Fite v. Okla. Publ'g Co.

• Decision Date: 09 December 1930
• Docket Number: Case Number: 16852
• Citation: 146 Okla. 150,1930 OK 554,293 P. 1073
• Parties: FITE v. OKLAHOMA PUBLISHING CO.
• Court: Oklahoma Supreme Court

1930 OK 554

293 P. 1073

146 Okla. 150

FITE v. OKLAHOMA PUBLISHING CO.

Case Number: 16852

Supreme Court of Oklahoma

Decided: December 9, 1930

Syllabus

¶0 1. Libel and Slander--Absence of Fixed Rule for Determining Whether Publication Libelous Per Se.

There is no fixed rule by which the court can determine whether or not a statement is libelous per se, and the statement alleged to be defamatory must be examined before it can be determined whether or not it is libelous per se.

2. Same--Charging Acts That Might Have Been Legally Done not Libelous Per Se.

The true rule is that where the publication alleged to be defamatory charges the plaintiff with nothing that he might not have legally and properly done, the same cannot be held to be libelous per se.

3. Same--Publication Actionable "Per Se."|

The term "per se" means by itself; simply as such; in its own nature without reference to its relations; and, in connection with slander and libel, the term is applied to words which are actionable because they, of themselves, without anything more, are opprobrious. In other words, 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.

4. Same--Words Construed by Obvious Meaning.

Words used in an article alleged to be defamatory are to be construed by the most natural and obvious meaning, and in the sense that would be understood by those to whom they were addressed.

5. Same--Necessary That Article Be Defamatory on its Face.

In determining whether the article is libelous per se, the article alone must be construed, stripped of all insinuations, innuendo, colloquium and explanatory circumstances. The article must be defamatory on its face "within the four corners thereof."

6. Same--Newspaper Article Held not Libelous Per Se.

Publication examined, and held, not to be libelous per se.

7. Same--Charging Woman with Attempting to Lobby with Senators not Necessarily Libelous Per Se.

A published article stating that a woman has attempted to lobby with certain Senators is not libelous per se, in the absence of a statement in the article that the lobbying was in violation of authority to lobby conferred by the statutes, when the statutes of the state authorize lobbying under certain circumstances.

8. Same--Classes of Words Charged to Be Libelous--Words Susceptible of Defamatory as Well as Innocent Meaning.

Words charged to be libelous fall into one of three classes: First, those that cannot possibly bear a defamatory meaning; second, those that are reasonably susceptible of a defamatory meaning, as well as an innocent one; third, those that are clearly defamatory on their face. The second class are those words that are reasonably susceptible of a defamatory meaning, as well as an innocent one, and may be made defamatory by reason of their ambiguity, or by pleading certain extrinsic facts connecting said facts with the publication and by pleading that the article was meant and understood by the general public to have such a meaning and that the general public so construed the publication.

9. Same--When Necessary to Allege Special Damages.

It is not every written charge against an individual that will sustain a suit for damages, and, where the article itself is not libelous per se, there must be an allegation of special damages, before a recovery can be had.

10. Same--Publication not Necessarily Libelous Because Displeasing.

The fact that a publication may be unpleasant and annoy or irk the subject thereof, and may subject him to jest or banter, so as to affect his feelings, is not, standing alone, sufficient to make it libelous. In order to be libelous, it must tend to lower him in the opinion of men whose standard of opinion the court can properly recognize or tend to induce them to entertain an ill opinion of him.

Error from District Court, Oklahoma County; William H. Zwick, Judge.

Action by Mrs. R. L. Fite against the Oklahoma Publishing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

T. G. Chambers, Jr., and Claude Nowlin, for plaintiff in error.

Rainey, Flynn, Green & Anderson and Calvin Jones, for defendant in error.

ANDREWS, J.

¶1 The plaintiff in error commenced this proceeding in the district court of Oklahoma county to recover from the defendant in error general and exemplary damages for the injury alleged to have been sustained by her through the publication in the Oklahoma City Times and the Daily Oklahoman,, two newspapers published and distributed by it, of an article, as follows:

"Fight Started for Removal of Mrs. Fite.

"That the political fortunes of Mrs. R. L. Fite of Tahlequah, vice chairman of the Democratic Central Committee, will go down with those of Governor Walton, was the opinion of legislators opposed to Walton who have started a fight to remove Mrs. Fite from her position with the committee for the part she played in the Walton administration.

