Kilian v. Stackpole Sons

Decision Date15 June 1951
Docket NumberNo. 3096.,3096.
Citation98 F. Supp. 500
CourtU.S. District Court — Middle District of Pennsylvania

Lewis Weinstock, of Conlen, LaBrum & Beechwood, Philadelphia, Pa., A. K. Shipe, Washington, D. C., W. E. Shissler, Harrisburg, Pa., for plaintiff.

William S. Bailey, John J. Schatt, Harrisburg, Pa., for defendant.

MURPHY, District Judge.

Plaintiff, of Michigan, sued defendant, a Pennsylvania publisher, for libel. The verdict of the jury was in favor of defendant. Plaintiff seeks a new trial.1 As required, we view all facts and inferences reasonably deducible therefrom most favorable to the defendant. Rice v. Bauer, 359 Pa. 544 at page 547, 59 A.2d 885; Van Sant v. American Express Co., 3 Cir., 169 F.2d 355, 365.

Since we have only diversity jurisdiction, Pennsylvania law, including its Conflicts of Law rule, determines the substantive rights of the parties. Hartmann v. Time, Inc., 3 Cir., 166 F.2d 127, 1 A.L.R. 2d 370, c.d. Id., 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908.2

A case involving later editions of the book in controversy by another publisher was brought in the State courts. The jury found for defendant; an appeal was taken. In order to have the light afforded by an opinion of the Supreme Court of Pennsylvania, we delayed disposition of plaintiff's motion. The judgment was reversed and a new trial awarded. The original opinion was later modified as to privilege. Since the alleged libelous material is there spelled out at length, we will not repeat it here. See Kilian v. Doubleday & Co., 367 Pa. 117, 79 A.2d 657.

Involved is a book, "The Purple Testament — Life Stories by Disabled Veterans", a series of stories by fifty-three disabled veterans written as English themes while in attendance on an English course conducted by one Don M. Wolfe in a government-sponsored rehabilitation school. One of the stories, "Justice, Lichfield Style" by Joseph M. O'Connell, purports to be an account of his observations and reactions resulting from an alleged over-night visit to the United States Army 10th Replacement Depot, at Litchfield, England, while the plaintiff was the commanding officer. Actually O'Connell, a Normandy battle casualty, was confined at the 312th Station Hospital, 12 miles away, and never did in fact visit the depot. On the contrary, his story was based upon hearsay, a study of plaintiff's picture, and O'Connell's imagination.

Plaintiff, insisting that O'Connell's alleged facts and his comment thereon were libelous, charged defendant with having caused the book to be printed at Harrisburg, in this district, in January 1947, and thereafter to be distributed and circulated throughout the United States and elsewhere.

Defendant made no pre-trial motion to attack the complaint, nor to fix the situs of the alleged tort or torts. In its answer it did not plead truth as a defense but denied falsity and in addition plead (a) that plaintiff stated no cause of action upon which relief might be granted; (b) that it had received no commission from sales and was the printer only; (c) privilege and fair comment; (d) the Pennsylvania one year-statute of limitations.3

In response to a request from Wolfe as editor, defendant caused 2000 copies of the book and accompanying jackets to be printed, and to facilitate getting the book to reviewers and receiving a favorable response, as well as to promote the sale and circulation thereof, permitted its name to appear thereon — on the back of the dust jacket, the inside flap thereof, the back of the book, and at the bottom of the title page — places usually reserved for the publisher's name.

Defendant also caused the printing and mailing of advertising circulars prepared by Wolfe, and, upon receipt of instructions from Wolfe, when the book was ready for distribution, caused copies of the book to be sent to various individuals, reviewers, periodicals and booksellers throughout the United States. The actual printing, binding, mailing and shipping was done by The Telegraph Press, a separate entity, upon defendant's request.

A flat rate was charged and paid for the printing and binding; no charge for the mailing and shipping except reimbursement for the actual costs involved. Defendant did not participate in the commissions or other income, if any, realized from sales of the book. A legend setting forth this fact was prominently displayed in the book itself.

The edition was completed November 19, 1946; circulation and distribution to the usual bookselling channels followed immediately. Prior to December 9, 1946, 339 copies had been shipped to various parts of the United States. All but 68 copies of the 2000 in all were shipped by March 12, 1947.

