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Forman v. Miss. Publishers Corp.

Supreme Court of Mississippi, In Banc
Jun 14, 1943
195 Miss. 90 (Miss. 1943)

Summary

holding that the cause of action against the publisher accrued in county of first publication and circulation and “was not enlarged by an expanding circulation”

Summary of this case from Fairley v. Espn, Inc.

Opinion

No. 35385.

June 14, 1943.

1. VENUE.

Where newspaper containing alleged libel was published in Hinds County, joinder of Sunflower County newspaper dealer who purchased limited number of copies of newspaper and who was free to dispose of them as she saw fit, in suit for libel, was not of itself effective to fix venue as to publisher in Sunflower County, under evidence (Code 1930, sec. 495, as amended by Laws 1940, ch. 248).

2. VENUE.

In case of frivolous or fraudulent joinder of defendant residing in county in which suit is brought, dismissal of suit is proper where jurisdiction over nonresident defendant is dependent upon jurisdiction of resident defendant.

3. CORPORATIONS.

Where foreign corporation had appointed a resident agent, it was subject to same rights and disabilities as to venue as are domestic corporations (Code 1930, sec. 495, as amended by Laws 1940, ch. 248).

4. ACTION.

A cause of action "accrues" when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.

5. VENUE.

Where cause of action, if any, arising out of publication of newspaper containing allegedly libelous article accrued in Hinds County where newspaper was published and first circulated, a new and separate cause of action did not "accrue" on circulation of newspaper in some other county, within venue statute (Code 1930, sec. 495, as amended by Laws 1940, ch. 248).

6. LIBEL AND SLANDER.

The extent of circulation of newspaper containing allegedly libelous article is relevant on issue of quantum of damages.

7. LIMITATION OF ACTIONS.

Statute of limitations begins to run from date of first publication of newspaper containing allegedly libelous article.

8. LIBEL AND SLANDER.

The gravamen of action for libel is not knowledge by plaintiff nor injury to his feelings, but degrading of reputation.

9. LIBEL AND SLANDER.

Cause of action, if any, based on publication of allegedly libelous article "accrues" as soon as newspaper containing article is exhibited to third person.

10. VENUE.

A cause of action based on publication of newspaper containing allegedly libelous article "accrues" where the paper is first published.

11. VENUE.

Where newspaper containing allegedly libelous article was published and first circulated in Hinds County, the publisher's domicile, and was thereafter circulated in Sunflower County, where plaintiff resided, and where plaintiff instituted suit for libel against publisher and against local newspaper dealer, after elimination of the local defendant under plea in abatement, suit against publisher was properly dismissed without prejudice, since the cause of action "accrued" in Hinds County, within venue statute (Code 1930, sec. 495, as amended by Laws 1940, ch. 248).

SMITH, C.J., and ROBERDS, J., dissenting.

APPEAL from circuit court of Sunflower county, HON. S.F. DAVIS, Judge.

Frank E. Everett and Neill, Clark Townsend, all of Indianola, for appellant.

By the plea in abatement filed in this cause by the appellee, Mississippi Publishers Corporation, a number of questions are raised, the first of which is that the venue of this action is in the first judicial district of Hinds County, Mississippi, and not in Sunflower County.

We beg to submit that the venue of this action is fixed by Section 495, Code of 1930, and the amendment thereto, Chapter 248, Laws of 1940, in both of which the venue of civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which the corporation is domiciled, or in the county where the cause of action may occur or accrue, except where otherwise provided, thereby giving to the plaintiff the right to lay the venue in actions against domestic corporations in the county of its domicile or in the county where the action occurred or accrued. And when the plaintiff selects the forum and sues in the county where the cause of action accrued or occurred, the corporation cannot remove the case to the county of its domicile.

Morrimac Veneer Co. v. McCalip, 129 Miss. 671, 92 So. 817; Batson Hatten Lumber Co. v. McDowell, 159 Miss. 322, 131 So. 880; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677; Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292.

But counsel may contend that Section 495 as amended by Chapter 248, Laws of 1940, does not apply, because the Mississippi Publishers Corporation is not a domestic corporation, but a nonresident corporation, and that it had appointed H.V. Watkins, Sr., as resident agent for service of process in Mississippi. Therefore, aside from Chapter 246, Laws of 1940, this court passed upon the identical question of venue here involved, in the cases of Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887, and Memphis Steam Laundry v. Lindsey, 192 Miss. 224, 5 So.2d 227.

Civil actions for libel are transitory in their nature, and it is very generally held that such an action may be brought in any jurisdiction where the libelous article was published or circulated, even though the article was written or printed elsewhere.

Kenney v. Gurley, 208 Ala. 623, 95 So. 34; Davis v. Heflin, 130 Va. 169; Root v. King (N.Y.), 4 Cow. 403; Woolworth v. Klock, 92 N Y App. Div. 142, 86 N.Y. Supp. 1111; Duryee v. Orcott (N.Y.), 9 Johns 248; Belo Co. v. Wren, 63 Tex. 686; Bailey v. Chapman, 15 Tex. App. 240[ 15 Tex.Crim. 240]; Vitola v. Bee Pub. Co., 73 N.Y. Supp. 272.

A cause of action for libel published in a newspaper arises in a jurisdiction where the paper is circulated.

