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 |
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.
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:
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.
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