Age-Herald Pub. Co. v. Huddleston

• Decision Date: 12 November 1921
• Docket Number: 6 Div. 30.
• Parties: AGE-HERALD PUB. CO. v. HUDDLESTON.
• Court: Alabama Supreme Court

92 So. 193

207 Ala. 40

AGE-HERALD PUB. CO. v. HUDDLESTON.

6 Div. 30.

Supreme Court of Alabama

November 12, 1921

Rehearing Denied Dec. 22, 1921.

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Action by George Huddleston against the Age-Herald Publishing Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sayre and Gardner, JJ., dissenting.

Miller & Graham and Hugh Morrow, all of Birmingham, and Kelton & Son and Nash & Fendely, all of Oneonta, for appellant.

Weakly & Rice and John W. Altman, all of Birmingham, for appellee.

SOMERVILLE J.

The complaint is in nine counts, each of which, in statutory form, declares upon a separate libel published by defendant of and concerning the plaintiff, "in a newspaper published at Birmingham."

The action is brought in the circuit court of Blount county, and venue jurisdiction of the court is challenged by eight several pleas in abatement, each of which sets up facts from which it concludes that the venue of the action is improperly laid in Blount county, and to each of which a demurrer was duly sustained.

It is not necessary to state in detail the allegations of all of these pleas, and the grounds of demurrer thereto, but it will suffice to say that the meritorious question raised by the demurrers and their sustention by the trial court is whether the act of defendant in mailing libelous copies of its paper at Birmingham, addressed to and received by subscribers in Blount county, amounted per se to a publication or circulation by defendant of those papers in Blount county, so as to constitute an injury which occurred in that county within the meaning of section 6112 of the Code, which permits the venue of actions against corporations for personal injuries to be laid "in the county where the injury occurred." It is conceded by counsel for plaintiff that the venue as here laid depends solely upon the consideration above stated, and other bases of venue need not be noticed since all of them are excluded by the allegations of the pleas.

Defendant's contention, of course, is that the printing, publishing, and mailing of its papers at Birmingham, though it resulted proximately and necessarily in their circulation and exposure in other counties, including Blount, effected a complete publication of the alleged libels in Jefferson county, and that their subsequent circulation and exposure in other counties were not separate publications of the libels constituting independent and separately actionable wrongs but were mere elements of damnum growing out of the primary wrong which occurred in Jefferson county, where both plaintiff and defendant reside, and where the venue must therefore be laid.

Or, if several copies of the original issue, as published at Birmingham, have been subsequently caused to circulate in Blount county by the act of defendant in mailing them at Birmingham, nevertheless the injury-injuria, not damnum-occurred in Jefferson county within the meaning of section 6112 of the Code, which lays the venue "in the county where the injury occurred."

The questions thus presented have never been considered by this court, but, on common-law principles, and under some venue statutes, the authorities in general seem to support the view that an action for libel may be brought in any jurisdiction where the libelous matter was published or circulated.

In 25 Cyc. 433, it is said:

"In the case of libel, it is held that it is not the jurisdiction in which the article is printed, but the jurisdiction in which it is published and circulated, that determines whether the words used are actionable. So the general rule is that an action for libel may be brought and tried in any county in which the libel was published or circulated."

And in 18 Am. & Eng. Ency. Law (2d Ed.) 119:

"An action or prosecution for a libel may, as a general rule, be brought either in the jurisdiction where the defendant resides or is found, or in any jurisdiction where the defamatory matter was published or circulated."

Those texts are well supported by the cases cited in the notes.

The cases supporting the view that an action for libel against a newspaper for libelous matter published by it may, under venue statutes of varying phraseology, be brought in any county where the paper is circulated, regardless of where it is printed, published, and sent out for distribution, are collected in the notes to the following cases: Graham v. Mixon (Cal.) L. R. A. 1918F, 1023, 1026, 1029; State v. Piver (Wash.) Ann. Cas. 1915A, 695, 697; State v. Huston (S. D.) 9 Ann. Cas. 381. Very full discussions of the subject will be found in Julian v. K. C. Star Co., 209 Mo. 35, 107 S.W. 496, and State v. Moore, 140 La. 281, 72 So. 965, in both the majority and the minority opinions.