Hoskell v. Bailey, 63 F. 873, 11 C.C.A. 476; Bailey v. Chapman, supra.

A libel printed in a newspaper in one state and distributed in another state by sale of the paper there, when read, is a publication of the libel, and gives a cause of action for libel in the state where it is circulated.

Vitola v. Bee Pub. Co., supra; Cincinnati Times Star Co. v. France, 22 Ky. Law Rep. 1666, 61 S.W. 18; Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S.W. 15.

The liability arises where the injury occurs, and the injury in the case of libel is peculiarly at the county in which the plaintiff resides, if, as is alleged, the defendant has published and circulated the libelous article there, and there it is that the plaintiff is most injured by the publication.

Vicknair v. Daily States Pub. Co., 144 La. 809, 81 So. 324; Tingley v. Times-Mirror Co., 144 Cal. 205, 77 P. 918. See also Weir v. Brotherhood, etc. (Ala.), 129 So. 267; Kenney v. Gurley (Ala.), 95 So. 34; Bridwell v. Brotherhood, etc. (Ala.), 150 So. 338.

The next question raised by the plea in abatement challenges the right of the plaintiff below to join Mrs. Eva Rowe, the distributor of the Jackson Daily News at Indianola, the home of appellant, with the appellee. Where two or more persons engage in the publication of a libel, they are liable jointly and severally.

Miller v. Butler, 52 Am. Dec. 768; Sorenson v. Wood, 123 Neb. 348.

The Mississippi Publishers Corporation is in the business of publishing newspapers for sale and distribution. It not only prints its papers, but it distributes them through the state in various counties. It does that through its distribution manager. It delivered the libelous article to Mrs. Rowe, through its agents; as testified to by Mr. Williams, its circulation or distribution manager, it picks up the papers in Jackson, delivers them to another carrier at Yazoo City, who delivers them to Mrs. Rowe in Indianola, and thus such papers are published in the City of Indianola and in the County of Sunflower only when the papers are delivered by the appellee to its distributors in Sunflower County. It therefore takes the effort and cooperation of both printer and distributor to publish the contents of the papers, which joint action renders them jointly liable.

Staub v. Benthesen, 36 La. 467.

Again the plea in abatement charges that no cause of action is stated in the declaration against Mrs. Eva N. Rowe, because she knew nothing about the libelous article in the paper when she distributed it, and that it was the plaintiff's duty to find this out before filing suit against her. Those who distribute periodicals, either gratuitously or through sale thereof, thereby become publishers of any libel to be found therein, and are equally liable with the proprietor, unless they can prove that they did not know, nor have any reason to suspect, that such periodicals contained any libelous matter, in which case they will be exonerated. The seller of a newspaper containing a libel must therefore assume the burden of proving that he did not know that it contained libelous matter.

Street v. Johnson, 80 Wis. 455; 17 R.C.L. 386, par. 128.

The plea in abatement next charges that Mrs. Eva Rowe was fraudulently joined as a defendant, in order that jurisdiction may be had in Sunflower County, it being the theory of the plea that the plaintiff below either conspired or agreed with Mrs. Rowe that she was not liable, because she did not know the paper contained the libelous article.

The record in this case shows that suit was filed against the two defendants, and service of process had on Mrs. Rowe, and after she had been served with process, she, in about an hour, went to the plaintiff's office to find out what the suit was about, when the plaintiff made the following statement to her: "A. I asked him what this was all about and he said he couldn't advise me because he was the plaintiff. I told him I didn't want him to advise me, I just wanted to know what it was all about and he said he had sued the Jackson Daily Newspaper about an editorial. Q. What did he say about you? A. He said I would not have to worry about that because the Company would take care of me, that he had to sue in this county or another and he decided to sue in this county, he said I would be liable if I read it before I put it out. I told him I didn't know it was in there and didn't know it was in there until he told me."

We respectfully submit that there is not one syllable to show a fraudulent joinder for the purpose of jurisdiction. The suit had been filed and process had been served on Mrs. Rowe when the above statement was made, under the circumstances detailed by Mrs. Rowe. If Mrs. Rowe can establish the fact that she knew nothing of the libelous article at the time she published it, by distributing the papers containing the article, that is a defense she may make if she so desires, and if the jury should so believe then it would be its duty to find for her. But it is a defense to be made which raises a question for the jury to pass on.

The last question raised by the plea in abatement is the unconstitutionality of Section 495, Code of 1930. Counsel do not challenge Chapter 246, Laws of 1940, which fixes the venue in actions against nonresidents or nonresident corporations in the county where such action accrued, and provides for process on an agent in any county in the state.

Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887; Bouchillian v. Jordan, 40 F. Supp. 354; Kane v. State of New Jersey, 242 U.S. 160, 61 L.Ed. 222; Hess v. Pawlaski, 274 U.S. 352, 71 L.Ed. 1091; Henderson v. Maryland, 235 U.S. 610, 59 L.Ed. 385.

We submit that neither Section 495, Code of 1930, nor Chapter 246, Laws of 1940, are unconstitutional, and neither of them denies to a nonresident doing business in this state and enjoying all of the privileges and benefits of the laws of this state any rights possessed by a domestic corporation.

Watkins Eager and Watkins Avery, all of Jackson, Cooper Thomas and P.W. Allen, all of Indianola, for appellee.

