Kilian v. Doubleday & Co., Inc. Sup. Ct. Pa.,

367 Pa. 117 (1951)

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Nature of the Case

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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 present 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 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.