Dusabek v. Martz

• Decision Date: 04 May 1926
• Docket Number: 15181.
• Citation: 249 P. 145,121 Okla. 241,49 A.L.R. 253,1926 OK 431
• Parties: DUSABEK et al. v. MARTZ.
• Court: Oklahoma Supreme Court

249 P. 145

121 Okla. 241, 49 A.L.R. 253, 1926 OK 431

DUSABEK et al. v. MARTZ.

No. 15181.

Supreme Court of Oklahoma

May 4, 1926

Rehearing Denied July 6, 1926.

Syllabus by the Court.

Language used in a newspaper article which, when given its ordinary natural, and obvious meaning, exposes the person concerning whom it is used to public hatred, contempt, ridicule, or obloquy, or which tends to deprive him of public confidence or to injure him in his occupation, is "libelous per se" and actionable.

A publication that charges, in substance, a United States ex-soldier of the World War with being unpatriotic, with shirking his duty to his country in failing to enlist for service until forced by the Draft Act (U. S. Comp. St. §§ 2044a-2044k), and with doing everything possible to evade service, and specially charging that he married in order to secure exemption from service, but failed in his purpose and had to go, and charging him with being an active officer of the American Legion for pecuniary gain, is "libelous per se."

It is not a sufficient answer to a charge of libel to show that the publication only accuses plaintiff of having done that which he might legally have done, the rule being that it is not libelous to charge a person of having done that which he might legally and properly have done. The rule of this court announced in Kee v. Armstrong, Byrd Co., 75 Okl. 84 182 P. 494, 5 A. L. R. 1349, to the effect that "words charging one with being engaged in a perfectly lawful transaction, or merely doing that which he has a legal right to do, are not actionable per se," is overruled.

Appeal from District Court, Blaine County; Thomas A. Edwards, Judge.

Action by Andrew C. Martz against George F. Dusabek and another, for libel. Judgment for plaintiff, and defendants appeal. Affirmed.

I. H Lookabaugh, of Watonga, and Horton & Horton, of Oklahoma City, for plaintiffs in error.

Seymour Foose and R. C. Brown, both of Watonga, and W. R. Bleakmore and John Barry, both of El Reno, for defendant in error.

RILEY J.

Defendant in error as plaintiff below obtained judgment in the trial court for libel against the plaintiffs in error as defendants below, from which judgment this appeal is prosecuted. For convenience the parties will be referred to herein as they appeared in the trial court.

The only material questions presented in this appeal are whether or not the article complained of in plaintiff's petition was libelous per se, and whether or not it was necessary for the plaintiff to prove actual damages in order to sustain a recovery.

The plaintiff was the editor and owner of the Okeene Record, and the defendants edited and owned the Okeene Leader, both being weekly newspapers published in Okeene, Okl. The article complained of, which was admitted and shows upon its face to have been published of and concerning the plaintiff, is as follows:

"In Answer: The Okeene Record, the 'germ' of literature and logic, last week in attempting to make a reply in defense of the American Legion, of which he boasts he is a member (however, by the act of compulsory army service only), takes a direct slap at the editor of the Leader. He tells the folks through the columns of his paper that he is a member of the American Legion and proud of it, and a little further down states that the editor and owner of the Leader are about the same age as he, intimating that the editor of this paper should have been in Uncle Sam's service during the World War. The first thing we wish to call your attention to, Mr. Martz, is the fact that had Uncle Sam come and demanded our services, such as he did yours, we, too, could have boasted of a few months' service in a training camp, far away from the sound of the enemy's guns. Secondly, the editor of the Leader made no attempt to keep out of the service. Long before the draft bill was passed we conversed with an army recruiting officer at Fairview. He was very frank in his assertions, and in practically these words said: "I have no d --- time to take up with men who have families; we are after a bunch of these yellow-backed single guys, who should be here now volunteering."

