Winrod v. Time, Inc.

• Decision Date: 01 April 1948
• Docket Number: Gen. No. 44107.
• Citation: 334 Ill.App. 59,78 N.E.2d 708
• Parties: WINROD v. TIME, Inc.
• Court: United States Appellate Court of Illinois

334 Ill.App. 59

78 N.E.2d 708

WINROD

v.TIME, Inc.

Gen. No. 44107.

Appellate Court of Illinois, First District, Second Division.

April 1, 1948.

Appeal from Superior Court, Cook County; John M. Tuohy, Judge.

Action by Gerald B. Winrod against Time, Incorporated, a corporation, for alleged libel. From the judgment, plaintiff appeals.

Affirmed.Vogel & Bunge, of Chicago, and Foulston, Siefkin, Schoeppel Bartlett & Power, of Wichita, Kan. (Leslie H. Vogel, George C. Bunge, and Forrest S. Blunk, all of Chicago, of counsel), for appellant.

Kirkland, Fleming, Green, Martin & Ellis, of Chicago (Howard Ellis, J. B. Martineau, and Georges Dapples, all of Chicago, of counsel), for appellee.

FRIEND, Presiding Justice.

Plaintiff brought suit on April 13, 1943, to recover damages for alleged libel printed and published in an issue of defendant's magazine, Life, dated April 13, 1942. Defendant moved to strike the complaint on the ground that although the publication bore the date printed on its cover, it had actually been published at least two days earlier, and hence the action was barred by the one-year Statute of Limitations (Ill.Rev.Stat.1941, chap. 83, par. 14). Attached to defendant's motion were various affidavits from which it appeared, without dispute, that throughout the United States, subscribers to Life received their copies of the April 13, 1942 issue on or prior to April 11, 1942, and that copies of Life scheduled for newsstand sale during that week appeared for sale on newsstands throughout the country by April 11, 1942. The court, after considering the affidavits submitted, allowed the motion to strike, and entered the judgment in favor of defendant from which plaintiff appeals.