This is an appeal from a final judgment of the circuit court of Sunflower County, Mississippi. This appeal involves solely and only the question of venue or territorial jurisdiction of the circuit court of Sunflower County.

Action was brought by appellant for an alleged libelous editorial, allegedly published in the Jackson Daily News by the Mississippi Publishers Corporation. Appellee, defendant below, filed a plea in abatement attacking the territorial jurisdiction of the circuit court of Sunflower County. Proof was had thereon and there was a finding of fact for appellee and the said plea in abatement attacking the venue of the action was sustained and the declaration was dismissed. This appeal is prosecuted from the final judgment dismissing the cause of action upon the sustaining of the plea in abatement.

The declaration in this cause was filed by J.M. Forman, resident of Sunflower County, Mississippi, against two defendants, the Mississippi Publishers Corporation and Mrs. Eva Rowe. It is alleged that the Mississippi Publishers Corporation was a Delaware Corporation authorized to do business in the State of Mississippi, which had appointed a resident agent in Hinds County, Mississippi, pursuant to Mississippi statutes; that Mrs. Rowe was a resident citizen of Sunflower County, Mississippi. Complaint was made of the publication of an editorial in the Jackson Daily News on September 13, 1942, which was alleged to be libelous. It was alleged that the Mississippi Publishers Corporation, appellee, owned and operated a number of newspapers in the State of Mississippi, one of which was the Jackson Daily News, and that it maintained a place of business with offices, agents and servants in Mississippi. It was alleged that Mrs. Eva Rowe was the agent and servant of appellee in the distribution of the Jackson Daily News in Sunflower County, Mississippi, and in Indianola, the home town of plaintiff; that when the Jackson Daily News is printed it is circulated throughout the State of Mississippi; and is circulated in Indianola, Sunflower County, Mississippi, by and through Mrs. Eva Rowe. Complaint is made that appellee, through its agents and servants, did on September 13, 1942, print, distribute and publish in the City of Indianola, Sunflower County, Mississippi, the alleged libelous editorial.

Appellee, Mississippi Publishers Corporation, filed a plea in abatement, entering its special appearance in the cause solely and only for the purpose of bringing in question the territorial jurisdiction of the circuit court of Sunflower County. The position was taken that said circuit court of Sunflower County was without territorial jurisdiction in the cause, it being alleged that appellee had no office or place of business in Sunflower County and no agent or servant in said county and no agent or officer in said county upon whom service of process could be had; that process was had on it in said cause by the clerk of the circuit court of Sunflower County, issuing the same and forwarding it to the sheriff of Hinds County, where it was served upon the statutory designated agent of appellee. That appellee maintained its only office and place of business in the first judicial district of Hinds County in Jackson, Mississippi.

The plea in abatement alleged that the Jackson Daily News containing the publication complained of was not published in Sunflower County, Mississippi, but was composed, published, issued, delivered and circulated from Jackson, first judicial district of Hinds County, Mississippi, at the principal place of business of appellee and that there the newspaper containing the publication complained of was first circulated and first read. It is alleged that if the plaintiff had a cause of action against appellee, that it did not arise or accrue in Sunflower County, but in the first judicial district of Hinds County, Mississippi. That after the issuance, circulation and publication of the same in Hinds County, then its papers were sent by United States mail to subscribers in Sunflower County and some copies thereof delivered to Mrs. Eva Rowe in Sunflower County, who purchased said papers from the appellee and paid therefor. It was alleged that Mrs. Rowe was an independent dealer in newspapers, buying the same from appellee and selling the same in her own name and on her own account and not an agent, servant or employee of appellee. It was alleged that no cause of action was stated against Mrs. Rowe in that it was not charged that Mrs. Rowe had read the editorial complained of in the Jackson Daily News prior to her circulation or distribution of copies thereof; that, as a matter of fact, Mrs. Eva Rowe had no knowledge either express or implied of the contents of the paper on September 13, 1942, and that this fact either was or should have been known to plaintiff-appellant. It was alleged by appellee that no controversy existed between the plaintiff-appellant and Mrs. Eva Rowe; that Mrs. Rowe was not made a party to said cause with a view to prosecuting the same to judgment against her but only for the purpose of conferring jurisdiction upon the circuit court of Sunflower County; that the plaintiff immediately after the filing of the declaration had told the defendant, Mrs. Eva Rowe, that she was only made a defendant so that the cause of action might be brought in the circuit court of Sunflower County, and that she need not worry about the same; that the joinder of Mrs. Eva Rowe as a defendant was illegal and wrongful and that in determining the territorial jurisdiction of the circuit court of Sunflower County, her presence should be excluded; that, also, there was no joint liability between Mrs. Rowe and appellee but that her liability, had there been any, would be separate and distinct; that if Section 495, Code of 1930, should be interpreted so as to give the circuit court of Sunflower County territorial jurisdiction over this appellee for matters appearing in the Jackson Daily News, it would violate the Fourteenth Amendment to the Constitution.

Appellant, plaintiff below, filed a traverse to the plea in abatement of appellee, denying the allegations of fact therein and joining issue on the matters and facts set forth in appellee's plea in abatement. In said traverse it was admitted that the paper containing the article complained of was composed, printed and issued at Jackson in the first judicial district of Hinds County, Mississippi. The position was taken in said traverse that there was jurisdiction of the cause of action in any county of the State of Mississippi where said libelous article was distributed and read, thereby completing the publication of said libelous article.

