not be subjected to the harassment of repeated law suits.'
In Gregoire v. G.P. Putnam's Sons, Books, Inc., 1948, 298 N.Y. 119, 81 N.E. 2d 45 at page 48, the single publication rule was extended in New York to include books. The New York Court of Appeals found the reasons underlying the statutes of limitations as compelling when applied to modern dissemination of printings or impressions of a book as when applied to cases involving newspapers or magazines; that, otherwise, the statute of limitations as to an edition of a book could go on ad infinitum. In accord as to books, see Wolfson v. Syracuse Newspapers, Inc., 4 N.y.s.at page 642. Said the court in Gregoire v. G.P. Putnam's Sons, Books, Inc., supra, 81 N.E.2d at page 49, 'Although it may not be said that the publication and dissemination of books has reached that degree of mass production and widespread distribution now prevalent in fields invaded by newspapers and periodicals, it is our view that the publication of a libelous book, involving styling, printing, binding and those other acts which enable a publisher on a given date to release to the public thousands of copies of a single printing or impression, affords the one libeled a legal basis for only one cause of action which arises when the finished product is released by the publisher for sale in accord with trade practice.'
The precise decision was that the statute of limitations began to run from the date of the initial publication. See Mattox v. News Syndicate Co., Inc., 2 Cir., 176 F.2d 897 at page 905, 12 A.L.R.2d 988. Cf. Hartmann v. Time, Inc., 64 F.Supp. 671 at page 679, 'the cause of action accrues, for the purpose of the statute of limitations, upon the first publication, when the issue goes into circulation generally.' Hartmann v. Time, supra, 166 F.2d at page 135.
In a single publication state, additional shipments would not create a new cause of action or stop the running of the statute of limitations. Id. See Note 1 A.L.R.2d 384, 48 Col.L.Rev. 475; Id. 932; 97 U.of P.L.Rev. 291; 27 N.Car.L.Rev. 271; 60 Harv.L.Rev. 941.
We therefore hold, applying the same reasoning and logic, that a Pennsylvania court would include books within the 'single publication' rule, and rule that the statute of limitations on the edition in question commenced to run on November 17, 1946. Since the plaintiff did not file his complaint until December 9, 1947, the defendant's plea of the statute of limitations should have been sustained as to any cause of action arising in Pennsylvania.
This plea would likewise bar claims arising in all single publication states since as to these the time allowed in the statute would commence to run from the date of the original publication.
What of publication, if any, in states following the traditional common law rule? Although Pennsylvania would hold that one edition constituted but one publication and one libel as a matter of internal law,
whether it would continue to follow its traditional conflicts of law rule of reference to the place of the wrong- applied where injury occurred in another state,
- to the situation presented by a multi-state tort, 'remains to be seen'. See Goodrich, J., in Campbell Soup C. v. Armour & Co., 8 Cir., 175 F.2d 795 at page 796. 'The rule is clear enough, although the application of it may get bewilderingly complicated.' Id. See Note, 60 Harv.L.Rev. 941 at 944, 945; Note 48 Col.L.Rev. 932, 935, 938.
Rosenzweig v. Heller, 302 Pa. 279 at page 285, 153 A. 346, holds that statutes of limitation should operate equally upon litigants seeking relief in Pennsylvania, whether the remedy sought is for a cause of action originating in Pennsylvania or elsewhere. See Otis for Use of Eaton v. Bennett, 3 Cir., 91 F.2d 531 at 532, quoting from Amy v. City of Watertown, 130 U.S. 320, 324, 9 S. Ct. 537, 538, 32 L. Ed. 953: "The general rule' respecting statutes of limitations 'is that the language of the act must prevail, and no reasons based on apparent inconvenience or hardship can justify a departure from it."
Suppose that after the date of the original publication defendant sold two copies of the book- one to a Pennsylvanian, another to a citizen of Wisconsin, and assuming that each later read and understood the story in controversy, under the rule of Rosenzweig v. Heller, supra, would a Pennsylvania court bar the Pennsylvania claim, but not that of the citizen of another state?
Hartmann v. Time, Inc., supra, 166 F.2d at pages 134, 135, expressed a preference for a conflicts of law rule which would refer to the law of but one state. The court, following Pennsylvania law, held however that the trial court must look to the law of the several states involved, and, if publication occurred in a common law state, that would constitute a separate cause of action, and the period of the statute of limitations would not commence to run until the date of publication in that particular state.
