Morris D. Oberman, Cross-Appellant v. Dun & Bradstreet, Inc., Cross-Appellee

586 F.2d 1173, 4 Media L. Rep. (BNA) 2137

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 17, 1979
• Docket: 77-1896
• Status: Published

Opinions

BAUER, Circuit Judge.

In this diversity suit for alleged libel, the plaintiff, Morris D. Oberman, claims that a confidential credit report issued by Dun & Bradstreet, Inc., understated his assets, and that as a result, the Prudential Realty Company refused to sell or lease certain property to him. At trial, the parties stipulated (1) that Prudential Realty was not a subscriber of Dun & Bradstreet’s credit report service; (2) that Dun & Bradstreet never sent the report on Oberman to Prudential Realty; (3) that the report was mailed to the First National Bank of Skokie, Illinois, a subscriber of Dun & Bradstreet; and (4) that one of Prudential’s salesmen was a director of the bank. After the jury returned a verdict of $35,000 for the plaintiff, the defendant filed a motion for judgment notwithstanding the verdict which was denied by the district court.

The sole issue on appeal is whether Dun & Bradstreet can be held liable for the unauthorized republieation of the allegedly libelous credit report. The question is governed by Illinois law since the case is a diversity action, Porcella v. Time, Inc., 300 F.2d 162 (7th Cir. 1962), but there seems to be only one Illinois decision that is squarely on point. In Clifford v. Cochrane, 10 Ill.App. 570 (1882), the court declared that “no liability attaches to the author of the libel for such reproduction, unless it is made by his authority or consent, either express or implied.” Id. at 577. It appears, then, that under Illinois law, Dun & Bradstreet cannot be held liable since it did not authorize the republication of the confidential report to the non-subscribing realty company. On the contrary, the defendant expressly declared on the face of the report that the credit information was furnished for the exclusive use of the subscriber under the subscription contract.¹

We cannot ignore, however, that the Clifford decision was rendered by an intermediate court nearly one hundred years ago, and that, since then, many states have abandoned the rigid “expressed or implied authorization” rule in favor of a “natural or probable consequence” test. That is, in many jurisdictions, the author of a libelous statement may be held liable for a republieation that is a “natural and probable consequence” of the original publication. See, e. g., Davis v. National Broadcasting Co., 320 F.Supp. 1070, 1072 (E.D.La.1972); Cobb v. Garlington, 193 S.W. 463, 468 (Tex.Civ.App.1970); Weaver v. Beneficial Finance Co., 199 Va. 196, 98 S.E.2d 687 (1957).

Nevertheless, even assuming that the Illinois courts would apply the “natural and probable consequence” standard to the case at hand, we find nothing in the record to suggest that the republication of the Dun & Bradstreet report followed in the ordinary course of events from the original publication. Nor can we agree that, on these facts, such republication should be deemed to be a “natural and probable consequence” as a matter of law. In this connection, what is most significant is (1) that the credit information was contemplated by both the bank and Dun & Bradstreet to be confidential; and (2) that the republication apparently resulted from the mere fortuity that one of the bank’s directors was also a salesman for the realty company.²

It is therefore our conclusion that a directed verdict should have been entered in the defendant’s favor at the close of the plaintiff’s case since there was no evidence to suggest that the republication was either authorized by Dun & Bradstreet or the natural and probable consequence of its original act. Accordingly, the judgment of the district court is

REVERSED.

1 . Specifically, the report contained the following language:

“THIS REPORT MAY NOT BE REPRODUCED IN WHOLE OR IN PART IN ANY FORM OR MANNER WHATEVER. It is furnished by DUN & BRADSTREET, INC., in STRICT CONFIDENCE at your request under your subscription agreement for your exclusive use as a basis for credit, insurance, marketing and other business decisions and for no other purpose. These prohibitions are for your own protection — your attorney will confirm the seriousness of this warning.”

Dun & Bradstreet subscribers are instructed on how to interpret the information contained in the credit reports, and this, apparently, is the rationale for the prohibition on republication to non-subscribing third parties.

2 . We do not share the view of the dissenting opinion that the Illinois courts would hold “natural and probable” to mean “reasonably foreseeable” in determining whether the first pub-Usher of a libel is liable for republications. It is well settled in Illinois that each republication of a libel constitutes a separate cause of action which starts the statute of limitations running anew. See Colucci v. Chicago Crime Commission, 31 Ill.App.3d 802, 334 N.E.2d 461 (1st Dist. 1975). Therefore, unlike the negligence claim in Rensiow v. Mennonite Hospital, 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250 (1977), upon which the dissent relies, “claims for all foreseeable republications of libels would result in ‘perpetual liability for a single wrongful act.’ ” Midwest Bank Builders, Inc. v. Dun and Bradstreet, Inc., No. 76 C 1585, slip op. at 6 (N.D.Ill.1978). Moreover, we cannot agree that Dun and Bradstreet could have “reasonably foreseen” that one of the subscriber’s directors was also a salesman for a realty company that was contemplating a commercial transaction with the subject of the confidential report.