Holway v. World Pub. Co.
| Decision Date | 02 April 1935 |
| Docket Number | 19691. |
| Citation | 44 P.2d 881,171 Okla. 306,1935 OK 356 |
| Parties | HOLWAY v. WORLD PUB. CO. |
| Court | Oklahoma Supreme Court |
As Corrected May 27, 1935.
Syllabus by the Court.
1. 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. Fite v. Oklahoma Publishing Co., 146 Okl. 150, 293 P. 1073.
2. 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. Id.
3. 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. Hargrove v Oklahoma Press Pub. Co. et al., 130 Okl. 76, 265 P. 635.
4. 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. Fite v Oklahoma Publishing Co., supra.
5. 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. Wiley v. Oklahoma Press Publishing Co., 106 Okl. 52, 233 P. 224, 40 A. L. R. 573.
6. In regard to matters of public interest, all that is necessary to render the words spoken or published privileged is that they should be communicated in good faith, without malice, to those who have an interest in the subject-matter to which they refer, and in an honest belief that the communication is true, such belief being founded on reasonable and probable ground. Bearce v. Bass, 88 Me. 521, 34 A. 411, 51 Am. St. Rep. 446.
7. Where a demurrer is interposed by the defendant to the petition of plaintiff, the demurrer only admits the truth of the facts pleaded, but does not admit the truth of the inference of the pleader based on the facts pleaded, unless the facts themselves are sufficient to authorize such inference. Hargrove v. Oklahoma Press Pub. Co., supra.
Appeal from District Court, Tulsa County; John Ladner, Judge.
Action by W. R. Holway against the World Publishing Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Aby & Tucker and Massingale & Duff, all of Tulsa, for plaintiff in error.
Breckinridge & Bostic, of Tulsa, for defendant in error.
Joseph C. Stone, Charles A. Moon, and Francis Stewart, all of Muskogee, and Samuel A. Boorstin, of Tulsa, amici curiæ.
This is an appeal from a judgment of the district court of Tulsa county against the plaintiff in error, as plaintiff, and in favor of the defendant in error, the defendant therein.
The plaintiff, W. R. Holway, commenced this proceeding to recover from the defendant, World Publishing Company, general and exemplary damages for the injury alleged to have been sustained by him through the publication and distribution in the defendant's newspaper, the Tulsa Daily World, in five articles set forth in separate counts in the petition to which the trial court sustained demurrers to the evidence as to counts 2, 4, and 5, and overruled the demurrers as to counts 1 and 3. The plaintiff appealed from the judgment for the defendant on the two counts submitted to the jury and from the action of the court in sustaining the demurrers to the three counts.
In the defendant's answer, the publication of the articles was admitted, but denied that the articles were defamatory. The defendant pleaded the truth and claimed same to be privileged (1) because of public interest and open to discussion and criticism under the law; (2) that the plaintiff was a "public officer" under the statute, and that the words were privileged so long as no crime was imputed; (3) that part of the publication constituted a fair and true report of proceedings authorized by law.
The record discloses that the plaintiff, W. R. Holway, was a civil and hydraulic engineer, living at Tulsa. The plaintiff and J. D. Trammell were employed under contract by the water commission of the city of Tulsa to make plans and specifications and to represent the city as supervising engineers of the water project begun by which the water supply of Tulsa was to be obtained from Spavinaw creek some 50 or more miles away. Later Trammell retired and the plaintiff was put in full charge. Various contractors for various jobs and parts of the work had contracts with the city, all under the plaintiff's supervision.
The defendant, through its newspaper, the Tulsa Daily World, had taken a leading interest in the support of the Spavinaw project. When the plaintiff and Trammell submitted their joint estimate of the cost of the work, it was fixed at $6,800,000. Bonds for the project were voted and the work began. Some time thereafter the plaintiff presented an estimate showing that $700,000 additional would be required. Later plaintiff presented an estimate showing $350,000 more would be required, which in all exceeded his original estimate by $1,500,000. It appears that the plaintiff failed in the completion of the project upon several dates set for the work to be completed. The water reached the city some time in the latter part of 1924, but during the spring and summer of 1925 the city of Tulsa suffered a water shortage greatly to the disappointment and inconvenience of its citizens. The defendant paper frequently took to task both the water committee and the civil engineers, because of the extra unexpected cost and the delay, finally leading up to the articles published here complained of.
Owing to the number and length of the published articles complained of in the several counts of the petition, it will be impractical to set out the various articles in full, but we will quote the specific portions upon which the action was based. We will first consider the articles considered in the plaintiff's second, fourth, and fifth counts, which were withheld from the jury in sustaining the demurrers at the close of the plaintiff's evidence.
The article in the second cause of action: '
The article was supposed to include an excerpt of the minutes of the water board showing where certain money was paid to Holway. It stated: "November 28, 1921, $509.21 and $348.11, but it is not shown for what Holway received that money, and there is also a note in the minute books that Holway appeared and explained the $880 automobile account disallowed November 21 was for 'depreciation on a Ford."'
The plaintiff's Exhibit 8 is supposed to be a copy of the minutes of the water board or commission of November 2, 1921, when the account was presented and considered. The part pertaining to the Holway claim is in part as follows:
The minutes further showed that the accounts were allowed.
Plaintiff's Exhibit 9 purports to consist of the minutes of the water commission on December 12, 1921. That part of the proceedings pertaining to the automobile account is as follows:
"Mr. W. R. Holway, Consulting Engineer of the Water Commission, appeared before the Board to explain the amount of $880.00 presented in his last statement for work on the Spavinaw Preliminary Survey, being the amount charged to the Water Commission for depreciation on cars belonging to him, and used by his office in work on the preliminary survey.
He explained that the Ford car, as set out in his original statement, was used three months with eight men in it, and that the Dodge car people had set the depreciation on the Dodge car at $250.00, but that he actually sold it for more, so had allowed a lesser depreciation.
Moved by McCullough, seconded by Avery, that the item charged for depreciation in the last statement of Mr. Holway's presented to the Commission on November 21st, 1921, being the final statement, the amount being $880.00, be allowed."
The exhibit further shows the $880 was allowed.
We shall endeavor to consider this published article in connection with the minutes of the water commission shown in the exhibits.
The plaintiff contends that the statement in the published article, that Mr. Holway presented a claim to the water commission for $880 for depreciation on a Ford car, while the...
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