Mrs. Eva Rowe filed no pleading whatsoever. A default judgment could have been taken against her. No such judgment was taken.

The cause came on for trial upon appellee's plea in abatement to the territorial judisdiction of the court and appellant's traverse thereto. Appellee offered the testimony of two witnesses to sustain the allegations of its plea in abatement. Their testimony was undisputed, appellant offering no testimony whatsoever. At the conclusion of the hearing the trial judge found all the facts presented by the plea in abatement in favor of appellee, the defendant below. The trial judge's finding was a general finding of fact for the appellee upon each and every issue of fact presented by the plea in abatement and, therefore, not only is every question of fact presented resolved now in favor of appellee but every inference, deduction or conclusion which could be made therefrom. If there were two or more reasonable theories which the trial judge could have deducted from the testimony, he was entitled to draw the conclusion and has drawn conclusions in favor of appellee and his judgment thereon is binding on this court.

Stroud v. Loper, 190 Miss. 168, 198 So. 46; Malvezzi v. Gully, 189 Miss. 20, 193 So. 42; Early v. U.S.F. G. Co., 181 Miss. 162, 176 So. 720.

That the evidence would have sustained different findings of fact or that the appellate court might have arrived at different results if determining the matter in the first instance is not a ground for reversal.

Northern Assurance Co. v. J.J. Newman Lumber Co., 105 Miss. 688, 63 So. 209; Davis v. Richardson, 45 Miss. 499.

It is the position of appellee upon this appeal that the presence of Mrs. Eva Rowe as a defendant will be ignored upon the question of territorial jurisdiction for the reason that the appellant did not intend to and could not prove any liability upon the part of Mrs. Rowe and joined Mrs. Rowe as a defendant for the purpose of conferring territorial jurisdiction upon the circuit court of Sunflower County.

It is then the position of appellee that under the venue statutes of the State of Mississippi, the circuit court of Sunflower County had no territorial jurisdiction of appellee because the cause of action did not accrue in Sunflower County; that appellee being a foreign corporation, having appointed a resident agent for the service of process in Mississippi, suit must be brought against it either in the county where it has its office and place of business or in the county where the cause of action accrued (Section 495, Code of 1930, as amended by Ch. 248, Laws of 1940, and Ch. 246, Laws of 1940); that the cause of action for libel, if there was any such cause of action, which is denied, accrued in Hinds County where the alleged libelous editorial was first published, circulated and read; that there is no original cause of action for the later re-circulation in Sunflower County, Mississippi.

If appellee be considered as the sole defendant in the court below, Mrs. Rowe being ignored as joined solely for the purpose of obtaining territorial jurisdiction, then the circuit court of Sunflower County, Mississippi, had no territorial jurisdiction of the cause of action because plaintiff's cause of action, if any, accrued in the first judicial district of Hinds County, Mississippi.

Graham McNeil Co. v. Scarborough, 135 Miss. 59, 99 So. 502; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; Missouri Pacific Transportation Co. v. Beard, 179 Miss. 764, 176 So. 156; Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887; Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193; Bailey v. Chapman, 15 Tex. App. 240[ 15 Tex.Crim. 240]; Begley v. Mississippi Valley Trust Co., 252 S.W. 84; Belo Co. v. Wren, 63 Tex. 686; Bridwell v. Brotherhood (Ala.), 150 So. 338; Cincinnati Times Star v. France, 22 Ky. Law Rep. 1666, 61 S.W. 18; Hoskell v. Bailey, 63 F. 873; Houston v. Pulitzer Pub. Co., 249 Mo. 332, 155 S.W. 1068; Julian v. Kansas City Star (Mo.), 107 S.W. 496; Kenney v. Gurley (Ala.), 95 So. 34; Louisville Press v. Tennelly, 105 Ky. 365, 49 S.W. 15; State ex rel. Publishing Co. v. District Court, 264 P. 155; Tingley v. Times-Mirror Co., 144 Cal. 205, 77 P. 918; United States v. Smith, 178 F. 227; Vicknair v. Daily States Pub. Co., 144 La. 809, 81 So. 324; Vitola v. Bee Pub. Co., 73 N.Y.S. 272; Weir v. Brotherhood, etc. (Ala), 129 So. 267; Code of 1930, Sec. 495, as amended by Ch. 248, Laws of 1940; Laws of 1940, Ch. 246; Code of Oklahoma. Sec. 202; 37 C.J. 19; 16 L.R.A. (N.S.), 1953; 17 R.C.L. 370.

The presence of the defendant, Mrs. Eva Rowe, will be disregarded by this court in the determination of the question of territorial jurisdiction of this cause as far as appellee is concerned.

McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847; Nicholson v. Gulf, M. N.R. Co., 177 Miss. 844, 172 So. 306; Sears, Roebuck Co. v. Van Dolah, 188 Miss. 59, 194 So. 475; Trolio v. Nichols, 160 Miss. 611, 132 So. 750.

Argued orally by Frank E. Everett, for appellant, and by W.H. Watkins, for appellee.


