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OGDEN v. ASSOCIATION OF THE UNITED STATES ARMY

October 14, 1959

Lawrence J. OGDEN, Plaintiff,
v.
ASSOCIATION OF the UNITED STATES ARMY, a corporation, Defendant



The opinion of the court was delivered by: HOLTZOFF

The question presented for decision in this case is whether from the standpoint of the statute of limitations in an action for libel every sale or delivery of a copy of a book, periodical, or newspaper containing an alleged defamatory statement, creates a separate cause of action; or whether only one cause of action arises which accrues at the time of the first publication of one or more copies of the offending material. To formulate this question in another form, should the so-called modern 'single publication rule' be the law of the District of Columbia? The question is one of novel impression in this jurisdiction.

The defendant pursuant to a contract with the United States published a book in 1954 entitled, 'Combat Actions in Korea'. This work contained some adverse criticisms on the handling of a platoon which it was said the plaintiff commanded during one of the engagements in Korea. It is charged by the plaintiff that these aspersions are defamatory and this action for libel was brought in respect to them. *fn1"

 The defendant moved for summary judgment on the ground, among others, that the action is barred by the one-year statute of limitations governing actions for libel in the District of Columbia, D.C.Code, Title 12, Section 201. The book was published in November 1955, whereas as this action was brought on June 25, 1959. The action is obviously barred by the statute of limitations unless subsequent individual sales of the publication within the one-year period prior to the filing of suit created separate and independent causes of action. In view of the importance of this question and its novelty in this jurisdiction, the Court felt that it was incumbent upon it to make a comprehensive study of the rules of law on this point and their present status in various Anglo-American jurisdictions.

 The common law was originally to the effect that every sale or delivery of a copy of libelous matter was a new publication and that, therefore, a new cause of action accrued on each occasion. This basic principle is formulated in the classic treatise of Odgers on Libel and Slander, p. 160, as follows:

 'So again every sale or delivery of a written or printed copy of a libel is a fresh publication; and every person who sells or gives away a written or printed copy of a libel may be made a defendant, unless, indeed, he can satisfy the jury that he was ignorant of the contents.'

 In The King v. Carlisle, 1 Chitty 451, 18 Eng.Common Law Reports 248, decided in 1819, it was said that 'every copy of the same libel sold by the defendant was a separate publication'.

 A leading English case on the subject is The Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng.Rep. 75, decided in 1849. It involved an issue of a newspaper published in 1830. A single copy was sold by the defendant seventeen years later and a suit for libel was predicated on this sale as a publication. The plea of the stautute of limitations was overruled on the theory that each sale or delivery of a copy of the offending material gave rise to a new and separate cause of action.

 This is still the law of England, Gatley, Libel and Slander, Fourth Edition by Richard O'Sullivan, Q.C., 1953, p. 383. An examination of the Reports of the British Dominions fails to disclose any departure from that rule in any of them.

 Restatement of the Law of Torts, Section 578, accepts this formulation of the law without discussion.

 The conditions in respect to dissemination of printed publications prior to the middle of the Nineteenth Century were vastly different from those prevailing in our times. Modern typesetting machines and rapid whirling steam printing presses have made it possible to reproduce a number of copies of a single publication far beyond any number within the realm of contemplation a century ago. Today newspapers can achieve a circulation of a million copies daily. Periodicals are diffused in large quantities. Books attain a distribution far beyond that likely a hundred years ago. Mass production has entered the printing and publishing field. To say that every sale or delivery of a copy of a publication if it contains defamatory matter, gives rise to a new cause of action may seem logical from a purely technical standpoint, but to adhere to this doctrine would be to sacrifice reality to strict technical logic. Under modern conditions the original common-law rule would give rise to an unnecessary multiplicity of suits and would practically destroy the statute of limitations as a statute of repose in actions for libel. There is no doubt, to be sure, that the number of copies of the offending publication that have been supplied to the public is a factor to be considered in determining the amount of damages to be awarded. In order to protect the plaintiff in this respect, however, it is not necessary to hold that every sale and delivery of an additional copy is a new publication and gives rise to a new cause of action.

 One of the early departures from the common-law rule occurred in Missouri in 1908. In Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496, the Court held that the one entire issue of a newspaper, though it may have consisted of many thousand copies, gave rise to but one cause of action, and that there was but one publication. While this case did not involve the statute of limitations but a question of venue, nevertheless, it adopts the single publication rule, namely, that all of the copies of a printed publication constitute a single publication occurring on first delivery or distribution to the public.

 The same principle was adopted in Alabama in 1921 also in connection with a question of venue, Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 45, 92 So. 193, 37 A.L.R. 898.

 One of the earliest reported cases in which the single publication rule was applied in respect to the statute of limitations, is a New York decision. Wolfson v. Syracuse Newspapers, Inc., 1938, 254 App.Div. 211, 4 N.Y.S.2d 640, affirmed 1939, 279 N.Y. 716, 18 N.E.2d 676. It held that in connection with the publication of a defamatory article in a newspaper, there is but one publication, which occurs at the time of publication of the original issue; that the cause of action accrues at that time; and that the statute of limitations begins to run on that date.

 In Gregoire v. G. P. Putnam's Sons, 1948, 298 N.Y. 119, 81 N.E.2d 45, a few years later, it was held that the same doctrine, i.e., the 'single publication' rule should also apply to books and was not limited to newspapers or magazines. Obviously there is no distinction in principle between the two. There is only a difference in degree. The principle is very pointedly ...


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