Before BIGGS and McLAUGHLIN, Circuit Judges, and RODNEY, District Judge.
The appellant, Hartmann, sued Time, Inc., publisher of the magazine "Life," alleging that he was libeled by certain material published by "Life" in an issue of that magazine dated January 17, 1944. The suit was filed in the Court of Common Pleas, Philadelphia County, on January 17, 1945 and was removed to the court below. The nature of the alleged libel is so fully and carefully set out in the opinion of the court below that it need not be repeated in detail here. See Hartmann v. Time, Inc., D.C., 64 F.Supp. 671. It is sufficient to state that Hartmann alleged, among other things, that "Life" is distributed "in all parts" of Philadelphia and the Commonwealth of Pennsylvania, throughout the United States, in most of the civilized countries of the world and to the armed forces of the United States overseas, that the alleged libelous material stated or interred that he was associated with persons who had been indicted "for fascist activities" and that he was acting in a manner subversive to the security of the United States, that as a result of the alleged libel he lost his position as a professor at Columbia University and his earning power and reputation were damaged. We are not concerned with the question of whether the material published was libelous as a matter of law. This issue was not raised in the court below.
Before answer the defendant filed a motion for summary judgment*fn1 setting up the defense of statute of limitations. In its affidavits it asserted that the number of "Life," dated January 17, 1944, which contained the accused material, miscellaneous copies for purposes of replacement and for filling new subscriptions excluded, had been distributed to all news stands and subscribers except those in remote portions of the United States and in foreign countries not later than January 14, 1944. The plaintiff filed affidavits tending to deny these allegations.
Thereafter Hartmann attempted to file an amendment to his complaint, supporting his petition by affidavits. In his proposed*fn2 amendment Hartmann asserted that the alleged libel was republished in an issue of "Life" dated February 7, 1944. In this connection it appears that the plaintiff, by a letter to the editors of "Life," had protested the original material published in the issue of "Life" dated January 17, and the alleged republication of the libel in the number of "Life" dated February 7 consists of a statement by the editors printed immediately after Hartmann's letter to the effect that they believed they had dealt fairly with Hartmann and the movement of which he was a leader. The editors insisted that the movement which Hartmann was conducting was dangerous to our war effort and to our attempts to achieve a worthwhile peace. The question of whether this later material was actionable (like that first published) was not before the court below.
In an affidavit filed by the defendant there were set up the pleadings and judgments in certain suits filed by the plaintiff against the defendant respectively in the District Court of the United States for the District of Columbia and in the Supreme Court of New York, Part III, New York County. The pleadings and judgments in effect constituted a plea of res judicata in the case at bar and properly were so treated*fn3 by the court below.
In respect to the defense of the statute of limitations the court below held that the publication of an issue of a magazine such as "Life", widely distributed and consisting of thousands of copies,*fn4 can give rise to but one cause of action; that the statute of limitations must be deemed to run from the date of the publication, which was found to be January 14, 1944, and that issuance of additional copies for replacement purposes or to fill new subscriptions, can go only to the measure of damages but can create no new cause of action; that the publication of the issue of "Life" dated February 7, 1944 could not be related back to the original publication of "Life" dated January 17 but constituted a new publication which also was barred by the statute of limitations of Pennsylvania.
In respect to the plea of res judicata the court below held that the judgments in the suits respectively in the District Court for the District of Columbia and in the Supreme Court of New York, New York County, barred the plaintiff's suit in Pennsylvania.
Upon reading the opinion below it will be observed immediately that in its decision respecting publication the court departed from the conventional law of libel. There is much authority to the effect that each time a libelous article is brought to the attention of a third person a new publication has occurred; that each publication is a separate and actionable tort; and that each time a newspaper or magazine, containing libelous material is sold or distributed a new publication has occurred and a fresh tort has been committed, which, defenses aside, is actionable.*fn5 The court below, contrasting the circumstances which gave rise to the old common law rule with the new and changed conditions created by magazines and newspapers with national circulations, concluded, supra 64 F.Supp. at page 679, "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 the 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.*fn6 * * * In Pennsylvania the number of copies is taken into consideration in assessing damages*fn7 * * *."
The court below went on to state, "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 learned District Judge then concluded that he was in agreement with this rule which, for the purpose of convenience, we will designate as that of "single publication." He held also that the miscellaneous copies of the issue of "Life" dated January 17, 1944, sent out by the publishers by way of replacement of damaged copies or in satisfaction of new subscriptions, were not to be considered as tolling the bar of the statute of limitations since these copies were part of one original publication.
