Before MAJOR, Chief Judge, and KERNER, and FINNEGAN, Circuit Judges.
On August 4, 1943, the appellant, Gerald B. Winrod, brought this suit to recover damages arising from the publication and distribution of an alleged libelous article in a weekly magazine known as "Liberty," published and distributed by the appellee corporation, MacFadden Publications, Inc. The action was originally filed in the Superior Court of Cook County, and because of diversity of citizenship, was removed to the District Court of the United States for the Northern District of Illinois, Eastern Division.
The complaint alleged that during the month of August 1942, the defendant published its certain issue of said Liberty magazine, which issue bore date of August 8, 1942, copies of which issue were distributed and sold by the defendant in Cook County, Illinois, in all of the states of the United States, and in many foreign countries; that in said issue of said Liberty magazine, bearing date of August 8, 1942, defendant composed, published and distributed, concerning the plaintiff, "false, malicious and defamatory matter." The alleged defamatory matter is set forth in the complaint, and it is charged that the defendant meant thereby, and maliciously intended, and was understood to mean by persons reading the said article, that the plaintiff was disloyal to the United States and was a traitor to his country, and that he was a Nazi agent. Plaintiff prayed judgment for $100,000 actual damages and an additional $100,000, punitive damages.
Defendant answered and set up:
First, The Statute of Limitations, Chap. 83, Sec. 14 of Illinois Revised Statutes of 1943, alleging that copies of the August 8, 1942 issue of Liberty magazine were placed in the United States mail for delivery to regular subscribers on July 18, 1942, and were placed on sale and sold at newsstands and periodical counters throughout the United States on July 29, 1942, more than one year prior to August 4, 1943 when the action of plaintiff was filed;
Second, That the publication complained of is not actionable "per se," and
Third, That the allegations on the merits in the complaint are not true.
After filing this answer the defendant moved for a summary judgment, which motion was denied by the District Court on September 17, 1945. See Winrod v. MacFadden Publications, Inc., D.C., 62 F.Supp. 249.
In that decision, 62 F.Supp. 249, the District Court held that so far as the complaint was based upon the original publication by the defendant, or with reference to sales of the August 8 issue of Liberty magazine by persons other than defendant, the complaint would not lie. The court said, 62 F.Supp. on page 253:
"* * * the only cause of action upon which plaintiff may base his suit is upon the copies sent out subsequent to August 4, 1942. Upon that question the plaintiff's cause of action must stand, and upon that question plaintiff is entitled to a trial herein.
"The order of the court will be that the motion for summary judgment be denied, with leave to plaintiff if he so desires to amend his complaint."
On October 14, 1948, the plaintiff filed an amendment to his complaint, which so far as it is material on this appeal, alleged: "That in the months of July and August, 1942, the defendant published its certain issue of said Liberty magazine, which issue bore date of August 8, 1942, and sold and distributed copies of said issue of Liberty magazine in Cook County, Illinois, in all of the states of the United States, and in many foreign countries; that between July 29 and August 4, 1942, inclusive, and on each of said days, and for several weeks thereafter, the defendant by itself and its agents and employees and through dealers and distributors, distributed and sold, and procured and caused to be distributed and sold, large numbers of copies of said Liberty magazine to diverse and sundry persons in Cook County, Illinois, and in each of the states of the United States, and in the Dominion of Canada, and in many foreign countries; that in said issue of said Liberty magazine bearing date of August 8, 1942, the defendant composed, published and distributed concerning the plaintiff false, malicious and defamatory matters * * *."
Defendant amended its answer, adopting its former answer in its entirety and specifically ...