Appellant brought suit against the appellee to recover damages arising from an alleged libel published editorially in its newspaper. The paper is published in the first judicial district of Hinds County, and the plaintiff resides in Sunflower County where it is alleged the paper was circulated. There was joined as a defendant a resident of the local county, who, under a contract with defendant, purchased and sold the paper as a news dealer and whose duties required her to augment its circulation locally by procuring new subscribers. She purchased a limited number of copies and was free to dispose of them as she saw fit, without the right to refund for unsold copies.

A plea in abatement was filed setting up that the local dealer was not an agent or servant of appellee; that she had no knowledge of the contents of the paper; and, for further reasons therein set forth, she was joined as a defendant not for the purpose of seeking a judgment against her but in order to fix venue in Sunflower County. She filed no plea or defense but no judgment in default was taken against her.

We do not detail the evidence by which it was sought to show that no judgment was sought against the local defendant and that her joinder was solely to establish venue locally. We find no reason to overturn the finding of the trial judge that under the evidence this joinder was not of itself effective to fix venue in Sunflower County.

Such proceeding in cases of frivolous or fraudulent joinder is proper where jurisdiction over the remaining defendant is dependent upon the issue raised by the plea. Gasquet v. Fisher, 7 Smedes M. 313, 15 Miss. 313; Trolio v. Nichols, 160 Miss. 611, 612, 132 So. 750, 133 So. 207; McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847.

That this procedure must be limited to such circumstances should not be left to inference. Accordingly, we take occasion to guard against its abuse by denying its propriety in cases where it is sought to thresh out the merits of plaintiff's case by piecemeal. Between those cases where, on the one hand, a defendant is admittedly or obviously joined to confer jurisdiction and where, on the other hand, judgment is confidently and in good faith sought against all defendants upon grounds of prima facie liability, there may hover doubtful cases against which an adverse presumption as to the propriety of this precedure should be indulged.

In view of the fact that the sole remaining defendant is a corporation having its place of business in the first judicial district of Hinds County, the court held that it must be sued, if at all, in that district, and the cause was dismissed without prejudice.

The venue is to be determined from a construction of Code 1930, Section 495, Amended by Chapter 248, Laws 1940: "Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue . . ." The defendant, although a foreign corporation, has appointed a resident agent and is subject to the same rights and disabilities as to venue as are domestic corporations. Sandford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887. The newspaper here involved is edited, composed and issued in Hinds County. It is also, in both a popular and technical sense, there published. The question therefore further narrows to a construction of the quoted statute which requires venue in the county "where the cause of action may occur or accrue."

The range of our examination must be circumscribed by principles involving libel by newspaper. We thus avoid complexities inherent in communications by the telegraph, sealed letters, radio and cinema, some of which have built up a separate body of law, while others are confused with the chaos which always obscures questions which are in a formative state. See F.H. Bohlen, 50 Harvard Law Rev. 725, 728; Restatement, Torts, Vol. 3, Section 577 and caveat, p. 196. Principles indigenous to these activities are unsuitable material for analogy. Nor are principles of common law applicable in view of our statute, to which we now return for construction.

Citation from neither judicial decision nor lexicon is needed to support the view that a cause of action "accrues" when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. The copies of the newspaper containing the alleged libel were published and first circulated about noon in the City of Jackson in Hinds County, the domicile of the publisher. Copies were distributed by conveyance and otherwise to other parts of the state, reaching the home of plaintiff in the late afternoon.

Did the cause of action "accrue" in Hinds County? A negative answer is impossible. If but one copy of the paper had been issued, or if all copies had been restricted to Hinds County, the cause of action would not only have there accrued, but the extent of the damage would have been limited largely to its local effect. If plaintiff were a resident of the county of publication, he would no doubt vigorously assert and be not gainsaid that a cause of action had occurred and accrued there. If, therefore, it accrued where first published, the circulation in Sunflower County may not alter this simple fact, and the only theory upon which the statute may be turned to plaintiff's use is to hold that a new and separate cause of action accrued in Sunflower County. The logical conclusion of this reasoning is that a cause of action, although set in motion in Jackson, multiplies as the widening circles of its distribution expand, creating new causes of action throughout the land and to the uttermost parts of the earth. To argue upon some theory of a reaccrual is to presuppose its original accrual in Hinds County. It is not helpful to consider merely that plaintiff suffered his greatest damage in the county of his residence. He may not ignore the origin of the injury and arbitrarily fix its genesis at the moment when it first invaded its own county. The matter must not be studied with an eye to the advantages or disadvantages to either party in the application of a sound rule. Otherwise, a plaintiff may be left free to choose his own forum, subject to guidance by considerations of local prejudice for and against himself or the defendant. We must assume that the legislature ignored these irrelevancies or devitalized them by establishing a venue which works for an orderly procedure, thereby requiring the courts to hew to this line, indifferent to the fall of its administrative chips on one side or the other.

We do not mean that the cause of action is not enlarged by an expanding circulation. Such fact is always relevant upon the issue of quantum of damages. The situs of plaintiff's damage may be proven to be chiefly in the county of his home where the mutilation of repute would reach its maximum. But we are dealing, not with the centrifugal forces which operate to multiply injury by dissemination, but with the centripetal forces which fix venue at its axis or center of origin.

