Magness v. Pledger

• Citation: 334 P.2d 792
• Decision Date: 06 January 1959
• Docket Number: No. 37995,37995
• Parties: Noble MAGNESS, Plaintiff in Error, v. O. W. PLEDGER et al., Defendants in Error.
• Court: Supreme Court of Oklahoma

Page 792

334 P.2d 792

1959 OK 1

Noble MAGNESS, Plaintiff in Error, v. O. W. PLEDGER et al., Defendants in Error.

No. 37995.

Supreme Court of Oklahoma.

Jan. 6, 1959.

Syllabus by the Court

Where a libelous statement is made and published in a written instrument purporting to be a petition to the Attorney General to investigate and prosecute a named individual, such statement is not privileged under the statute defining a privileged publication or communication (12 O.S.1951 § 1443), and it is error for the court to sustain a demurrer to plaintiff's petition to recover damages for the libel and dismiss his action on the ground that the statement is privileged.

Appeal from District Court of LeFlore County: Clyde M. Followell, Judge.

Action by Noble Magness against O. W. Pledger and others to recover damages suffered by alleged libelous statement published by defendants by a petition addressed to the Attorney General of Oklahoma charging that plaintiff was guilty of a felony and asking for an investigation. Demurrer to plaintiff's petition sustained and case dismissed when plaintiff declined to plead further. Judgment reversed and cause remanded to district court with directions to vacate the order dismissing the action and overrule the demurrer to plaintiff's petition.

Joe K. Page, Poteau, for plaintiff in error.

William D. Mobley, Poteau, for defendants in error.

CARLILE, Justice.

This action to recover damages for libel was filed in the District Court of LeFlore County against O. W. Pledger and others, who filed a joint general demurrer to plaintiff's petition. The demurrer was sustained by the trial court on the ground that the libelous matter alleged came within the rule of absolute privilege under the law of Oklahoma. Plaintiff excepted to the ruling of the court, declined to plead further and his case was dismissed. Plaintiff gave notice of appeal upon transcript of the record. We shall refer to the parties as they appeared in the trial court.

Plaintiff attached to his petition as Exhibit A a copy of the alleged libelous matter said to have been maliciously composed, signed, circulated and published by them and which plaintiff alleged to be false, unprivileged and libelous per se and by the publication of which plaintiff was exposed to public hatred, contempt and ridicule, and deprived him of public confidence and injured him in his reputation and business in the amount of $300,000.

Exhibit A referred to is as follows:

'Petition to the Attorney General

'The undersigned residents of the vicinity of Hodgens, Oklahoma, located in LeFlore County, Oklahoma, respectfully call your attention to the fact that we are unable to get any co-operation from our County Attorney, Mr. Joe K. Page, in the matter of prosecuting Mr. Noble Magness, who is guilty of embezzlement. The said Mr. Magness, while acting as a local agent of one Mike Theodore, who was formerly a non-resident property owner in this area of LeFlore County, Oklahoma, mishandled and misappropriated funds of Mr. Theodore in the amount of several thousands of dollars. Mr. Magness has never made a proper accounting to Mr. Theodore. Mr. Theodore is now a resident of this area of Oklahoma and is making us a good citizen and neighbor. We hate to see a man come in here from the North and try to help develop our state and have him meet with such a misfortune and then to have our elected officials ignore his efforts to protect his interest.

'With due respect, we most urgently request you to look into this matter and take whatever steps you deem necessary to cause justice to prevail. It is our opinion that you should send a member of your staff down here and work this thing out.'

The above exhibit was signed by all of the forty-three defendants who were served with summons except four who were not found in LeFlore County. 12 O.S.1951 § 1441 defines libel as follows:

'Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injury him in his occupation * * *.'

The petition to the Attorney General charges the plaintiff with being guilty of embezzlement, a felony, and is clearly libelous per se unless it is privileged or proven true. Hargrove v. Oklahoma Press Pub. Co., 130 Okl. 76, 265 P. 635, 636 holds:

'A publication is actionable per se when the language used therein is susceptible of but one meaning, and that an opprobrious one, and the publication on its face shows that the derogatory statements, taken as a whole, refer to the plaintiff, and not to some other person.'

Plaintiff contends and defendants concede and we agree that this appeal depends upon the following question: If plaintiff's Exhibit A attached and made a part of his petition falls within the rule of absolute privilege then the demurrer to plaintiff's petition was properly sustained. If the alleged libelous matter was not absolute privileged then the lower court erred as a matter of law in sustaining the demurrer.

It is claimed by plaintiff that Exhibit A in plaintiff's petition containing the alleged...