O'REILLY v. Curtis Pub. Co., 7233.

• Decision Date: 12 February 1940
• Docket Number: No. 7233.,7233.
• Citation: 31 F. Supp. 364
• Parties: O'REILLY v. CURTIS PUB. CO.
• Court: U.S. District Court — District of Massachusetts

31 F. Supp. 364

O'REILLY v. CURTIS PUB. CO.

No. 7233.

District Court, D. Massachusetts.

February 12, 1940.

Dangel & Sherry, of Boston, Mass., for plaintiff.

John L. Hall, Choate, Hall & Stewart, Maxwell E. Foster, Stuart C. Rand, and John M. Hall, all of Boston, Mass., for defendant.

BREWSTER, District Judge.

This case is before the court on defendant's amended answer in abatement.

It has appeared that the plaintiff, a citizen of Rhode Island, brought an action against the Curtis Publishing Company, a Delaware corporation, in which he charges the defendant with the publication in Massachusetts of libelous matter contained in a serial story running in the Saturday Evening Post. A few months later he brought the above entitled action charging the same defendant with the publication, in thirty-eight states other than Massachusetts, of the same matter in the same issue of the Saturday Evening Post. In the second suit punitive, or exemplary, damages are claimed. The recovery of such damages is not permitted in Massachusetts, both under the common law and under the statute. Mass. G.L. (Ter.Ed.) c. 231, sec. 93. In the first action such damages are not claimed. Both actions were brought in the State court and duly removed to this court.

One ground asserted for abating the action is the pendency of the prior action. It is settled law that the pendency of a prior action, in a court of competent jurisdiction, between the same parties, predicated upon the same cause of action and growing out of the same transaction, and in which identical relief is sought, constitutes good ground for abatement of the later suit. Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666; United States v. Haytian Republic, 154 U.S. 118, 14 S.Ct. 992, 38 L.Ed. 930; Shore v. United States, 7 Cir., 282 F. 857.

It is also settled that a defendant has a right to demand of a plaintiff that he present to the court in one action all the grounds upon which he expects a judgment in his favor, unless the grounds are distinct causes of action which would "authorize by itself independent relief, to be presented in a single suit." Stark v. Starr, 94 U.S. 477, 485, 24 L.Ed. 276; Urquhart v. American Dyewood Company, 3 Cir., 78 F.2d 866; Guettel v. United States, 8 Cir., 95 F.2d 229, 231, 118 A.L.R. 1060.

Compare — National Fire Ins. Co. v. Hughes, 189 N.Y. 84, 81 N.E. 562, 12 L. R.A.,N.S., 907; Baltimore Steamship Co. v. Phillips, 273 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069.

In the case at bar the parties are identical, and while the same libel is charged in both actions the causes of action alleged in the second suit must be deemed separate and distinct from those alleged in the earlier one. The publication in each of the thirty-eight states gives rise to separate causes of action. The...