It will be observed that though the primary question presented for consideration under this aspect of the case at bar is the application of the Pennsylvania statute of limitations, an underlying and far-reaching question of substantive law is involved. The complaint alleges, as we have stated, that publication took place in Philadelphia, in the Commonwealth of Pennsylvania, in civilized foreign nations and among the armed forces of the United States overseas. It appears from the defendant's affidavits that the contents of the issue of "Life" dated January 17, 1944 was prepared by an editorial staff in New York City and was printed in Philadelphia and Chicago; that distribution of the magazine to news stands or subscribers began in Chicago on January 10 and in Philadelphia on January 11, 1944. If the publication had not extended beyond Pennsylvania it is obvious that the plaintiff's cause of action could have arisen only in that State.*fn8 The smaller part of the issue, however, was published in Philadelphia; the larger part, in Chicago. We have, therefore, applying the rule laid down by the court below in all its strictness, at least two places of publication occurring respectively in two separate States and on successive days. Indubitably it was the intention of the defendant to cause the accused issue of "Life" to go into every State of the Union and to nations and to members of the armed forces overseas for otherwise the defendant would not fulfill its contractual obligations.
Let us assume, as is not unreasonable, that the accused issue of "Life" reached England one week after January 14. Whether the plaintiff would have a cause of action against the defendant in England would depend on the law of England and not on that of Pennsylvania or Illinois. This conclusion is pertinent in respect to any cause of action which the plaintiff may have in any of the States of the United States or in a foreign country. The plaintiff's statement of claim is not limited to Philadelphia, or to Pennsylvania, though those localities are designated as places of publication. The statement of claim does not limit the accrual of the cause or causes of action to Illinois or to any other State of the United States or to any foreign country. The defendant has not availed itself of any of the means supplied by the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to compel the plaintiff to draw out the allegations of his complaint to the end that the situs of the tort or torts alleged may be restricted to Illinois or to Pennsylvania or to any other state. See Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, 254. Indeed, the defendant has not sought to impose, or agreed to the imposition of any such limitation upon the scope of the plaintiff's pleadings as appears from note 8 supra. We, therefore, for the purposes of the instant appeal, must treat the allegations of the complaint as the places where publication occurred as covering the United States and the civilized countries of the world.
The suit at bar, commenced in the Court of Common Pleas of Philadelphia County, was removed by reason of diversity to the court below. The rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, governs, and, as we have already indicated, the law of the place or places, if any, where the cause or causes of action accrued, governs in the creation of substantive rights. An examination of the laws of libel of the States of the United States shows a distinct cleavage. Some of the States, notably Alabama and New York, were the principal sponsors of the rule of the "single publication" rule laid down by the court below in the disposition of the instant case. See the decision of the Supreme Court of Alabama decided in 1921 in Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A.L.R. 898, and that of the Supreme Court of New York, Appellate Division, in Wolfson v. Syracuse Newspapers, 254 App.Div. 211, 4 N.Y.S.2d 640. But other States adhere to the older rule that each time a libelous article is brought to the attention of a third person, a new publication has occurred and that each publication is a separate tort. See the authorities cited in note 5 supra. Texas clearly is in this category, Renfro Drug Co. v. Lawson, 1942, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732, as probably are Kentucky, Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S.W. 15, and Washington, Holden v. American News Co., D.C.E.D.Wash., 1943, 52 F.Supp. 24. Such actions are transitory in their nature and may be sued on in Pennsylvania. See 17 R.C.L. Section 120, p. 370. It is unnecessary to categorize the laws of the other States of the United States except as hereinafter set out. This is a matter which may be gone into on remand. The laws of foreign countries, of course, must be proved or come to the apperception of the court in some other recognized manner. See Chicago Pneumatic Tool Co. v. Ziegler, 3 Cir., 151 F.2d 784, 793.
We entertain no doubt that under the law of Illinois*fn9 a cause of action accrued to the plaintiff by reason of the publication in Chicago of the issue of "Life" dated January 17, 1944.*fn10 We think it is clear also that the law of Illinois brings that State into the category of States first referred to, the law of which holds that a single issue of a magazine constitutes but one publication and creates a single tort. We base this conclusion on the decision of the Circuit Court of Cook County, Illinois, in McGill v. Time, Inc., handed down on March 23, 1945.*fn11 We are also of the opinion that under the "single publication" rule the Illinois publication of the accused issue engrossed, as it ...