Everyone who requests, procures or commands another to publish a libel is prima facie answerable. Wills v. Hardcastle, 19 Pa.Super 525; cf. Runkle v. Meyer, 3 Yeates, Pa., 518, 519; Albi v. Street & Smith Publications, Inc., 9 Cir., 140 F.2d 310, 313; Restatement, Torts, § 577, comment f. "There is an intent to publish * * * when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated * * *. It is immaterial that the publisher does not intend to defame the other and has no knowledge that the communication is or can be understood as defamatory." Id., comment k. Merchants' Ins. Co. of Newark, N. J., v. Buckner, 6 Cir., 98 F. 222, 230-231; Gulf Refining Co. v. Morgan, 4 Cir., 61 F.2d 80, 82; Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265, 266; Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 63, 64, 126 N.E. 260, 262, 10 A.L.R. 662. The test is that of the "reasonable man". Restatement, Torts, § 577, comment m.

At common law each time a libelous article was brought to the attention of a third person a new publication occurred and each publication gave rise to a separate cause of action. This is still the law in many jurisdictions.4 That rule originated in an era which long antedated the modern process of mass publication and nation-wide distribution of printed information. It gave scant heed to the public policy which underlies the statute of limitations long regarded as "statutes of repose" designed to outlaw stale claims. Guaranty Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 82 L.Ed. 1224; Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628. Recognizing that radical changes have been brought about by modern methods of disseminating printed matter and desiring to avoid multiplicity of suits and to give effect to statutes of limitations, within recent years many cases have ruled that publication of defamatory matter in a single issue of a newspaper or of a magazine, although such publication consists of thousands of copies widely distributed, is in legal effect one publication which gives rise to but one cause of action and that the applicable statute of limitations runs from the date of that publication. See e. g., Wolfson v. Syracuse Newspapers, Inc., 254 App.Div. 211, 4 N.Y.S.2d 640, affirmed 279 N.Y. 716, 18 N.E.2d 676; Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 43, 92 So. 193, 37 A.L.R. 898.

In Hartmann v. Time, Inc., supra, 166 F.2d at page 134, the Court of Appeals concluded after an examination of the Pennsylvania cases available — none of them precisely in point — "that the courts of Pennsylvania would follow the Alabama and New York rule of one issue constituting a single publication and a single libel; in short, * * * the `single publication' rule." That the "rule, is the preferable one and is recommended both by logic and by public policy." That "Public policy must regard the freedom of the press and while the law must exact penalties for libel the instruments of free and effective expression, newspapers and magazines which are published on a nation-wide basis, should not be subjected to the harassment of repeated law suits."

In Gregoire v. G. P. Putnam's Sons, Books, Inc., 1948, 298 N.Y. 119, 81 N.E.2d 45 at page 48, the single publication rule was extended in New York to include books. The New York Court of Appeals found the reasons underlying the statutes of limitations as compelling when applied to modern dissemination of printings or impressions of a book as when applied to cases involving newspapers or magazines; that, otherwise, the statute of limitations as to an edition of a book could go on ad infinitum. In accord as to books, see Wolfson v. Syracuse Newspapers, Inc., 4 N.Y.S. at page 642. Said the court in Gregoire v. G. P. Putnam's Sons, Books, Inc., supra, 81 N.E.2d at page 49, "Although it may not be said that the publication and dissemination of books has reached that degree of mass production and widespread distribution now prevalent in fields invaded by newspapers and periodicals, it is our view that the publication of a libelous book, involving styling, printing, binding and those other acts which enable a publisher on a given date to release to the public thousands of copies of a single printing or impression, affords the one libeled a legal basis for only one cause of action which arises when the finished product is released by the publisher for sale in accord with trade practice."

The precise decision was that the statute of limitations began to run from the date of the initial publication. See Mattox v. News Syndicate Co., Inc., 2 Cir., 176 F.2d 897 at page 905, 12 A.L.R.2d 988. Cf. Hartmann v. Time, Inc., 64 F.Supp. 671 at page 679, "the cause of action accrues, for the purpose of the statute of limitations, upon the first publication, when the issue goes into circulation generally." Hartmann v. Time, supra, 166 F.2d at page 135.5 In a single publication state, additional shipments would not create a new cause of action or stop the running of the statute of limitations. Id. See Note 1 A.L.R.2d 384, 48 Col.L.Rev. 475; Id. 932; 97 U. of P. L.Rev. 291; 27...

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