KILIAN V. DOUBLEDAY & CO., INC.
Sup. Ct. Pa., 367 Pa. 117 (1951)
NATURE OF THE CASE: Kilian (P) appealed a judgment from the Philadelphia County Court of
Common Pleas that rendered a verdict in favor of Doubleday (D) in P's action for libel, and
from the denial of P's motion for a new trial.
FACTS: At the American University in Washington a course in English was conducted by Don
M. Wolfe, the students being disabled veterans of World War II. The writing course was to be
essays or stories about their personal experiences in the war. Dr. Wolfe conceived the idea
of having these stories published in book form, and, after an original publication by
another concern, he entered into a contract with D for that purpose. Fifty-three students
contributed at least one article. The book was published under the title 'The Purple
Testament.' It was advertised as consisting of 'the native eloquence of absolute honesty',
and as constituting 'the fragments of their [the authors'] own intimate experiences'. About
9000 copies were sold and distributed throughout the United States. Among the articles was
one by Joseph M. O'Connell which gave rise to the resent suit. O'Connell was seriously
injured during the Normandy invasion and was hospitalized about 12 miles from Lichfield,
England, where there was a large replacement depot. He wrote about narrated incidents said
to have occurred at the Lichfield camp which were described to him by individuals who had
allegedly witnessed them. Dr. Wolfe twice returned drafts with the suggestion that O'Connell
should use 'more descriptive detail', that he should 'make it more vivid', that it 'did not
have in it the sights, sounds and bits of conversation necessary to make the story
readable'. In order to 'make it more vivid', he wrote in the first person, purporting that
the incidents he narrated occurred under his own personal observation and in his own
experience. Many of the incidents which O'Connell wrote about involved Colonel Killian (P),
the commanding officer. P was described as a dictator who imposed cruel and unusual
punishment on soldiers. Described were soldiers who were repeatedly beaten, whipped, lashed,
and clubbed. At the end of the article a footnote was appended which Dr. Wolfe himself had
added: 'On August 29, 1946, the Associated Press reported that Colonel James A. Kilian was
convicted 'of permitting cruel and unusual punishment of American soldiers.' He was
reprimanded by the military court and fined $500. -- Editor.' P was in fact charged with
authorizing, aiding and abetting the imposition of cruel, unusual and unauthorized
punishment upon prisoners in confinement at the depot of which he was the Commanding
Officer. The punishments referred to were itemized in the charge. A second specification was
that he knowingly permitted the imposition of such punishments. As to the first
specification -- authorizing, aiding and abetting -- he was acquitted; as to the second
specification -- knowingly permitting -- he was acquitted of knowingly permitting and found
guilty merely of permitting; in other words, he was convicted of neglect, but not of actual
wrongdoing or of acquiescing in what occurred. Moreover, many of the alleged punishments
specified in the charge as having been 'permitted' were deleted by the court because they
were not supported by the evidence. D pleaded justification on the ground that the
publication was a true and accurate account of events which were observed by the author of
the article in question. D could not substantiate that any of the stories were true. The
court instructed the jury that if the stories were substantially true, D would not be
liable. D got the verdict. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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