Accordingly, I am of the opinion that the plaintiff's cause of action accrued prior to January 17, 1944, and is therefore barred by the statute of limitations.
Coming now to the plaintiff's motion to amend his complaint, it may be said that if, upon facts supplied in affidavits, an amendment is justified, that amendment ought not to be prevented by entry of a final summary judgment on defendant's motion. Cf. Seaboard Terminals Corporation v. Standard Oil Co. of New Jersey, 2 Cir., 1939, 104 F.2d 659, 660; Rossiter v. Vogel, 2 Cir., 1943, 134 F.2d 908, 912.
As I stated earlier, the plaintiff, in his affidavits, asserts that the alleged libelous matter appearing in the issue of 'Lie' dated January 17, 1944, was republished 'by reference' in the issue of 'Life' dated February 7, 1944. The present motion was filed May 17, 1945, obviously relying on Rule 15, Federal Rules of Civil Procedure. The defendant has filed a number of affidavits, similar to those filed in support of its motion for summary judgment, which show that general distribution and circulation of the issue of 'Life' dated February 7, 1944, was completed by February 5, 1944. On the principles already announced and applied to the issue of 'Life' dated January 17, 1944, a fortiori the statute of limitations had run by the time the motion to amend was filed.
Without considering whether the alleged offensive material printed in the issue of 'Life' dated February 7, 1944, is actionable, it stands to reason that if it is actionable, the amendment, which in effect alleges a new publication, is barred by the statute of limitations. The rule is settled, in Federal and Pennsylvania courts, not inconsistent with Rule 15(c), that an amendment stating a new cause of action on which the statute of limitations has run may not be permitted. Hammond-Knowlton v. United States, 2 Cir., 1941, 121 F.2d 192, certiorari denied 1941, 314 U.S. 694, 62 S. Ct. 410, 86 L. Ed. 555; Brown v. New York Life Ins. Co., D.C.N.J., 1940, 32 F.Supp. 443, 444; see Colburn v. Birr, D.C.N.D.Ill., 1945, 4 F.R.D; 391; 17 Hughes, Federal Practice (1940) Sec. 20901; Stoner v. Erisman, 1903, 206 Pa. 600, 56 A. 77; Kowalewski v. Markowski, 1926, 86 Pa.Super. 27, 29. See Leland v. Firemen's Ins. Co., 1937, 127 Pa.Super. 533, 540, 193 A. 475. The relation back provided for in Rule 15(c) applies, as it is clearly stated therein, only when the asserted claim or defense arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading. The proposed amendment, however, does not set up a new claim on the same conduct or occurrence as that alleged in the original complaint, the publication of the issue of 'Life' dated January 17, 1944, nor is it a new statement or clarification of the matter therein alleged; rather it seeks recovery upon a new and distinct occurrence, upon a new and separate printing, circulation and publication of alleged libelous matter on February 7, 1944, and this constitutes a new cause of action. See Means v. MacFadden Publications, supra, 25 F.Supp. at page 995; Hartman v. Time, Inc., decided October 19, 1945, by Botein, J., Index No. 5008-1945, -- Misc., -- 60 N.Y.S.2d 209.
This much may be said for the matter contained in the amendment, under the Pennsylvania practice subsequent statements, whether actionable or not, whether before action brought or not, whether beyond the statute of limitations or not, so long as they are confined to expressions of the same nature or impute the same charge as those laid in the declaration, may be introduced in evidence at the trial for purpose of showing malice. Shock v. McChesney, 1799, 2 Yeates,Pa., 473; Wallis v. Mease, 1811, 3 Bin.,Pa. 546; Kean v. McLaughlin, 1816, 2 Serq.& R.,Pa., 649; Eckark v. Wilson, 1823, 10 Serq.& R.,Pa., 44, 53; McAlmont v. McClelland, 1826, 14 Serq.& R.,Pa., 359, 361; Elliott v. Boyles, 1857, 31 Pa. 65. Recovery may not be had directly upon such words, but only indirectly, as the evince the malevolence of the original utterance, and proper instructions must be given to the jury. Tilghman, C.J., in Wallis v. Mease, supra, 3 Bin.at page 550. This would perforce be true where the subsequent words are not actionable in themselves, or although actionable, are barred in some way.
