Hazlitt v. Fawcett Publications

• Decision Date: 04 November 1953
• Docket Number: Civ. A. No. 3685.
• Citation: 116 F. Supp. 538
• Court: U.S. District Court — District of Connecticut
• Parties: HAZLITT v. FAWCETT PUBLICATIONS, Inc.

116 F. Supp. 538

HAZLITT v. FAWCETT PUBLICATIONS, Inc.

Civ. A. No. 3685.

United States District Court D. Connecticut.

November 4, 1953.

Charles R. Covert, Bridgeport, Conn., Halford W. Park, Jr., Orson L. St. John, Greenwich, Conn., for plaintiff.

Cummings & Lockwood, Stamford, Conn., for defendant.

HINCKS, Chief Judge.

This action was originally based upon a claimed libel in a story published in the May 1950 issue of defendant's magazine "Startling Detective." The plaintiff, a citizen of Oklahoma, brought his action to the Superior Court for Fairfield County on February 29, 1952, and the defendant, a Connecticut Corporation removed the case to this court. The complaint now contains two counts, this court having on January 19, 1953, granted plaintiff's motion to add the second count. Defendant answered the first count, which is for libel, and has moved for summary judgment on its second affirmative defense, the statute of limitations. Defendant also has moved, prior to answer, to dismiss the second count, which alleges invasion of plaintiff's right of privacy. The record referable to the first count contains three lengthy sets of interrogatories to defendant, the deposition of the plaintiff, and a number of affidavits. I shall discuss each 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 case as this would look to the law of plaintiff's domicile which, in this case, is Oklahoma, for definition of the applicable law. And finding no judicial or statutory announcements of the law of Oklahoma on the point, I apply the reasoning used in Dale System, Inc. v. Time, Inc., supra, and Fouts v. Fawcett Publications, Inc., supra, and hold that in the contemporary scene a court of Oklahoma, if confronted with these problems, would apply the law of Oklahoma, the plaintiff's domicile, and would adopt the modern single-publication rule with the test of accrual stated in the leading case of Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45.

Such being the applicable law, the relevant facts are as follows: There was one printing, totalling 327,958 copies, of the May, 1950, issue of "Startling Detective" (hereinafter referred to as "the magazine"). This printing was completed and the last copy ready for distribution by February 4, 1950. Shipment of the magazine to wholesale distributors and mailing to subscribers was completed by February 17, 1950 (except for replacement of damaged or lost copies). The "scheduled release date" for this May issue was February 24, 1950, and on this date the magazine went on sale at news-stands nationally. The "off-sale" date of the magazine was April 28, 1950. Until the off-sale date wholesale distributors, under contract with defendant, were required to push sales and to re-supply dealers who had sold out. On February 18, 1950, there remained in defendant's possession 3,400 copies of the May, 1950, issue. Plaintiff's Second Additional Interrogatory 14 asked whether defendant shipped additional copies of the magazine after February 17, 1950, to resupply dealers who had sold out prior to the next publication date. In answer, defendant stated that some of these 3,400 copies were distributed subsequently to replace copies lost or damaged in the initial distribution. This answer is equivocal, and therefore I for purposes of the present motions assume the answer to be "yes". The assumption is borne out by the following reasoning by plaintiff. The total audited circulation in the United States and Canada was 326,205; 324,558 copies including 1090 copies apparently not circulated in the United States or Canada, were shipped prior to February 18, 1950. Therefore some 2,737 copies included in the audit were shipped after February 17, 1950. It being unlikely that both damaged and replacement copies would be included in the audit, plaintiff concludes that the 2,737 copies must have been distributed by defendant after February 17, 1950.

Even accepting the above reasoning, which contains some questionable assumptions, a finding would be required that there was but a single publication of the magazine and that it occurred on February 24, 1950, at the latest. Dale System, Inc., v. Time, Inc., supra; Fouts v. Fawcett Publications, Inc., supra. Assuming that defendant distributed 2,738 copies even after February 28, this would amount to but 0.8% of the entire printing. Clearly this amount would be insignificant dribble after the initial impact. The courts applying the single publication rule have uniformly held that such incidental distribution will not retard the accrual of the cause of action. Gregoire v. G. P. Putnam's Sons, supra; Means v. MacFadden Publications, D.C. S.D.N.Y.1939, 25 F.Supp. 993, 995; Winrod v. Time, Inc., 334 Ill.App. 59, 78 N.E. 2d 708, 710, leave to appeal denied, 1948, 336 Ill.App. XIV; Cannon v. Time, Inc., D.C.S.D.N.Y.1939, 39 F.Supp. 660, 661; Backus v. Look, Inc., D.C.1941, 39 F. Supp. 662, 663; McGlue v. Weekly Publications, D.C.Mass.1946, 63 F.Supp. 744; Polchlopek v. American News Co., D.C. Mass.1947, 73 F.Supp. 309, 310. In this case, as in Fouts v. Fawcett Publications, Inc., supra, there is no basis for a finding of a later republication.