Historically each delivery and sale of an article containing defamatory material was considered a publication that, defenses aside, gave rise to a separate cause of action. Duke of Brunswick v. Harmer (1849), 14 Q.B. 185, 117 Eng.Rep. 75; Rex v. Carlisle (K.B.1819), 1 Chit. 451. However, with a few exceptions (Renfro Drug Co. v. Lawson, 1942, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732;Holden v. American News Co., D.C.1943, 52 F.Sup. 24; section 578 b of volume III of the Restatement of the Law of Torts (1938); Newell, The Law of Slander and Libel, 4th Ed. (1924), sec. 192, pp. 236, 237; and Odgers on Libel and Slander, 6th Ed. (1929), pp. 132 et seq.), courts and legal writers have recently recognized that this ancient rule ‘is ill-suited to the needs of a culture demanding mass publication. * * * Hence, to escape multiplicity of suits and to make effective the statute of limitations, publication has been redefined in the light of the realities of this century’ and ‘is now defined so as to include all the steps in the economic process by which news is disseminated. * * * Therefore, the composition, printing, and distribution of libelous material constitute only one cause of action.’ 59 Harvard Law Review, pp. 136, 137. Section 578 b of the Restatement of the Law of Torts defines republication of libel as follows: ‘Each time a libelous article is brought to the attention of a third person, a new publication has occurred, and each publication is a separate tort. Thus, each time a libelous book or paper or magazine is sold, a new publication has taken place which, if the libel is false and unprivileged, will support a separate action for damages against the seller.’ This viewpoint is the subject of comment in the recent case of Hartmann v. Time, Inc., D.C.1946, 64 F.Supp. 671, 679, and because that case, citing substantially all recent decisions, reflects the established authority on the question in this country, we quote therefrom at length. Plaintiff there brought a libel suit in the District Court, Eastern District of Pennsylvania, exactly one year subsequent to the date appearing on the cover of the January 17, 1944 issue of Life magazine. In support of its motion for summary judgment defendant submitted affidavits setting forth facts substantially the same as those alleged in the case at bar relating to composition, editing, publishing, printing and distribution of the magazine. In granting defendant's motion for summary judgment the court, after quoting the pertinent portions of comment b in section 578 of the Restatement of the Law, made the following observation: ‘There is discernable, however, to a marked degree, a reluctance among the modern courts to apply that law when confronted with a controversy involving large distributions of printed matter such as are made by present day newspaper and magazine publishers. This turn in the law is highlighted in the case of Age-Herald Publishing Co. v. Huddleston, 1921, 207 Ala. 40, 92 So. 193, at page 196, 37 A.L.R. 898, where the court said: ‘These old common law principles undoubtedly had their origin in relation to the single acts of individuals, in a primitive society, and cannot, either as a matter of principle or common sense, be applied without qualification to the publication of modern newspapers.’ The rule of law to be applied in such circumstances is that the one issue of a newspaper or magazine, although it consists of thousands of copies widely distributed, gives rise to one cause of action, there being but one publication, and the statute of limitations runs from the date of such publication. The number of copies is considered as aggravating the seriousness of the publication, and therefore, being evidence of the extent of the injury, goes only to the matter of damages. Winrod v. McFadden Publications, Inc., D.C.N.D.Ill.1945, 62 F.Supp. 249, 250;Forman v. Mississippi Publishers Corporation supra [1943, 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469]; Backus v. Look, Inc., D.C.S.D.N.Y., 1941, 39 F.Supp. 662;Cannon v. Time, Inc., D.C.S.D.N.Y.1939, 39 F.Supp. 660;Means v. MacFadden Publications, Inc., D.C.S.D.N.Y.1939, 25 F.Supp. 993;Wolfson v. Syracuse Newspapers, Inc., 1938, 254 App.Div. 211, 4 N.Y.S.2d 640, affirmed per curiam 1939, 279 N.Y. 716, 18 N.E.2d 676;Fried, Mendelson & Co. v. Edmund Halstead, Ltd., 1922, 203 App.Div. 113, 196 N.Y.S. 285; Age-Herald Publishing Co. v. Huddleston, supra; Brian v. Harper supra [1919, 144 La. 585, 80 So. 885]; but see Holden v. American News Co., supra; Renfro Drug Co. v. Lawson, 1942, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732. In Pennsylvania the number of copies is taken into consideration in assessing damages: Chambers v. Philadelphia Inquirer, 1930, 14 Pa.Dist. & Co.R. 421; Reed v. Patriot Co., 1939, 35 Pa.Dist. & Co.R. 466. In Sutherland on Damages (3rd Ed., 1904) Sec. 1207, at page 3490, it is said: ‘All the utterances of the same charge constitute one slander, as all the copies of a newspaper containing a libel constitute one publication. The frequency of the utterances or the number of issues (copies) of a newspaper may be shown to prove the extent of publicity given to the defamatory charge; but only one recovery is allowed.’ Further, it has been held, whenever the question was raised, that the later mailing of miscellaneous copies, such as occurred here, does not amount to an independent ground of action, not being a new publication. Backus v. Look, Inc., supra; Cannon v. Time, Inc., supra; McGill v. Time, Inc., March 23, 1945, decided in the Circuit Court of Cook County, Illinois; Hartmann v. Time, Inc., Sup., 60 N.Y.S.2d 209, decided October 19, 1945; (1945) 59 Harv.L.Rev. 136; see also Murray v. Gilbraith, 1908, 86 Ark. 50, 109 S.W. 1011,126 Am.St.Rep. 1078; but see Winrod v. McFadden Publications, Inc., supra, 62 F.Supp. at page 256. These decisions, while the reasons therefor are variously given by the different courts, are grounded chiefly upon the practical realization that, under the doctrines expounded in the Restatement, a multiplicity of suits would result, and the purpose of the statute of limitations would be avoided. Although all the decisions cited were not rendered without express dissent, the views adopted have, in the main, been favorably commented upon: (1945) 59 Harv.L.Rev. 136; (1940) 38 Mich.L.Rev. 552; (1939) 6 Pitt.L.Rev. 46; (1938) 52 Harv.L.Rev. 167; (1923) 23 Col.L.Rev. 193; (1910) 10 Col.L.Rev. 150. A careful examination of the cases leads to the conclusion that the decided weight of authority in this country is, where large distributions of published matter are involved, that the cause of action accrues, for the purpose of the statute of limitations, upon the first publication, when the issue goes into circulation generally.'

The United States Circuit Court of Appeals (Hartmann v. Time, Inc., 3 Cir., 166 F.2d 127, 134) partially vacated the judgment of the United States District Court in favor of defendant, but for reasons not affording plaintiff here any support. The Hartmann case involved the Full Faith and Credit Clause of the United States Constitution, which is not under consideration here, as well as an alleged libel published in an issue of Life following the January 17, 1944 issue. With reference, however, to the question of individual miscellaneous publications constituting separate causes of action, the United States Circuit Court of Appeals said: ‘We think that the rule enunciated by the court below, the so-called ‘single publication’ rule, is the preferable one and is recommended both by logic and by public policy. 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 laws suits.'

Plaintiff is constrained to admit that under the foregoing rule ‘publication’ of the alleged defamatory matter in this case occurred on April 11, 1942, the date of general release, but he contends that copies of the April 13, 1942, issue of Life were subsequently circulated. Defendant's affidavits admit that after the general release of the magazine was completed...