In the Julian Case, supra, under a statute permitting an action to be brought against corporations "in the county in which the cause of action occurred," it was held by the majority of the court that a libel suit against a newspaper could be maintained in any county where the newspaper was circulated. The following from the opinion of Valliant, J., is fairly representative of the reasoning upon which that view of the question is supported:

"When therefore the defendant sent its newspaper containing the article complained of into Platte county and there gave it out to the public, if the article was libelous in character what element was lacking to constitute a cause of action then and there? Let us take the definition of 'cause of action' as given in the brief of defendant's learned counsel; it is the existence of 'every fact which is material to be proved to entitle the plaintiff to recover.' What fact essential to the plaintiff's right of recovery did not occur in Platte county? But it is said that the publication first occurred in Jackson county and that the plaintiff's right of action accrued there if at all. We agree with counsel for defendant that the one issue of the newspaper, though it may have been of many thousand copies distributed in many different counties, gave but one cause of action, but to reach that conclusion we must say that there was but one publication. If we should say that the publication in Jackson county was a publication distinct from that in Platte county, then we would have to say that there were more than one publication and more than one cause of action. But there was but one publication-one utterance-and though some of the papers did not reach their destination as soon as others, yet they all emanated from the one act and all constituted but one libel, if libel at all. It is the publication of the libel, not the printing of it, that gives the right of action. When the publisher gives out his paper to be circulated not only in one but in many counties and it is circulated as he intended, he is deemed in law to have published it in all counties, and the act is no less a publication in one county than another.

"If the defendant's newspaper was, in obedience to defendant's purpose, given public circulation in Platte county and if it contained a libel of the plaintiff, the plaintiff's cause of action accrued in that county."

The opposing view is well stated in the dissenting opinion of Graves J. in which Lamm, J., concurred:

"It is broadly contended that under section 997 a plaintiff in this one class of cases has the right to select the forum of his trial and locate it in either of the 114 counties of the State, provided copies of the paper reach all of them. That he can leave the county of his residence, which is likewise the residence of the defendant, and where the first publication is made, and pick from the 114 counties one where the citizenship is such that, to his mind, indicates practical results in his suit. ***

"We can give to this statute a reasonable construction and one which violates no constitutional mandates. Every letter of the statute can be enforced by saying, under the admitted facts of this case, the cause of action accrued in Jackson county, where it stands admitted that the paper containing the article alleged to be libelous was first given out to the reading public, and thereby first published. Or if the first publication be in some other county, let the action be brought there. Had we not better read into this statute words [which] would be consonant with a reasonable construction, than read into it, as first above indicated, words which make it abhorrent to reason, right justice and fairplay?

"Whilst the law broadly stated says that each publication constitutes a cause of action, yet the courts hold, as was admitted in the argument of the case and in respondent's brief, that but one suit can be brought on the same libelous publication, no matter in how many places, or at how many times it is published, i. e., given to the reading public.

"The extent of the publication may be shown to enhance the damages, and the suit thereby draws to itself all alleged causes of action, and makes of them all the cause of action mentioned by the statute. The courts have made this rule of law, because to permit a great multiplicity of suits for the one libelous article would be to shock the sense of justice and right.

"Then why not, in the interest of a construction of this statute, which would comport with justice and right, say that the cause of action mentioned therein, in cases of libel, means the cause of action accruing by the first publication of the article? We believe that we should so construe this statute, and for that reason this suit should have been brought in Jackson county and not elsewhere."

In State v. Moore, supra, under a constitutional provision requiring that all criminal trials "shall take place in the parish in which the offense...