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KILIAN v. DOUBLEDAY & CO. (03/19/51)

March 19, 1951

KILIAN, APPELLANT,
v.
DOUBLEDAY & CO., INC.



Appeal, No. 273, Jan. T., 1950, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1947, No. 5251, in case of James A. Kilian v. Doubleday & Co., Inc. Judgment reversed; reargument refused April 14, 1951.

COUNSEL

Lewis Weinstock, with him Conlen, La Brum & Beechwood, for appellant.

W. Wilson White, with him Thomas Raeburn White, White, Williams & Scott, and C. L. Cushmore, Jr., for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Stern

[ 367 Pa. Page 118]

OPINION BY MR. JUSTICE HORACE STERN

In this action for libel the jury rendered a verdict in favor of defendant. Plaintiff appeals from the refusal of the court below to grant him a new trial.

This is the way in which the allegedly libelous article came to be written: -- At the American University in Washington a course in English was conducted by Don M. Wolfe, the students being disabled veterans of World War II. The course consisted, in part, of the writing by the students of essays or stories about their personal experiences in the war; their compositions would be submitted to Dr. Wolfe, who suggested corrections and revisions. Dr. Wolfe conceived the idea of having these stories published in book form, and, after an original publication by another concern, he entered into a contract with defendant, Doubleday & Company, for that purpose. Each student in the class, 53 in all, contributed at least one article. The book was published under the title "The Purple Testament", and it was advertised in the jacket as consisting of

[ 367 Pa. Page 119]

"the native eloquence of absolute honesty", and as constituting "the fragments of their [the authors'] own intimate experiences". Some 9000 copies were sold and distributed throughout the United States. Among the articles was one by Joseph M. O'Connell which gave rise to the resent suit.

O'Connell was a soldier who had been seriously injured during the course of the Normandy invasion and was hospitalized from August to October, 1944, at a station hospital about 12 miles from Lichfield, England, where there was a large replacement depot. In the original draft of the article which he wrote he narrated incidents said to have occurred at the Lichfield camp and which, he testified at the trial, were described to him by individuals who had allegedly witnessed them. Dr. Wolfe, to whom he submitted the draft several times, stated that he "thought it was interesting, and that it was the first time he had heard about it", but twice returned it with the suggestion that O'Connell should use "more descriptive detail", that he should "make it more vivid", that it "did not have in it the sights, sounds and bits of conversation necessary to make the story readable". The result was that whereas O'Connell had originally written the article in the third person he now wrote it, in order to "make it more vivid", in the first person, purporting that the incidents he narrated occurred under his own personal observation and in his own experience.

The story, as it finally appeared in "The Purple Testament", may be condensed as follows: -- I [O'Connell] and my buddy, while being transferred in an ambulance from one hospital to another in England, reached a bid army camp near Lichfield.The camp was dreary and ugly; it reminded me of the rotten, filthy German prison camps I ...


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