We must trace our path carefully past those decisions dealing with republication in a legal sense, which is a repetition or republishing by third persons, or a second and distinct writing by the same person. We must distinguish between multiplied damage and multiplied venue. A victim of assault may be injured by repeated blows upon different parts of his body, inflicted by both tooth and nail of his assailant. Yet, it is but one assault, and one composite injury which may not be dissected into as many incidents as there were violent fangs or fingers.

In defamation, the assault is not directly upon the plaintiff but upon his public esteem. The impact is upon those who are custodians of his reputation. Such reputation, which is the sum total of popular regard, is injured as soon as a destructive fire of criticism ignites the edifices in which such prestige is housed. The searing power of such contact may spread rapidly from accumulating sparks and become progressively destructive. Indeed, the analogy to arson is not inapt, and our analysis of the tort here ought to be as free from unnecessary subdivision. Like arson, it consists not in the successive burning of each separate support in the structure, but the blackening and burning by a fire which, although continually reproducing itself, remains nevertheless the same fire. There are not as many fires as there are successive planks, each of which borrows flame from its fellow. Nor may one withhold its characterization as arson until the conflagration reaches the room which he occupies.

A newspaper's power for good or evil is undoubtedly large, but its responsibility for libel is thereby made intensive and not extensive. The principle is implicit in the distinction between the power of, let us say, forty separate horses and forty horsepower. Its arm has a long reach, with power both to write and to broadcast the writing in a thousand identical sheets. It has but one voice, and here spoke but once, even though its echoes reverberated throughout the land. One set of type may reproduce its message in countless facsimiles, but we can not assent to a principle which would multiply the causes of action by the number of its readers. Plaintiff contends that when the paper reached his home county, it was published there and created a new cause of action. Yet, it is not as relevant that it was delivered to a new geographical area as that it reached other readers. So that the contention, after all, is that a new cause of action arises with each reader. Such view leads to many impractical conclusions, not the least untenable of which is that, even if the circulation were restricted to a single county, a plaintiff could enlarge his declaration so as to include as many counts as there were subscribers.

We reach these conclusions not under the questionable guidance of mere a priori reasoning. We find that there is ample support in the decisions of our courts. There seems to be no doubt that the statute of limitations begins to run from the date of the first publication. Means v. MacFadden Publications, Inc. (D.C.), 25 F. Supp. 993; Cannon v. Time, Inc. (D.C.), 39 F. Supp. 660. It is evident that had this newspaper been published on one evening and had reached the county of plaintiff after midnight, the cause of action would accrue on the preceding day the statute of limitations would date therefrom. Since the gravamen of the offense is not the knowledge by the plaintiff nor the injury to his feelings but the degrading of reputation, the right accrued as soon as the paper was exhibited to third persons in whom alone such repute is resident. Cf. McCarlie v. Atkinson, 77 Miss. 594, 27 So. 641, 78 Am. St. Rep. 540. The tort is then complete even though the damage may continue or even accumulate. Wallace v. Southern Express Co., 7 Ga. App. 565, 67 S.E. 694; Galligan v. Sun Printing Pub. Ass'n, 25 Misc. 355, 54 N.Y.S. 471; Odgers, Libel Slander (5 Ed.), p. 375; Gatley, Libel Slander (5 Ed.), p. 623. There is here but one publication and that is where the paper is published. Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, 4 N.Y.S.2d 640; Fried, Mendelson Co. v. Edmund Halstead Ltd., 203 App. Div. 113, 196 N.Y.S. 285. The cause of action accrues where the paper is first published. Houston v. Pulitzer Pub. Company, 249 Mo. 332, 155 S.W. 1068. In Missouri Pac. Transportation Company v. Beard, 179 Miss. 764, 176 So. 156, an auditor for appellant had made a report containing libelous matter against appellee. The superintendent of the company predicating a letter upon this report wrote a letter recommending the discharge of appellee upon the ground set out in the report. We held that plaintiff should have declared not upon the letter but the original report.

The infection by which a trivial harm may become gangrenous or even fatal is not an occurrence or accrual but a consequence. There should be no doubt that if the offending article had been brought to attention in Sunflower County more than a year after its initial publication, suit thereafter would be barred by our statute of limitations.

In Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, the question presented was where the cause of action accrues in a suit for malicious prosecution. It was held that such cause accrued as soon as the last requisite element, the acquittal of plaintiff, came into existence. The other and preliminary factors, the affidavit, arrest and prosecution furnish analogies to the preparation of the editorial, its setting up in type and its impression upon paper.

In O'Malley v. Statesman Printing Co., 60 Idaho, 326, 91 P.2d 357, the facts were similar to those here present, and the contentions identical with those of appellant. The court held that in actions of libel by newspaper, the cause of action arose in the county of the domicile of the newspaper and that as regards venue, the publication was made in such county and the venue thereby fixed. So also in Galligan v. Sun Printing Pub. Ass'n, supra; Murray v. Galbraith, 86 Ark. 50, 109 S.W. 1011, 126 Am. St. Rep. 1078; Houston v. Pulitzer Pub. Company, supra. The last cited case presented the issue squarely and overruled former decisions which were in accord with appellant's contentions.

