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Wheeler v. Dell Publishing Co.

March 12, 1962


Author: Kiley

Before KNOCH, CASTLE, and KILEY, Circuit Judges.

KILEY, Circuit Judge.

This is a diversity suit for damages for libel and invasion of privacy, growing out of the novel and motion picture "Anatomy of a Murder." The trial court entered summary judgments for defendants, and plaintiffs have appealed.

Hazel Wheeler is the widow, and Terry Ann Chenoweth the daughter, of Maurice Chenoweth, who was shot and killed by a Lieutenant Peterson for the "rape" of Peterson's wife. Peterson was tried for murder at Marquette, Michigan in 1952. A jury acquitted him upon the defense of insanity.

The novel "Anatomy of a Murder", by Robert Traver, is the fictionalized version of the Chenoweth trial. It was originally published in June, 1957. Robert Traver is the nom de plume of John Voelker, who wrote the book when Associate Justice of the Supreme Court of Michigan. Voelker was Peterson's attorney at the Chenoweth trial.

In April, 1959, this best-seller was published as a "paperbound edition" by Dell Publishing Company. Later, Columbia Pictures Corporation made a motion picture based on the novel. In the novel and motion picture, Lieutenant Manion shoots and kills Barney Quill for the "rape" of Manion's wife, is tried for murder and acquitted on the ground of insanity.

Hazel Wheeler sued Dell for libel in Count I; and both she and Terry Ann Chenoweth sued Dell for invasion of privacy in Count III, and Columbia Pictures for libel in Count II and invasion of privacy in Count IV.

Hazel Wheeler alleges, in Count I against Dell, that she was defamed by being identified with the fictional Janice Quill, Barney's wife, described in the novel as using foul language and as having other "unsavory characteristics." She and her daughter Terry Ann allege, in Count II against Columbia, that the motion picture identifies Terry Ann with the fictional Mary Pilant, the illegitimate daughter of Barney Quill, and carries the imputation that Hazel Wheeler was the mother of a child born "out of wedlock." Both plaintiffs allege, against Dell and Columbia, in Counts III and IV respectively, that by virtue of the novel*fn1 and motion picture they have, without their consent, been subjected to unfavorable and unwanted publicity, and their privacy invaded, solely for the "monetary gain" of Dell and Columbia.

Dell moved to strike Counts I and III, on the ground, among others, that the novel was published in April, 1959, and that the Wheeler suit, not commenced until June 10, 1960, was therefore barred by the one year statute of limitations;*fn2 and that a joint cause of action on which no relief could be granted was stated in Count III. Columbia filed a similar motion. February 10, 1961, plaintiffs filed their "Second Amendment" to the complaint, which eliminated any basis for these motions, or for Columbia's renewed motion, except as to the statute of limitations.

The amendment enlarged Counts II and IV by allegations that the original showing of the motion picture was June 29, 1959 and was shown thereafter "to at least June 10, 1960." Columbia did not request a more particular statement of the general allegations, of the exhibitions of the motion picture, after June 29, 1959.

The first question is whether Hazel Wheeler's suits are barred by the statute of limitations.

Illinois law governs this diversity suit, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Crosby v. Time, Inc., 254 F.2d 927, 929 (7 Cir., 1958); and the single publication rule*fn3 had been adopted by Illinois courts when the causes of action arose.*fn4 Winrod v. Time, Inc., 334 Ill.App. 59, 78 N.E.2d 708 (1948); Winrod v. McFadden Pubs., 187 F.2d 180 (7 Cir.), cert. denied, 342 U.S. 814, 72 S. Ct. 28, 96 L. Ed. 616 (1951).

The single publication rule does not help Columbia, which claims its benefit. There was an issue of fact made by the affidavits with respect to the first exhibition of the motion picture. We presume that the district court properly took the date June 29, 1959, asserted by Hazel Wheeler, in entering summary judgment against her. If so, even under the single publication rule, her actions filed June 10, 1960 were not barred. We conclude her suits were not barred as to Columbia.

Dell also claims the benefit of the rule, and if it applies in the way it contends, the statute of limitations would run from April 7, 1959, the date of first publication, to bar the Wheeler suit against Dell. We think the rule does not apply to embrace in the April 7, 1959 printing the several reprintings by Dell thereafter. For that reason we conclude that Hazel ...

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