Later on, Martz, the draft bill was passed. In that bill was a proviso that married men would be the last called to the colors. It caused the marriage license clerk to work overtime; the ministers were doing a land office business. But you remember it was discovered that the men who were married after the declaration

of war would be called the same as a single man, thus causing many to leave their war brides and enter into the service with their more patriotic companions. The editor of the Leader was not guilty of any of these acts. We were married several years before the opening of the World War. Our boy was quite a lad when the Draft Law came into effect; hence, not like some others, we were not hiding behind the folds of a woman's garments. We made answer to our questionnaire the same as you-all that was required of any American citizen. We made no attempt to evade the draft, and had it been our lot to be called we would have done our bit, expecting nothing in return. When we came back we would have also considered one comrade as good as another, whether he was rich or poor; the same feeling would have existed here as did in the front line trenches, for we are not much on 'society lines,' as we have never yet found a man so low that we would not clasp his hand in friendship, nor a man so high up in this life that we considered him better than we were.

There should be a little distinction, however, between the boys who fought 'over there' and the ones who just entered a training camp. To our opinion the man who served best should be given preference in the selection of your officers for the American Legion post. The Okeene Post, we believe, would have made a better showing had such men as Floyd Fullbright, Ira Towns, John Adams, Bill Marcoux, and others, who faced the enemy over there-really did some fighting and who did not belong to the commissary department or the mule drivers' brigade.

You speak of being engaged in a more necessary occupation. We were both, practically speaking, in the same line of industry-both printers. The Leader editor managing a newspaper. Did you attempt to volunteer? Was there anything at any time to prevent you from offering your services? Is it not a fact that your constant aim was to some way, somehow, to get by, and that you were among those who stayed out of the game as long as possible? We respect the uniform you wore, you are worthy of some consideration for wearing it, but when it comes down to real patriotism, real Americanism, we consider we will stand the acid test along with some of those to whom Uncle Sam said 'Come, I want you,' and would have never served under any other consideration.

Yes, Mr. Editor of the Okeene Record, you should be proud of your membership in the American Legion post, to the extent of $15 per month during Trades Day season. That ought to swell you up with pride.

Sure enough Curtis Evans may not be a member of the Okeene Post, American Legion, and if we are rightly informed there are many overseas men here who are not members of the Okeene Post because of the narrow-mindedness of the ruling members of this post. Even if he is not a member of any post he is, by reason of his service, entitled to at least human care and human interest, even if a social line has to be drawn and Evans was never shot in the foot.

The owner of the Leader called on Curtis Evans, and was there informed that no member of the Okeene Post except Patkowski had been there as such, that the Record man had been there presumably for news, and that Evans was asleep and was not disturbed. The Record man was able to acquire and publish an ugly story of Evans' condition prior to his being found in the well."

The plaintiff pleads this publication, that it was false, malicious, unprivileged, libelous, and exposed the plaintiff to public hatred, contempt, ridicule, and obloquy, and tended to deprive him of public confidence and injure him in his occupation as publisher of his paper and to injure him in his good name and reputation; that the same caused him great mental suffering and injured and wounded his feelings, all to his damage in the sum of $10,000, for which he prays judgment.

Defendants demurred to the petition on the ground that it did not state a cause of action, the demurrer was overruled by the court, and the defendants make this their first assignment of error. They contend that the publication was not libelous per se; that is, within itself, on its face, according to the meaning of the words, and, no actual damages being alleged, the petition was not sufficient to state a cause of action. They contend that the language used in the article only charged plaintiff with doing what he had a legal right to do.

As to whether the article is libelous per se, we must consider in our determination only the thought, idea, impression, or opinion conveyed to the reader by the publication, everything appearing in the article, be it inference, insinuation, irony, ridicule, sarcasm, the friendly or unfriendly tone, its arrangement, form, and style. The court for such purpose becomes the lay person to whom it is addressed, and in arriving at the meaning everything appearing in or from the article which, unaided by extrinsic facts or circumstances, has a natural tendency to change, color, or formulate its meaning, must be considered. Conversely, if the aid of innuendo is necessary to make the meaning defamatory, it is not libelous per se. Innuendo as here used is strictly in its legal application as an averment of the meaning of alleged libelous words. Johnston v. Morrison, 3 Ariz. 109, 21 P. 465.

If the...