In an attempt to show publication in states following the 'multiple publication' rule, plaintiff sought to dispense with the necessity of proving that the alleged libel was read and understood by a third person. True, courts have held actual proof unnecessary; that it might be inferred when the 'single publication' rule is applicable. See Hartmann v. Time, Inc., supra, 64 F.Supp.at page 678; 166 F.2d at page 135. Under the traditional common law rule however such proof is indispensable. Cf. Williams v. Kroger Grocery & Baking Co., 337 Pa. 17 at page 20, 10 A.2d 8; 33 Am.Jur., Libel and Slander, § 90, p. 103. '* * * printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually follows.' 64 C.J.S., Libel and Slander, § 81, page 130. '* * * It is necessary not only that the defamatory matter be brought to the attention of a third person but that he understand its defamatory significance.' Restatement, Torts, § 577, comment c. There must be proof that 'the person to whom the communication is made understood their purport and meaning and knew to whom they referred. Wiedman v. Ketcham, 278 N.Y. 129, 131, 15 N.E.2d 426.' Wolfson v. Syracuse Newspapers, Inc., supra, 18 N.E.2d 676, 678.
In the second week of the trial, having failed to prove any such publication, plaintiff in order to meet this evidentiary requirement gave notice to defendant that within less than forty-eight hours thereafter, he would take depositions in Winter Park, Florida, Vancouver, Washington, and Janesville, Wisconsin.
The testimony did not show the book was read in either Washington or Florida. As to Wisconsin there was testimony that on January 24, 1946, one person purchased a copy of the book, and that he read the story in question sometime in March 1947; he did not testify as to his understanding of it or, in view of plaintiff's contentions, its connotations, implications or its comprehensiveness. As to the necessity for same, see Restatement, Torts, § 563 and comments c and e, § 564 and comment a.
When notice as to taking depositions was given, defendant objected to taking them under the circumstances- contemporaneously and over such a wide area. Defendant insists he was not afforded ample notice nor reasonable opportunity for counsel who were familiar with the case to be present when the depositions were taken, and to cross-examine the deponent. See Clair v. Philadelphia Storage Battery Co., 27 F.Supp. 777, 778. Rule 30(a) of the Fed. Rules Civ. Proc. 28 U.S.C.A., requires that reasonable notice be given. Such notice was not given to the defendant and under the circumstances the depositions should not have been admitted in evidence for any purpose. For a factual situation practically on all fours with that here present, see Mims v. Central Mfrs. Mut. Ins. Co., 5 Cir., 178 F.2d 56 at page 59.
As an additional arrow to his bow, defendant avers that during the trial plaintiff offered in evidence generally the paragraph of defendant's answer which plead privilege and fair comment, and argues that plaintiff is bound thereby. 'Where * * * paragraphs of an affidavit of defense are offered by the plaintiff generally, the averments of fact therein contained must be given due credit.' See Crew Levick Co. v. Gibbon, 115 Pa.Super. 595 at page 596, 176 A. 27; Kull v. Mastbaum & Fleisher, 269 Pa. 202, 204-205, 112 A. 631.
'* * * A party may be relieved of the burden imposed upon him by the fact that the necessary proof is introduced by his adversary.' 20 Am.Jur., Evidence, § 135, p. 140; Otto v. Western Saving Fund Soc., 343 Pa. 615 at pate 621, 23 A.2d 462.
As to the remedy, the law of the forum- the lex fori- controls. Restatement, Conflict of Law, § 380(a), § 383, comment b, § 595, comment a, b; Tobin v. Pennsylvania R. Co., 69 App.D.C. 262, 100 F.2d 435, 436; Foley v. Pittsburgh-Des Moines Co., supra, 363 Pa. 9-10, 58 A.2d 517; Rosenzweig v. Heller, supra, 302 Pa. 279 at page 285, 153 A. 346. This would obviously include the determination as to whether there is sufficient evidence of an issue of fact to warrant its submission to a jury. Norwood v. Great American Indem. Co., 3 Cir., 146 F.2d 797, 799; Sudol v. Gorga, 356 Pa. 463 at pages 465, 466, 31 A.2d 119; Singer v. Massina, 312 Pa. 129, 135, 167 A. 583, 89 A.L.R. 1271; Restatement, Conflict of Law, § 595.
Absent proof of publication in any traditional common law state, the case should not have been submitted to the jury.
Plaintiff's motion for new trial will therefore be denied.