Winrod v. McFadden Publications

• Decision Date: 17 September 1945
• Docket Number: No. 43 C 867.,43 C 867.
• Citation: 62 F. Supp. 249
• Parties: WINROD v. McFADDEN PUBLICATIONS, Inc.
• Court: U.S. District Court — Northern District of Illinois

62 F. Supp. 249

WINROD v. McFADDEN PUBLICATIONS, Inc.

No. 43 C 867.

District Court, N. D. Illinois, E. D.

September 17, 1945.

Vogel & Bunge, of Chicago, Ill., for plaintiff.

Gann, Secord, Stead & McIntosh, of Chicago, Ill., for defendant.

LA BUY, District Judge.

In plaintiff's libel action the defendant has pleaded the Statute of Limitations and has moved for the entry of summary judgment sustaining the said Statute of Limitations and dismissing plaintiff's suit. In support of this motion for summary judgment, the affidavits of Meyer Dworkin, Irving B. Simon and Robert E. Rothwell have been filed. These affidavits show that the issue of the magazine "Liberty" dated August 8, 1942, which contained the article which is claimed to be a libel upon plaintiff, was on June 29, 1942, delivered to the printer; that said issue of "Liberty" was shipped to various periodical distributors throughout the United States during the period from July 17, 1942, to July 28, 1942; and on July 29, 1942, the said issue was placed on public sale by the news distributing agencies at the various newsstands and other places where the public purchases magazines. The affidavit of Robert E. Rothwell, Traffic Manager of the defendant, sets forth that: "No magazine of said issue was mailed to subscribers after July 28, 1942, with the exception that where a subscriber reported either non-receipt of his copy of said issue or receipt of a copy in a damaged condition, replacement copies were mailed to these subscribers."

This suit was filed on August 4, 1943, and the pertinent Statute is Section 14, Chapter 83, Illinois Revised Statutes, 1943, which provides that actions for slander or libel shall be commenced within one year next after the cause of action accrued.

No counter affidavits have been filed by the plaintiff so the affidavits presented must be taken as true, but no inferences must be read into these affidavits and they must be held strictly to the facts alleged. Under these affidavits it is clear that the August 8, 1942, issue of Liberty Magazine was composed, printed and delivered by the defendant to its subscribers and to the periodical distributors with whom the defendant dealt all before August 4, 1942, and that it was placed on public sale on newsstands on July 29, 1942.

Under the pertinent section of the Limitation Act, the bar arises one year after the cause of action accrues, and the cause of action in libel cases accrues when publication of the libel is made.

In the case of newspapers, periodicals, magazines, tracts, pamphlets and other means of distributing news, facts, fiction or information by printing, mimeographing or writing, there are factors other than the mere writing and mailing of a single communication. In the case of a magazine, periodical or book, it must be composed, printed and distributed and all of these factors are mere steps in the general purpose of presenting and distributing a printed composition to the public for its examination and reading. In such cases the composition, printing and distribution when completed must be taken as the one act of publication. Such is the prevailing weight of authority. United States v. Smith, D.C., 173 F. 227; Means v. Macfadden Publications, Inc., D. C., 25 F.Supp. 993; Cannon v. Time, Inc., D. C., 39 F.Supp. 660; Backus v. Look, Inc., D. C., 39 F.Supp. 662; Fried, Mendelson & Co. v. Edmund Halstead, Ltd., 203 App.Div. 113, 196 N.Y. S. 285; Wolfson v. Syracuse Newspapers, Inc., 254 App.Div. 211, 4 N.Y.S.2d 640.

In Julian v. Kansas City Star Co., 209 Mo. 35, at pages 71, 72, 107 S.W. 496, at page 500, the court said: "We agree with counsel for defendant that the one issue of the newspaper, though it may have been of many thousand copies distributed in many different counties, gave but one cause of action; but to reach that conclusion we must say that there was but one publication. If we should say that the publication in Jackson county was a publication distinct from that in Platte county, then we would have to say that there were more than one publication and more than one cause of action. But there was but one publication — one utterance — and though some of the papers did not reach their destination as soon as others, yet they all emanated from the one act and all constituted but one libel, if libel at all. It is the publication of the libel, not the printing of it, that gives the right of action."

Under this ruling the publication of a libel in a magazine or newspaper cannot be segregated into the component parts of composition, printing and distribution, and each part held to be a different publication of the libel. The same result is arrived at by other courts which hold that if the plaintiff counts upon one particular copy of the newspaper or magazine, that the numerous copies of the magazine are but repetitions of the libelous article. In Galligan v. Sun Printing & Pub. Co., 25 Misc. 355, 54 N.Y. S. 471, at pages 473, 474, the court said: "When a libelous article is republished before the commencement of an action, a separate action cannot be maintained on such republication. The repetition of the publication may be pleaded and shown on the trial and bearing up the malice of the defendant and the extent of the injury and damage to the plaintiff." And the court also said (54 N.Y.S. at page 473): "There seems to be no escape from the conclusion that the plaintiff cannot be permitted to split up the alleged libelous article, or bring a second action thereon." Other courts base their holding on the ground of necessity and convenience, as was said in the dissenting opinion of Judge Rippey in the case of Wolfson v. Syracuse Newspapers, Inc., 279 N.Y. 716, at page 720, 18 N.E.2d 676, at page 678, where the learned Judge says: "The result cannot be affected by the sometimes asserted rule that when a newspaper is printed and put out on sale that constitutes publication as of the date of printing and first distribution as to the whole world and thereby but one cause of action arises. That has been advanced as a rule of convenience and to avoid a multiplicity of actions, especially applicable to newspapers where a large number of copies of a single edition or printing are put out. In such a case, the number of copies issued and the breadth of the circulation is open for consideration on the question of the amount of damages to be awarded. Bigelow v. Sprague, 140 Mass. 425, 427, 5 N.E. 144 145."

Whether the composition, printing and distribution are but one publication; whether the distribution of numerous copies of the same issue give rise to but one cause of action; whether the distribution of numerous copies is but one wrong which cannot be split into several causes of action; or whether the rule be adopted because of convenience in order to avoid multiplicity of actions, the same end result is accomplished. That is that the cause or causes of action accrue on the date of publication. In this case the original publication of the August 8 issue must be held to have taken place not later than July 29, 1942. Any cause of action, therefore, which accrued to the plaintiff by reason of the original publication must be held barred by the Limitation Act. Therefore, there can be no recovery herein for the original publication of the August 8, 1942, issue.

The plaintiff, however, contends that there was a republication of the libelous article, and points to the fact that the complaint alleges in paragraph 5 that the defendant distributed and sold copies of the August 8 issue on the 5th, 6th, 7th and 8th days of August, and for several weeks thereafter by itself and through its agents and employees. The affidavit of Rothwell does not set forth any date as to when the copies referred to in his affidavit were mailed out or delivered after July 28, 1942, so that such mailings or deliveries might well be within the dates alleged in the complaint. Also, there is no statement in any of the affidavits as to whether the defendant mailed out any copies of the August 8 issue to subscribers, if new subscriptions were received within a short time before July 29, 1942, and if it did mail same out...