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Barres v. Holt

Decided: November 18, 1974.

ANTHONY BARRES, PLAINTIFF,
v.
HOLT, RINEHART AND WINSTON, INC., A CORPORATION OF THE STATE OF NEW YORK AND RON PORAMBO, DEFENDANTS



Dwyer, J.s.c.

Dwyer

Before filing an answer defendant Holt, Rinehart and Winston, Inc. (publisher) moved to dismiss the complaint of Anthony Barres filed on May 31, 1974, charging publisher and Ron Porambo (author) with libel based on certain statements made about Barres in the book, No Cause For Indictment. The motion was made on the grounds that court lacked subject matter jurisdiction*fn1 and the complaint failed to state a cause of action in that the accompanying affidavit of publisher's officer showed that the book was released in accordance with general trade practices on November 15, 1971, and hence any cause of action was barred on November 16, 1972, citing N.J.S.A. 2A:14-3 (one-year period of limitation for libel). Alternatively, publisher moved for summary judgment.

Barres contended that no dates were set forth in the complaint; hence, the defense of statute of limitation could not be raised by motion. He further contended that each sale of the allegedly libelous book gave rise to a new cause of action; hence, the fact that there had been a general release of the book on November 15, 1971 should not result in a holding that all claims were barred by the one-year statute of limitation.

This motion presented a question of novel impression for decision under New Jersey law, namely, when does the period of limitation commence to run on a libelous statement made in a book distributed in many states on a general release date where the publisher thereafter sells copies of such book for several years.

There are two rules. The older rule is that each repetition of a libel, in this case sale of the book, creates a new cause of action -- the multiple publication rule. However, in recent years the American courts have held that

where an issue of a newspaper, magazine or edition of a book contains a libelous statement, plaintiff has a single cause of action and the number of copies distributed is considered as relevant for damages but not as a basis for a new cause of action -- the single publication rule. See Prosser, Torts (4 ed. 1971), § 113.

Since Barres had had no opportunity for discovery, the court treated the matter as one for summary judgment, R. 4:6-2, and allowed plaintiff to take the deposition of the affiant and examine the records of publisher. See Community Development Co., Inc. v. Seaside Gardens, Inc., 7 N.J. 153 (1951); cf. Rappeport v. Flitcroft, 90 N.J. Super. 578 (App. Div. 1966). The deposition was taken and supplemental briefs were submitted. Counsel did not refer the court to, and the court has not found, any New Jersey case that has decided which of the aforementioned rules should apply.

The following are uncontroverted facts. Author wrote the manuscript for No Cause For Indictment based upon events and persons involved in the community life of the City of Newark in the period preceding and following the riot in 1967. Barres was and is a resident of Newark and still is active in the Newark Police Department. He is chief of police and has served as acting director of police.

Publisher acquired certain rights to the manuscript from Author through his New York literary agent. Publisher, a nationally known publishing house, is a New York corporation with offices in New York. It maintains warehouses for distribution in several states, including one in Clifton, New Jersey, and it has a registered agent in New Jersey.

In the late summer of 1971 publisher prepared the manuscript for printing. Based on business judgment, publisher placed an order with a third-party printer in Massachusetts for the printing of 6,000 copies. It later placed an order with a corporation related to the printer and located in Massachusetts for the binding of said 6,000 copies in hard cover.

By October 19, 1971 publisher knew that the books would be ready for distribution. It accordingly sent copies to reviewers and buyers for book outlets, listed the book in its fall catalog, and arranged for newspaper advertising in the Bergen Record and the Newark Star-Ledger in November and December 1971.

Pursuant to established trade practice, publisher released the book to the trade and to book stores on November 15, 1971. It also filled all prerelease date orders on that date. By December 31, 1971 publisher had sold 3,773 hard cover copies and had also distributed several hundred copies to reviewers. Publisher on January 21, 1972 advertised the book in the New York Times. Sales of the aforesaid 3,773 copies were regarded as good. In February 1972 publisher placed an order with the same printer and binder for an additional 2,500 hard cover copies.

However, sales of the hard cover copy slackened. In July 1972 publisher ordered hard covers removed from 2,500 copies and paper covers substituted. There is nothing in the record to indicate that there was any general announcement or release to the trade or public concerning the paperback edition.

Beginning in July 1972 Publisher had 2,500 paper cover copies. It sold 454 in 1972, 306 in 1973 and 243 to September 1974 and, after distributing copies to reviewers, bookstore employees and others, presumably has about 1,373 paperback copies currently remaining. It fills requests for the book from this stock.

