Gregoire v. G. P. Putnam's Sons

81 N.E.2d 45, 298 N.Y. 119

• Court: New York Court of Appeals
• Decided: July 16, 1948
• Status: Published

Opinions

Lewis, J.

This is a libel action based upon alleged defamatory statements contained in “ Total Espionage ”, a book of which tbe defendant Curt Bless is tbe author and tbe defendants-appellants G. P. Putnam’s Sons and Books, Inc., are tbe publishers.

Tbe appeal is from an order of tbe Appellate Division which reversed a judgment of Special Term dismissing tbe complaint upon the ground that tbe cause of action alleged is barred by tbe one-year Statute of Limitations. (Civ. Prac. Act, § 51, subd. 3.)

In November, 1941, tbe appellants, G. P. Putnam’s Sons and Books, Inc., — to which it will be convenient to refer as Putnam’s — commenced distribution of tbe initial printing of “ Total Espionage ”. Thereafter there were seven additional printings of which the last was printed on December 27, 1943, and was distributed by Putnam’s during a period beginning in March, 1944. Although 6,000 copies of the book were sold in 1941, and 6,300 in 1942, the sales thereafter declined until only 60 copies were sold from stock during the year immediately preceding July 2, 1946.

On the date last mentioned the present action was.commenced in which the plaintiff claims he was subjected to actionable libel when, in June, 1946, Putnam’s sold in the city of New York a single copy of “ Total Espionage ” and between July 2, 1945 and July 2, 1946, at least 20 copies were sold by Putnam’s to various retail book stores in the United States.

Upon this appeal, taken by permission of the Appellate Division (Civ. Prac. Act, § 589, subd. 3, [b]), our inquiry is limited by the following certified question of law: “ Do sales from stock by a book publisher of copies of a book containing libelous material constitute republications'of the libelous matter, so as to give rise to new causes of action within the meaning of Section 51, subdivision 3, of- the Civil Practice Act, where the copies sold are from an impression made and released for wholesale distribution more than one year prior to the dates of such ”

The question invites examination of the trend of decisions which have dealt with the legal consequences in libel actions of proof of belated publications of the defamatory matter in suit. An early case, often cited, of liability carried to extreme is Duke of Brunswick v. Harmer (14 Q. B. 185 [1849]; 117 Eng. Rep. 75). There the plaintiff brought an action based upon a defamatory statement which appeared in an issue of a newspaper published by the defendant seventeen years before the action was brought. Ruling that the defensive plea of a then existing six-year Statute of Limitations was not effective, the court held that the plaintiff’s evidence of a sale and delivery by the defendant to plaintiff’s agent- of a single copy of the newspaper containing the libel — seventeen years after the date of its issue but within the statutory period of six years before the action was commenced — was in law a new publication against which the Statute of Limitations had not run..

The rule of Duke of Brunswick v. Harmer (supra) — that each delivery to a third person of a defamatory article consti tuted a new publication of the libel, wbicli in turn gave rise to a new cause of action — bad its origin in an era which long antedated the modern process of mass publication and nationwide distribution of printed information. That rule also gave scant heed to the public policy which underlies statutes of limitation, long regarded as “ statutes of repose ” designed to outlaw stale claims. (Guaranty Trust Co. v. United States, 304 U. S. 126, 136; Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314; Conklin v. Furman, 48 N. Y. 527, 529; Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287, 302; and see 1 Wood on Limitations [4th ed.], § 4, pp. 7-11.)

There have been occasions in the past when this court has noted that what “ seems vain and capricious to one generation may' become the wisdom of the nest.” (People v. Beakes Dairy Co., 222 N. Y. 416, 428; Klein v. Maravelas, 219 N. Y. 383, 386.) Eecognizing that radical changes have been brought about by modern methods of disseminating printed matter for which there is a widespread demand, and desiring to avoid multiplicity of suits' and to give effect to statutes of limitation, adjudicated cases disclose that within recent years courts of this State and other jurisdictions have ruled that the publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable Statute of Limitation runs from the date of that publication. (Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, affd. 279 N. Y. 716; Hartmann v. Time, Inc., 60 N. Y. S. 2d 209, 210-211, affd. 271 App. Div. 781; Campbell-Johnston v. Liberty Magazine, Inc., 64 N. Y. S. 2d 659, 660, affd. 270 App. Div. 894; Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 43; Forman v. Mississippi Publishers Corp., 195 Miss. 90; Julian v. Kansas City Star Co., 209 Mo. 35, 71, 72; Winrod v. Time, Inc., 78 N. E. 2d 708 [Ill.]; Hartmann v. Time, Inc., 64 F. Supp. 671, 678-680; and see 166 F. 2d 127, 133-134 ; McGlue v. Weekly Publications, Inc., 63 F. Supp. 744; Cannon v. Time, Inc., 39 F. Supp. 660; Backus v. Look, Inc., 39 F. Supp. 662; Means v. MacFadden Publications, Inc., 25 F. Supp. 993.)

