, were not periodicals under a local tax statute.

Under the Federal Copyright laws, a monthly magazine of cartoons was held to be a periodical (Application of Wings Pub. Co., Inc., 1945, 148 F.2d 214, 32 C.C.P.A. 926), while collections of song sheets were held not to constitute periodicals under a New York City licensing ordinance. (People v. Samuels, N.Y.Sp. Sess., 1941, 28 N.Y.S.2d 113). The New York Court of Appeals in Business Statistics Organization, Inc. v. Joseph, 1949, 299 N.Y. 443, 87 N.E.2d 505, defined "periodical" as follows:

"Newspapers, magazines and periodicals are all vehicles for the transmission of news, opinions, ideas, information and literature. They have the

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