In respect to the hard cover copies, publisher received back 186 more copies than it sold in 1972. In August 1973 it sold approximately all of its inventory, totaling 1,857 copies, to a remainder outlet at less than 50 cents a copy. The invoice for this transaction indicates that it was part of a disposition of several titles that were not then moving. The sale was final. The remainder outlet sells by mail as well as through a few specially selected retail outlets. Publisher has no information concerning the remainder outlet's disposition

of these 1,857 books. Publisher has no more hard cover copies.

There is no question that Barres had a cause of action on November 15, 1971 when publisher released the book, assuming for the purposes of this motion that the statement was libelous. See Johnson v. Asbury Park Press, Inc., 14 N.J. Misc. 282 (Sup. Ct. 1936), aff'd 117 N.J.L. 533 (E. & A. 1973).*fn2 In that case plaintiff moved to strike the defense that the one-year period of limitation for libel enacted by the Legislature on April 30, 1934, L. 1934, c. 98, barred the complaint filed February 25, 1936. The libel was published March 7, 1934 when there was no express statutory period of limitation for libel. The court rejected the argument

based on constitutional grounds that the one-year period of limitation could not be applied retroactively. It held that the cause of action arose when the alleged libelous article appeared in the issue of the Asbury Park Press of March 7, 1934, and plaintiff, therefore, had ten months to sue before the new general rule prevented suit. See also, Zuck v. Interstate Publishing Corp., 317 F. 2d 727 (2 Cir. 1963), where, after determining that only New York or New Jersey law could apply, the court held that under New York law the period of limitation commenced to run from the date a magazine was delivered for sale to the public, and said that in the absence of any New Jersey decisions, the period of limitations under N.J.S.A. 2A:14-3 did not commence to run at any date earlier than the date of sale to the public.

In New York, as in most other jurisdictions, the statute of limitations for libel actions is unusually short. To fix as the date of legal publication even the time that the offending matter is placed on sale to the public may create a trap for unwary plaintiffs; magazines are often post-dated several weeks or months after the actual date they are placed on sale to the public. To fix the accrual date prior to receipt by the public of the libelous material, however, is normally to begin the running of the statute of limitations before the time that the offending publication has been brought to the victim's attention, and, indeed, prior to the occurrence of any harm to his reputation. The result, thus, is an effective shortening of an already short limitation period. Moreover, under the single publication rule, victims of mass publication libel are given but one action in which to recover for all harm produced by a single edition of a newspaper, magazine, or book. The earlier that sole cause of action must be commenced, the greater the likelihood of post-judgment distributions of the offending material for which the victim is denied any relief whatever. [at 731]

The question, then, is what is the nature of the right that Barres had on November 15, 1971.

In Duke of Brunswick v. Harmer, 14 Q.B. 185, 177 Eng. Rep. 75 (1849), the court held that plaintiff was not barred by statute of limitations in bringing an action for libel based on defendant's sale of a single copy of newspaper printed in 1830 when the sale occurred in 1847. Each sale

of the newspaper created a new cause of action, and each repetition of a libel or slander to a person other than the person defamed damages the reputation of plaintiff and gives rise to a new cause of action. See Restatement, Torts, § 577 (1938); 1 Harper and James, Law of Torts, § 5.16 (1956).

Applying that rule to the facts of this case, Barres would have a cause of action based on each sale that occurred in the year preceding the filing of the complaint on May 31, 1974, i.e., from June 1, 1973. What disposition would be made in respect to sales made after the complaint was filed? What, if any, consideration should be given to the sales on and before May 30, 1973? What Law is to apply to the sales made in foreign states? The attempt to solve such problems led to the development of the single publication rule. See Harper and James, supra, and Prosser, supra, where the author of the latter states:

The decisions developing the single publication rule suggest the following reasons for its development: To prevent the constant tolling of the statute of limitations and thereby support the legislative determination for a short period of limitation of libel, Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, 4 N.Y.S. 2d 640 (App. Div. 1938), aff'd per curiam with a strong dissent, 279 N.Y. 716, 18 N.E. 2d 676 (Ct. App. 1939); Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E. 2d 45 (Ct. App. 1948); convenience to the parties and courts in consolidating into one action all the damage to plaintiff, Wolfson, supra; Gregoire, supra, and Zuck, supra; also Ogden v. Ass'n of United States Army, 177 F. Supp. 498 (D.C.D.C. 1959).

In Gregoire v. G. P. Putnam's, supra, plaintiff instituted suit on July 2, 1946 against the author and publisher of a book containing an alleged libelous statement. The publisher commenced distribution of the book in November 1941 and thereafter made seven additional printings of the same edition, the last in December 1943. After 1943 all sales were from stock. In the year preceding the filing of the complaint 20 copies were sold in the United States.

The matter for decision by the Court of Appeals concerned the following question certified by the Appellate Division:

The Court of Appeals was divided four to three. The majority adopted the single publication ...


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