Since the matter in the amendment is admissible in evidence, but not as a new cause of action for which direct damages may be awarded, it would ordinarily be includable in the complaint. It is no objection that the amendment contains only a part and not the whole of the article printed in the issue of 'Life' dated February 7, 1944. If, as here, the part omitted amounts to an apology, defendant may show that in mitigation; in any case, at the time of proof, plaintiff may be required to submit the whole article, see Commonwealth v. Swallow, 1898, 8 Pa.Super, 539, 607, or defendant could supply the omission in its answer.
However, since both the original complaint and the proposed amendment are barred, and since no material question of fact or defense is raised in the amendment, the amendment would accomplish nothing.
Finally, the defendant contends that the matter alleged in the complaint and in the proposed amendment is res adjudicata. This argument is based upon judgments rendered in actions instituted by the instant plaintiff against this defendant in New York (Index No. 5008-1945, October 26, 1945, New York Supreme Court, Part III) and in the District of Columbia (Civil Action 27, 377, April 30, 1945, District Court for the District of Columbia). In both cases, plaintiff originally alleged publication of libelous matter in the issue of 'Life' dated January 17, 1944, but in the former case the original complaint was amended to include the alleged libelous publication in the issue of 'Life' dated February 7, 1944. In the New York action, the amended complaint was dismissed as being barred by the statute of limitations, and in the District of Columbia action, defendant's motion for summary judgment was granted.
The plaintiff contends that he sued in each jurisdiction only for the tort committed there. I assume he sought to follow the procedure, except on a wider scale, adopted by the plaintiff in O'Reilly v. Curtis Publishing Co., D.C.Mass., 1940, 31 F.Supp. 364. That the tort is committed where the libel is published is apparent, Campbell v. Willmark Service System, 3 Cir., 1941, 123 F.2d 204, 106, and, of course, the law of the place where the tort is committed controls.
However, I have read the complaints in both actions, and, despite the earnest expression of plaintiff's intentions, I think that in both cases the complaints were so broadly worded as to include not only the torts allegedly committed in those jurisdictions, but everywhere else as well. For example, in the District of Columbia action, it was alleged: '3; * * * The said magazine has a circulation of approximately four million (4,000,000) copies weekly and is circulated throughout the continental United States and in foreign countries as well.' Similarly, the amended complaint in the New York action alleges that the magazine was distributed and read in the United States and 'in all parts of the City and State of New York as well as most of the civilized countries of the entire world.' In neither complaint are there to be found words limiting the scope of recovery to the particular jurisdiction; on the contrary, in the District of Columbia, it was alleged that as a result of the publication his reputation among students at Columbia and Harvard Universities was injured; obviously this is an allegation of injury in New York and Massachusetts, since there is nothing to indicate whether such students formulated their impressions as a result of the publication in the District of Columbia. Even giving the plaintiff the benefit of his word, there is nothing to indicate that recovery was sought only upon the publication in New York, in the one case, or only in the District of Columbia, in the other.
The judgments in both cases were final, and the pleadings are no longer subject to narrowing by amendment. The fact that appeals have been filed is not obstructive of the doctrine, since I have not found, nor has it been called to my attention, that in those jurisdictions the filing of an appeal vacates the judgment. Restatement, Judgments, Sec. 41, Comment (d), and Sec. 44. Nor is it decisive that these actions were begun before or at about the same time as the instant proceeding. Restatement, Judgments, Sec. 43. Since the complaints therein are broad enough to include the instant action both the complaint and the proposed amendment are already adjudicated. Restatement, Judgments, Sec. 48.
Accordingly, it is my opinion that the defendant's motion for summary judgment should be granted, and plaintiff's motion to amend his complaint should be denied.