Doyle v. Oklahoma Press Pub. Co.

• Decision Date: 04 December 1951
• Docket Number: No. 34679,34679
• Citation: 242 P.2d 155,206 Okla. 254
• Parties: DOYLE v. OKLAHOMA PRESS PUB. CO. et al.
• Court: Oklahoma Supreme Court

Page 155

242 P.2d 155

206 Okla. 254

DOYLE v. OKLAHOMA PRESS PUB. CO. et al.

No. 34679.

Supreme Court of Oklahoma.

Dec. 4, 1951.

Rehearing Denied Jan. 15, 1952.

Application for Leave to File Second Petition for Rehearing

Denied April 1, 1952.

Syllabus by the Court.

1. Statute allowing amendment of pleadings in order to promote justice is remedial in purpose and should be liberally construed.

2. Indetermining whether an amended petition alleges a 'new cause of action,' the test is whether the cause of action remains the same in substance, notwithstanding the difference of specifications.

3. An amendment which merely explains, amplifies, elaborates, or gives greater precision to the allegations of the original petition is not the statement of a new cause of action.

L. W. Wiley, Muskogee, for plaintiff in error.

Chas. A. Moon, Muskogee, for defendants in error.

CORN, Justice.

Plaintiff, John H. Doyle, sued to recover damages, alleged to have resulted from defendants' publication, by their agent and editor Stone, of libelous matter concerning plaintiff. The petition alleged publication of the libelous matter May 1, 1948, in the Muskogee Daily Phoenix, a newspaper of general circulation owned and published by the defendant corporation, which was under the ownership and control of the other named defendants. The first cause of action alleged malicious publication of false and defamatory matter personally damaging plaintiff; the second cause of action realleged these matters and sought damages for having thereby caused plaintiff's defeat while he was a candidate for public office.

Defendants' demurrer was overruled and March 8, 1949, they answered admitting corporate existence, ownership and publication of the Daily Phoenix and that Stone was the editor and employee, but denying all other allegations. All allegations of the second count were denied except those admitted as above set out. The case was set for jury trial June 23, 1949.

June 8, 1949, defendants moved to strike the case from the jury docket because publication was not in the Muskogee Phoenix as alleged but in fact was in the Muskogee Times-Democrat; having answered denying the petition plaintiff could not make proof, under the pleadings, of publication in the Times-Democrat, since the fact publication was not in the Daily Phoenix was a complete defense; if plaintiff should be permitted to amend defendants would be entitled to plead thereto and the defense would be different; or, if permitted to amend defendants could move to strike on the grounds the amendment would constitute a new cause of action. The cause was stricken and continued upon defendants' motion.

June 21, 1949, plaintiff was permitted to amend his petition to show the matter complained of had, in fact, been published in the Times-Democrat. Defendants moved to strike on the grounds the cause of action alleged constituted an entirely different action from that originally plead. This motion was overruled and defendants given time to plead. Defendants then demurred to the amended petition on the grounds both causes of action set forth therein were barred by the statute of limitations, 12 O.S.1941 § 95, subd. 4, since it appeared the article complained of was published May 1, 1948. Plaintiff moved to strike defendants' demurrer for the reason it was an answer, and that in their prior motion to strike defendants had raised the question that the amendment presented a new cause of action and so was barred by the statute of limitations, and that this question had been decided adversely to defendants.

The trial court overruled plaintiff's motion, and sustained defendants' demurrer as to both grounds of the petition. Upon plaintiff's election to stand upon his amended petition an order was entered dismissing same, and from such order plaintiff has appealed.

To sustain the correctness of the trial court's action defendants urge that each publication of an alleged libel given rise to a separate cause of action; and that publication in two different newspapers constitutes separate causes of action, and pleading of one neither bars the pleading of the other, nor is pleading of one an amendment of the other. Decisions from several jurisdictions are cited in support of this contention. This argument is without substantial merit and the cited cases are inapplicable, for the obvious reason that herein the plaintiff alleged only one publication of the alleged libelous matter. By the amendment it was not sought to show more than one publication, but only to amend the petition to correctly state the medium, or agency, whereby the alleged defamatory matter was published.

Determination of the question whether the amended petition alleged a new, distinct cause of action which was barred by the statute of limitation is dispositive of this entire controversy.

The general rule is that a trial court, in his own discretion, may permit any pleading to be amended in furtherance of justice. In this state such authority is granted the trial court by statute, 12 O.S.1941 § 317. The basis for such rule is that, insofar as possible, every case should have a speedy determination upon its own facts, in order to do substantial justice to the litigants. 34 Am.Jur., Limitation of Action, section 261; Motsenbocker v. Shawnee Gas & Elec. Co., 49 Okl. 304, 152 P. 82, L.R.A.1916B, 910. The controlling test governing the propriety of permitting amendments to the petition should be whether the ends of justice will be promoted by such amendment. Securities and Exchange Comm. v. Universal Service Ass'n, 7 Cir., 106 F.2d 232; certiorari denied Universal Service Ass'n v. Securities & Exchange Comm., 308 U.S. 622, 60 S.Ct. 378, 84 L.Ed. 519.

The principal limitations upon the rule are that the amendment must relate to...