Turning now to correlate this finding with the applicable Connecticut Statute of Limitations, I note that at the time of the allegedly libelous publication plaintiff had three years within which to commence an action for libel. Section 8316, Conn.Gen.Stats., 1949. About a year and three months later, on June 6, 1951, a bill shortening the time for the limitation of defamation actions to two years was passed by the Connecticut legislature. It was signed by the Governor on July 9, 1951. Pursuant to the general provisions of Section 8891, Conn.Gen. Stats., 1949, the act became effective on October 1, 1951. That act now appears as Section 1394b of the 1951 Supplement to the Connecticut General Statutes. Plaintiff brought this action within the three-year period of the statute originally applicable but some five months after the effective date of the new statute, and four days after the two-year period had run. Thus two problems are presented: (1) Was the new statute intended to have retroactive effect on existing claims not yet sued on, and (2) if so, is it invalid as to such claims because a reasonable time was not allowed within which to bring suit on existing claims?

As to the first point, I think there is little doubt that the Connecticut Statute of 1951 was intended to have retroactive effect. Fitzgerald v. Scovil Mfg. Co., 77 Conn. 528, 60 A. 132; Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 62 A.2d 771. I so hold. In this connection it is perhaps worth noting that in Toletti v. Bidizcki, 118 Conn. 531, 173 A. 223, a Connecticut court interpreted a statute making a procedural change only to have retroactive effect even as to a pending action actually in court when the statute became effective.

Whether the statute, interpreted to have a retroactive effect, was constitutional, is a closer question. In Fitzgerald v. Scovil Mfg. Co., supra 77 Conn. 528, 60 A. 133, the court appeared to take as the applicable test the fact that in that particular case, "a reasonable time, taking all the circumstances into consideration, was given for the commencement of suit before the bar took effect." And that question was treated as a question of law for the court. See also Chase Securities Corp. v. Donaldson, 325 U.S. 304, 317, 65 S.Ct. 1137, 89 L.Ed. 1628; Conwell v. Central Mo. Tel. Co., D.C.W.D. Mo.1948, 76 F.Supp. 398.

In the Fitzgerald case the limitation carried by the new statute was such that the plaintiff had six months in which to bring suit after the bar of the new statute became effective. Here, since the action accrued on or before February 24, 1950, the new statute left the plaintiff but four months for institution of suit before its bar became effective. However, the Fitzgerald opinion in deciding the question of reasonable time appears to have taken into account the time intervening after the enactment of the new statute and before its effective date; in that case the statute had been enacted eighteen months before its effective date and indeed ante-dated the accrual of the plaintiff's claim. Here the new statute was enacted about sixteen months after plaintiff's claim accrued, but only about three months before its effective date, and about seven months before this particular count would be thereby barred. Thus it is plain that, on the issue of reasonable time, the case here is stronger for the plaintiff than the Fitzgerald case.

It should be noted that the prevailing rule elsewhere treats as controlling the reasonableness of time between the passage of the statute and its effective date. Mulvey v. City of Boston, 1908, 197 Mass. 178, 83 N.E. 402; Steele v. Gann, 1939, 197 Ark. 480, 123 S.W.2d 520, 120 A.L.R. 754; Kozisek v. Brigham, 1926, 169 Minn. 57, 210 N.W. 622, 49 A.L.R. 1260; Reid v. Solar Corp., D.C.Iowa 1946, 69 F. Supp. 626, 637. Under this test the critical period in this case was only three months (less nine days). As pointed out above, it is not wholly clear from the Fitzgerald opinion whether Connecticut treats the critical period as so limited, or as extended by the time which it left for the particular plaintiff to bring suit which here, as we have seen, was about seven months. But even if under the authentic Connecticut rule the critical period here involved is as short as two months and twenty-one days, it should be noted that a statute leaving to plaintiffs an even shorter period was upheld in Mulvey v. City of Boston, supra, and that statutes leaving three months for suit were upheld in Kozisek v. Brigham, supra, and Steele v. Gann, supra. In...