This is an appeal from an order granting summary judgment in favor of defendants on the ground that the complaint for libel was barred by the statute of limitations. ORS 12.120(2). 1
Plaintiff and defendant Gumsey were both employed by defendant Oregon Trail Financial Services, where Gumsey was plaintiffs supervisor. The complaint alleged that in March, 1978, Gumsey sent a memorandum to Bankers Life Company, an insurance underwriter for which Oregon Trail Financial Services acted as agent, which contained defamatory statements and caused plaintiff damage. The answer admitted the relationship of the parties and the mailing of the memorandum and denied the balance of the complaint. Defendants further raised affirmative defenses of qualified privilege, the statute of limitations and the truth of the assertions in the memorandum. Plaintiff filed no reply.
Defendants thereafter moved for summary judgment on the statute of limitations defense. They attached a copy of the memorandum in question and an affidavit from the person to whom it was addressed stating that she had received and read the memorandum on March 29, 1978. Defendants contended that plaintiff’s complaint was barred because the publication had occurred on that date and the complaint was not filed until March 30,1979, more than one year later.
Plaintiff responded by memorandum opposing summary judgment and argued (1) that the offending communication had been made with the intent and expectation that it would be forwarded to the main Bankers Life Company office in Iowa, that defendants were therefore legally responsible for this republication, and that the memorandum did not arrive in Iowa *934 until sometime after March 30, 1978; and (2) that, in any event, plaintiff’s cause of action did not accrue until sometime in April, 1978, following his discharge, when he learned of the existence of the defamatory document, and that the statute of limitations did not begin to run until that time. He appended to his memorandum statements made by him on deposition that he did not learn of the statement until April, 1978, and excerpts from defendant Gumsey’s deposition indicating that Gurnsey assumed that the memorandum would be forwarded to the head office. Plaintiff further attached an affidavit by an investigator hired by plaintiff’s attorney stating that he had investigated the matter and learned that the retransmitted memorandum did not arrive in Iowa until sometime after March 30, 1978.
Defendants argued (1) that the affidavit of the investigator did not evidence personal knowledge and was therefore impermissible hearsay, (2) that the so-called discovery rule does not apply to defamation actions of this kind, and (3) that the single publication rule applies to give plaintiff a right of action dating only from the first publication.
We conclude for the reasons which follow that the discovery rule is applicable in this case and that plaintiff’s deposition demonstrates that an issue of fact exists, rendering summary judgment inappropriate. Former ORS 18.105(3).
The discovery rule was first announced in
Berry v. Branner,
*935 "Actions at law shall only be commenced within the period prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.” 2
After examining the legislative intent with respect to the meaning of the word "accrued,” the court concluded that the statute of limitations was intended to preclude the filing of stale claims where the plaintiff "had slumbered for the statutory period during which process was within his reach.”
Since that time, the discovery rule has been made applicable to a variety of other claims.
Frohs v. Greene,
Defendants correctly assert that, as a general rule, a cause of action for libel accrues for statute of limitations purposes on the date of publication.
Bock v. Collier,
Most directly on point is
Kittinger v. Boeing Co.,
21 Wash App 484,
The memorandum here was confidential in nature and the initial publication was not of the type that plaintiff would be presumed to have known about, even in the exercise of reasonable diligence. Although, technically, at the time of the initial publication of confidential communications in employment contexts some damage occurs, which gives rise to a right of action, in many instances there is no reason for plaintiff to suspect such a publication until he is discharged, and perhaps not even then. Kittinger v. Boeing Co., supra. The statutory analysis in Berry v. Branner, supra, is equally applicable to the present statute of *937 limitations, ORS 12.120(2), which is part of the chapter to which ORS 12.010 applies. We conclude, therefore, that the excerpt from plaintiff’s deposition is sufficient to create a fact question as to when plaintiff discovered the existence of the memorandum and whether he was diligent in this respect.
Defendants contend that plaintiff pleads no facts which would entitle him to raise the discovery question. This contention was not made in the trial court and therefore is not before us on this appeal; there is no contention that defendants were surprised thereby. We make no ruling with respect to defendants’ other contentions.
Reversed and remanded.
Notes
The present text of ORS 12.010 reads:
"Actions shall be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.”
New York has twice applied its limitation statute without discussion of a discovery rule.
Berger v. Gilbert,