"The fight will be made on the grounds that the vice chairman should be impartial between candidates during a primary campaign. Mrs. Fite was one of 'the original' Walton supporters and has been on the state pay roll since the inauguration of the Governor.

"Her first position was under the 'extraordinary protection of the state fund,' as 'counselor of the woman of the state.' She later was transferred to the Health Department pay roll and is now on the Highway Department pay roll. Both of these departments are under Walton appointees. It is not clear just what her duties have been.

"It is alleged that Mrs. Fite has attempted to 'lobby' with certain Senators in an effort to prevent the possible removal of Walton from office."

¶2 The parties will be hereinafter referred to as plaintiff and defendant.

¶3 At the conclusion of the evidence of the plaintiff the defendant demurred thereto on the ground that the same was insufficient to constitute a cause of action in favor of the plaintiff and against the defendant. That demurrer was sustained and judgment was rendered in favor of the defendant dismissing the plaintiff's action at her cost. From that order and judgment, the cause was appealed to this court.

¶4 There are certain rules, heretofore announced by this court, which we consider to be applicable in the determination of the issue presented here and to which we will refer before we discuss the evidence of the plaintiff.

¶5 There is no fixed rule by which the court can determine whether or not a statement is libelous per se, and the statement alleged to be defamatory must be examined before it can be determined whether or not it is libelous per se. Kee v. Armstrong, Byrd & Co., 75 Okla. 84, 182 P. 494; Oklahoma Publishing Co. v. Gray, 138 Okla. 71, 280 P. 419.

¶6 The true rule is that where the publication alleged to be defamatory charges the plaintiff with nothing that he might not have legally and properly done, the same cannot be held to be libelous per se. Dusabek v. Martz, 121 Okla. 241, 249 P. 145; Oklahoma Publishing Co. v. Gray, supra.

¶7 It is contended by the plaintiff that there is no distinction in this state between articles libelous per se and articles that are not libelous per se, sometimes referred to as libelous per quod. We do not agree with that contention. The cases hereinbefore cited show that that distinction has long been recognized by this court. It was recognized in N. S. Sherman Machine Co. v. Dun, 28 Okla. 447, 114 P. 617, and was again followed in Hargrove v. Oklahoma Press Publishing Co., 130 Okla. 76, 265 P. 635. It was therein stated to be as follows:

"No special damages are alleged. Therefore, if said publication is not libelous per se, the action of the trial court in sustaining the demurrer to the plaintiff's petition was proper. Matthews v. Oklahoma Publishing Company, 103 Okla. 40, 219 P. 947; M., K. & T. Ry. Co. v. Watkins, 77 Okla. 270, 188 P. 99; Kee v. Armstrong, Byrd & Co., 75 Okla. 84, 182 P. 494."

¶8 In that case this court said:

"Does the published article contain libel actionable per se? The term 'per se' means 'by itself; simply as such; in its own nature without reference to its relations' (Standard Dictionary); and, in connection with slander and libel, the term is applied to words which are actionable because they, of themselves. without anything more, are opprobrious. In other words, 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. Kee v. Armstrong, Byrd & Co., supra; Rowan v. Gazette Printing Co. (Mont.) 74 Mont. 326, 239 P. 1035."

¶9 Words used in an article alleged to be defamatory are to be construed by the most natural and obvious meaning, and in the sense that would be understood by those to whom they were addressed. Kee v. Armstrong, Byrd & Co., supra; Phoenix Printing Co. v. Robertson, 80 Okla. 191, 195 P. 487; Oklahoma Publishing Co. v. Kendall, 96 Okla. 194, 221 P. 762.

¶10 The article complained of consists of a printed statement. It is therein said that the plaintiff is the vice chairman of the Democratic Central Committee; that legislators were of the opinion that her political fortunes will go down with those of Governor Walton; that legislators opposed to Walton have started a fight to remove her from her position with the committee; that the reason therefor is the part she played in the Walton administration; that the fight will be made on the grounds that the vice chairman should be impartial between candidates during a primary campaign; that she was one of the original Walton supporters; that she has been on the state pay roll since the inauguration of the Governor; that her first position was under the "extraordinary protection of the state fund";...