Tocco v. Time, Inc.

• Citation: 195 F. Supp. 410
• Decision Date: 22 June 1961
• Docket Number: Civ. A. No. 19864-19867.
• Parties: Onofrio TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant. Paul Joseph TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant. Peter TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant. Philip J. TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

195 F. Supp. 410

Onofrio TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant.

Paul Joseph TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant.

Peter TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant.

Philip J. TOCCO, Plaintiff, v. TIME, INC., a New York corporation, Defendant.

Civ. A. Nos. 19864-19867.

United States District Court E. D. Michigan, S. D.

June 22, 1961.

Philip J. Tocco, Wyandotte, Mich., for plaintiffs.

Selden S. Dickinson, R. William Rogers, Detroit, Mich., Harold R. Medina, Jr., New York City, of counsel, for defendant.

LEVIN, Chief Judge.

These four actions, which have been consolidated for hearing, are based upon the publication of material alleged to be libelous. A motion by the defendant for summary judgment is granted for the reasons here set out.

The alleged libel consisted of a reproduction in the February 23, 1959, issue of Life Magazine of a map picturing certain familial relationships which had originally been attached as an exhibit to the record of the hearings before the United States Senate's Select Committee on Improper Activities in the Labor or Management Field (the so-called McClellan Committee). Two of the plaintiffs were named in the map; the other two plaintiffs are members of their immediate family. The plaintiffs claim that in the context of the Life Magazine article, which was entitled "The Hoodlum Network," the public might assume that the individuals shown on the family map and their close relatives were "racketeering relatives." Jurisdiction is properly based upon diversity of citizenship.

The Michigan statute of limitations, 20 M.S.A. § 27.605, Comp.Laws 1948, § 609.13, the governing statute. Home Life Insurance Co. v. Elwell, 1897, 111 Mich. 689, 70 N.W. 334, and Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L.Ed. 1477, provides that a libel action must be brought within one year "* * * from the time the cause of action accrues and not afterwards." The actions were filed on February 19, 1960. The defendant claims that the actions accrued on or before February 18, 1959, and, in support, submitted affidavits disclosing the following uncontroverted facts: Life Magazine's articles are composed and edited by its employees in New York City. Thereafter, the contents are sent to Chicago, where plates are produced by R. H. Donnelley & Sons Company. One set of plates is utilized by that company to print copies of the magazine in Chicago, and another set is sent to Cuneo Eastern Press, Inc. in Philadelphia to print copies in that city. A third set of plates is cast by Pacific Press, Inc. in Los Angeles from a set of moulds and shells made by Donnelley. Pacific Press, Inc. prints the magazine for distribution to the western area of the country.

Plates for the issue of Life Magazine bearing the cover date of February 23, 1959, were made in Chicago on Sunday, February 15. On that day, a set of plates was shipped to the printers in Philadelphia, and a set of moulds and shells was flown to Pacific Press, Inc. in Los Angeles. Actual printing of the February 23 issue was commenced in Chicago on February 15, in the other two cities on February 16.

Beginning on February 16, subscription copies were mailed directly from the printers in the three cities, and magazines destined for newsstand distribution were transported by truck, air, and railway express to local distributors, who deliver the copies to the various retail outlets. By Wednesday, February 18, a substantial number of copies were on sale at newsstands in New York, Philadelphia, Boston, Cleveland, and Washington, D. C., as well as other cities. Approximately 16,000 copies were received in Detroit on that day for retail distribution. Deliveries in the Detroit area were made to two railroad terminal newsstands on Wednesday, February 18, and the remaining copies were placed on newsstands on the following day.

An action for libel "accrues" when the allegedly defamatory matter is "published." Ogden v. Association of United States Army, D.C.D.C.1959, 177 F.Supp. 498. The entire distribution of the allegedly libelous article may be viewed as one over-all "publication," resulting in a single cause of action, or the printing and sale of each copy could be considered a separate "publication," resulting in a multitude of causes of action, some of which are not barred by the one-year statute of limitations. The former concept, establishing a single cause of action, is known as the "single publication" rule, the latter, the "multiple publication" rule.

Although sometimes designated the common law rule, the "multiple publication" doctrine was first set forth in a civil libel case¹ in Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng.Rep. 75 (1849). In that action, a single sale of a newspaper from the offices of the defendant to an agent of the plaintiff seventeen years subsequent to the date of issuance of the newspaper was held to be a "publication," thereby precluding the barring of the action under the prevailing six-year statute of limitations. No rationale was given for the holding, and, indeed, the only raison d'être for the rule, apart from historical reasons, is that it prevents a malicious publisher from printing a minimum number of copies of a defamatory matter to allow the statute of limitations to commence, withholding the bulk until the statute has run its course, and then continuing his calumnious activity with immunity. Winrod v. McFadden Publications, Inc., D.C.N.D.Ill. 1945, 62 F.Supp. 249.² This justification, which might be realistic only in the publication of books, allows the most remote and bizarre possibility to fashion an artificial and burdensome doctrine, for it is evident that, under modern conditions of mass production and nation-wide distribution of newspapers, periodicals, and books, the "multiple publication" doctrine would, in effect, destroy the statute of limitations as a statute of repose.³

To counter the obvious inequities of the "multiple publication" doctrine, some courts fashioned the "single publication" rule, which prevents the indefinite tolling of the statute of limitations by permitting only one separate action against each author or publisher of a particular newspaper, periodical, or book. Prosser, "Interstate Publication," 51 Mich.Law Rev. 959, 963 (1953); Gregoire v. G. P. Putnam's Sons, 1948, 298 N.Y. 119, 81 N.E. 2d 45. While a relatively small number of courts have had an opportunity to consider the merits of the "publication" doctrines, the trend of the decisions favors the "single publication" concept. In addition, seven states, as of November 1, 1960, have enacted the "Uniform Single Publication Act," which allows only one cause of action for libel upon a single edition of a newspaper, magazine, or book. 9C Uniform Laws Annotated, p. 171 (1960 Cum.Part p. 69).

No reported Michigan decision has considered the merits of the respective doctrines. A Michigan statute, 21 M.S.A. § 27.1374, Comp.Laws 1948, § 620.24, allows a defendant in a libel action to introduce in evidence the fact that the plaintiff previously recovered damages upon a libel substantially similar to that present before the court, but no reported case has interpreted this statute. It was held in Goodrow v. New York Times Co., 1934, 241 App.Div. 190, 271 N.Y.S. 855, affirmed 1935, 266 N.Y. 531, 195 N.E. 186, that a comparable provision, New York Civil Practice Act, § 338-a, referred to the introduction in evidence of judgments received in suits against other periodicals for publication of a similar libelous article. The New York statute did not preclude adoption in that state of...