Age-Herald Pub. Company v. Huddleston, 207 Ala. 40, 92 So. 193, 197, 37 A.L.R. 898, is directly in point and supports the views herein expressed. The contentions of appellant are there fully answered. The court stated: "With respect to the basis of venue here under consideration, it (the statute) reads, more respectively, `in the county where the injury occurred' — not in any county where the injury occurred, nor in any county where the injury was repeated or duplicated merely. This is significant — highly significant we think — of a legislative conception of a single venue to be determined by the locus of a primary wrongful act; and not of a multitude of venues to be created by mere repetitions or secondary extensions of the primary act. . . . We do not see how there can be any conflict of opinion as to the unfairness, injustice, or impolicy of permitting aggrieved persons, in this class of cases only, to select at their pleasure any judicial forum within the state where the political, religious, industrial, moral, or personal predilections of the local citizenship may readily furnish a jury whose biased views will probably be reflected, however sincerely, in a verdict favorable to them."

We do not find adequate support for a contrary view in the authorities cited by appellant. Each must be appraised in the light of the particular venue statutes involved. We need only construe the term "where the cause of action may occur or accrue." The case most strongly relied upon by appellant is Tingley v. Times-Mirror, 144 Cal. 205, 77 P. 918. But the court was applying a statute which fixed venue (1) where the liability arises, or (2) at the principal place of business of the corporation, or (3) subject to the power of the court to change the place of trial as in other cases. The last named alternative deprives the case of its value as authority, for, as pointed out in O'Malley v. Statesman Printing Co., supra, it is apparent that the court justified its acceptance of venue at the county of plaintiff's residence by this omnibus provision. In the Tingley case [ 144 Cal. 205, 77 P. 919], the court placed much emphasis upon the fact that the greatest injury was suffered where plaintiff resided, using the following language: "The liability arises where the injury occurs, and the injury in the case of libel is peculiarly at the county in which the plaintiff resides, if, as is alleged, the defendant has published and circulated the libelous article there; and there it is that plaintiff is most injured by the publication."

It would seem futile to try to justify venue here by a consideration of the area of greatest disparagement. Certainly, if the occurrence of injury is the criterion, venue would be as extensive as circulation. Nor is any decision helpful which merely holds that a cause of action arises "where the paper is circulated" unless it mean one of the two opposites, to wit, wherever the paper is circulated, or where the paper is first circulated. Our statute is concerned not with where the damage occurs but where the cause of action arises or "accrues." It is true that, except in sealed communications, they may be and often are identical, but damage may occur progressively or in fortunate cases be ameliorated, whereas causes of action accrue where the effective cause of the damage occurs. Venue takes no account of either the subsequent mitigation or enlargement of its effect.

We hold therefore that the cause of action accrued, if at all, in the first district of Hinds County. After the elimination of the joint defendant under the plea in abatement, the suit stood alone against a corporation which is domiciled in said county. There being no authority to change the venue of such suit against the corporation to Hinds County (Plummer-Lewis Company v. Francher, 111 Miss. 656, 71 So. 907), it was properly dismissed without prejudice.

Affirmed.


The judgment of the court below should be reversed and the case remanded.

At common law an action for libel would lie in any county in which the libel was published.

Under section 495, Code of 1930, as amended by Laws 1940, c. 248, the venue of a transitory action (in which category an action for libel falls) against a domestic corporation is in the county of the corporation's domicile, or "the county where the cause of action may occur or accrue" at the option of the plaintiff, and if the appellant's cause of action against the Mississippi Publishers Corporation accrued in Sunflower County, the court below erred in dismissing the case.

A cause of action occurs or accrues at the place where it "comes into existence as an enforceable claim." Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, 318. A cause of action for libel comes into existence, and is complete when, but not until, the defamatory matter complained of is published. A libel has been published when, but not until, it is delivered at the instance of its author or publisher to, and read by or to, one other than the person defamed. "Every publication of a libel is a distinct and separate act and a distinct and separate cause of action. For the defendant always has it in his power to restrict the number of persons to whom he will publish a libel — he may show it or hand it to as many or as few as he pleases; and each time that he chooses to publish it he commits a fresh tort." Odgers, Libel and Slander (5 Ed.), 158.

3 Rest. Torts, Comment (b) to Sec. 578; Newell "Slander and Libel," 4 Ed., Sec. 198; Gatley, "Libel and Slander," 3 Ed. 412; 33 Am. Jur., "Libel and Slander," Secs. 227, 234; 56 C.J. 1229; Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A.L.R. 908.

The authorities agree "that every distinct publication of a libel constitutes a distinct cause of action." But as to what constitutes a distinct publication presents a diversity of views. While there is some authority to the contrary, the majority of the courts that have considered this question are in accord with the foregoing views. The several publications of the libel, constituting separate causes of action may be of the first or subsequent editions of a paper, pamphlet or book containing it. I refer to this for the reason that the libel here under consideration appeared in the first edition, and afterwards, on the same day, in the second edition of the appellee's newspaper. If the libel, as claimed by the appellant, was published in Sunflower County this action should not have been dismissed.

Tingley v. Times-Mirror Co., 144 Cal. 205, 77 P. 918; Vicknair v. Daily States Pub. Co., 144 La. 809, 81 So. 324; Id., 153 La. 677, 96 So. 529; Oklahoma Pub. Co. v. Kendall, 96 Okla. 194, 221 P. 762; State ex rel. v. Dist. Court, etc., 129 Okla. 210, 264 P. 154; Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S.W. 15; Cincinnati Times Star Co. v. France, 61 S.W. 18, 22 Ky. Law Rep. 1666; Belo Co. v. Wren, 63 Tex. 686.