The eases last cited make clear the principle of law, now firmly established, that where, by modern methods of mass publication, a single issue of a newspaper or magazine containing libelous matter is released to thousands of readers, the one libeled may bring only one action. Upon the trial of that action evidence of the number of copies sold and the field within which distribution occurred becomes competent as proof of the extent of the injury suffered.

Upon its consideration of the present case the Appellate Division expressed the view (272 App. Div. 591, 592) that although there is case law which points to the adoption in this State of the “ one publication ” rule, that rule does not extend to books, as distinguished from newspapers or magazines. In reaching that conclusion the Appellate Division cited three decisions which, on the facts involved, are distinguishable from the case before us: In Cook v. Conners (215 N. Y. 175), the defendant owned two newspapers — the Buffalo Courier, which published afternoon issues, and the Buffalo which published morning issues. The alleged libel, co'uched in slightly different language, was published by the defendant in each newspaper on different days. In those circumstances the ruling quite properly was that each of the two publications gave rise to a separate cause of action. In Mack, Miller Candle Co. v. Macmillan Co. (239 App. Div. 738, affd. 266 N. Y. 489), the plaintiff’s grievance was a libel appearing in a book which had been “ reissued or republished ” within a period of two years before the action was commenced — that period being then the statutory limitation applicable to a libel action. (See 239 App. Div. 738 at p. 742.) Likewise in Woodhouse v. New York Evening Post, Inc. (201 App. Div. 9), the six libelous articles — not identical in content — were published on six different dates during a period covering two months. It is thus made clear that the facts upon which rested the three decisions last mentioned above, and cited by the Appellate Division, make those decisions inapposite to the problem presented by the question of law certified to us.

If, as the complaint alleges, the book “ Total Espionage ” contained statements by which the plaintiff was defamed, a right of action for libel accrued to him. That right, however, was burdened with the statutory limitation that unless he com menced an action to recover damages for the alleged libel within one year after such an action accrued bis right thereafter to recover would be completely and forever barred for lapse of time. (L. 1936, ch. 327, §§ 1, 2, amdg. Civ. Prac. Act, § 51.)

Although we may not concern ourselves with the wisdom of the Statute of Limitation last cited above (People v. Nebbia, 262 N. Y. 259, 271; Johnson v. City of New York, 274 N. Y. 411, 430), our duty is to give to that statute its intended effect as a statute of repose — designed “to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, have died or disappeared, and evidence has been lost.” (Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314, supra.) The statute (Civ. Prac. Act, § 51, subd. 3) which is controlling here is a declaration of public policy governing the right to litigate; it came into our law .by way of the Legislature, not through the judicial process. “ At times, it may bar the assertion of a just claim. Then its application causes hardship. The Legislature has found that such occasional hardship is outweighed by the advantage of outlawing stale claims.” (Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287, 302, supra.)

Limiting our inquiry to the scope fixed by the question of law certified to us (Bowlby v. McQuail, 240 N. Y. 684, 687) we conclude that the reasons mentioned above, which underly the purpose of Statutes of Limitations, are as compelling when applied to eases involving the modern dissemination of printings or impressions of a book as when applied to cases involving the dissemination of issues of a newspaper or magazine. Otherwise, although a book containing libelous material may have been the product of but one edition or printing fifty years ago, if, by sale from stock or by display, the publisher continues to make unsold copies of the single publication available to the public today, such conduct would amount to a republication of any libel the book contains and thereby would become actionable. Under such a rule the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the Legislature, clearly expressed in section 2 of chapter 327 of the Laws of 1936 — to bar “ completely and forever ” all actions which, as to the time of tlieir commencement, overpass the limitation there prescribed upon litigation.

Although it may not he 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.

In the circumstances set forth in the question of law certified to us we conclude that the bar of the Statute of Limitation (Civ. Prac. Act, § 51, subd. 3) cannot be lifted. To do so would disregard the clear purpose which the Legislature has conceived to be outlaw stale claims. “ ‘ The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed ’ ” (Van Beeck v. Sabine Towing Co., 300 U. S. 342, 351).

The order of the Appellate Division should be reversed and the judgment of Special Term affirmed, with costs in this court and in the Appellate Division. The certified question is answered in the negative.