The interpretation of this statute involves much more that the mere question of venue, for it affects substantive rights as well, and that evil lurks in the narrow interpretation put on it by affirming associates will appear when we consider:

1. The sales and deliveries of a paper, pamphlet or book containing a libel may continue for a long period of time, and if a cause of action accrues therefor solely on the sale or delivery of the first copy thereof, an action for the libel would be barred by limitation, as my affirming associates say, although the sales and deliveries of the paper, pamphlet or book containing it continued until shortly before, or even after, action on the first sale or delivery is barred.

2. A newspaper, pamphlet or book printed in a foreign state or county may be first published there, and thereafter delivered to and read by persons in Mississippi, as was the case in Ned Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351, this day decided. In such a case, according to the opinion just rendered, no cause of action accrues for the publication of the paper, pamphlet or book in Mississippi, but only for its publication in the foreign state or country where it was printed and first published; from which it follows that whether the matter complained of was libelous at all, whether it was privileged, and the damages, if any, to be allowed therefor, would be governed, not by the law of Mississippi, where the injury to the person defamed, in fact, occurred, but by the law of such state or country. Under this interpretation of the statute a resident of Mississippi, whose reputation for all that enters into a life's value may have been ruined by the publication of matter concerning him, first in a foreign state or country, and then in Mississippi, where it would be actionable, but which is either permitted by or privileged under, the law of the foreign country, where it was first published.

3. The person defamed cannot usually ascertain who first received and read the libel, and therefore begins an action therefor at his peril. He may, particularly when the libel appears in a pamphlet or book, know only that it was received and read by A in B county. He institutes an action therefor in B county, based on the publication to A, but at the trial is confronted with evidence, which he cannot then disprove, that the pamphlet or book containing the libel was first delivered to and read by C in D county. To permit the action to fail for that reason reduces the statute to an absurdity.

I am not here concerned with the question of damages flowing from several publications of a libel, or whether all of such damages must be recovered in the same action; for that question does not here arise.

One other observation in this connection is that the evidence does not disclose that this libel was published, within the meaning of the law of libel, in Hinds County, i.e., that a copy of a paper containing it was delivered to and read by or to a person there. All the evidence discloses as to a publication of this libel in Hinds County is that the paper containing it "was first read in Jackson." To meet the requirement of publication the evidence should disclose that the paper was delivered to, and read by or to, a person not defamed by it, and who was not responsible for its composition and circulation.

This libel having been published in Sunflower County, this action therefor was properly brought there.

I come now to the appellee, Mrs. Eva Rowe. The evidence discloses that Mrs. Rowe distributed copies of her co-defendant's paper containing this libel without knowing that it appeared therein. Consequently she incurred no liability therefor. Nevertheless, the action against the Mississippi Publishers Corporation should not have been dismissed for that reason. The appellant had the right, under section 495, Code of 1930, to join her as a co-defendant herein, and thereby vest the court below with jurisdiction of the case, although it should develop on the trial that she had incurred no liability for the circulation of this libel, provided she did so in good faith, and not fraudulently, for the purpose of vesting the court below with jurisdiction of the case. Trolio v. Nichols, 160 Miss. 611, 132 So. 750, 133 So. 207. The evidence does disclose that the appellant joined Mrs. Rowe as a co-defendant of the Mississippi Publishers Corporation for the purpose of having the case tried in Sunflower County, as he had the right in good faith to do, but it does not appear therefrom that he knew that when she distributed the paper she did not know of the libel appearing therein. By distributing the paper Mrs. Rowe became prima facie liable for the libel therein, and the burden of disproving which was on her or her co-defendant, and the appellant was under no duty before beginning this action to inquire of her whether she knew of the libel therein when she distributed the papers containing it.

I am requested by my Brother ROBERDS to say that he concurs in this opinion.


Summaries of

Forman v. Miss. Publishers Corp.

Supreme Court of Mississippi, In Banc
Jun 14, 1943
195 Miss. 90 (Miss. 1943)

holding that the cause of action against the publisher accrued in county of first publication and circulation and “was not enlarged by an expanding circulation”

Summary of this case from Fairley v. Espn, Inc.

establishing Mississippi's "single publication" rule

Summary of this case from Maas v. City of Ocean Springs

In Forman v. Mississippi Publishers Corporation, 194 Miss. 90, 14 So.2d 344 (1943), the Mississippi Supreme Court adopted, for purposes of venue in defamation actions, the single publication rule.

Summary of this case from Wildmon v. Hustler Magazine, Inc.

In Forman v. Mississippi Publishers Corporation, 195 Miss. 90, 14 So.2d 344 (1943) the court held that the gravamen of an action for libel is the degrading of the reputation of the victim and accrues as soon as the newspaper containing the article is exhibited to a third person.

Summary of this case from Edwards v. Associated Press
Case details for

Forman v. Miss. Publishers Corp.

Case Details

Full title:FORMAN v. MISSISSIPPI PUBLISHERS CORPORATION

Court:Supreme Court of Mississippi, In Banc

Date published: Jun 14, 1943

Citations

195 Miss. 90 (Miss. 1943)
14 So. 2d 344

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