Kee v. Armstrong, Byrd & Co.

• Decision Date: 17 June 1919
• Docket Number: Case Number: 4729
• Citation: 1919 OK 176,75 Okla. 84,182 P. 494
• Parties: KEE et al. v. ARMSTRONG, BYRD & CO.
• Court: Oklahoma Supreme Court

1919 OK 176

182 P. 494

75 Okla. 84

KEE et al. v. ARMSTRONG, BYRD & CO.

Case Number: 4729

Supreme Court of Oklahoma

Decided: June 17, 1919

Syllabus

¶0 1. Libel and Slander--Classification of Libelous Words.

Words charged to be libelous may be divided into 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.

2. Same--Construction of Words.

Words used in an alleged slanderous communication or article are to be construed by their most natural and obvious meaning, and in the sense that would be understood by those to whom it was addressed.

3. Same--Words Libelous Per Se.

In order that words shall be libelous per se as disparaging a person in his trade or business, they must have been spoken of plaintiff in relation thereto, and be of such a character as would prejudice him by impeaching either his skill or knowledge, or attacking his conduct in such business.

4. Same.

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.

5.Same--Words Not Actionable Per Se--Allegations--Innuendo.

If the alleged defamatory Words are not actionable on their face, but derive their defamatory import from extrinsic facts and circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged by a proper averment. Words not actionable per se may be made to appear actionable by averring such extrinsic facts as will show that they Were intended to be slanderous and were so understood. These averments must be distinctly stated in the inducement, and applied to the plaintiff by a proper colloquium, with the intended and understood meaning correctly set out in the innuendoes.

6. Same--Pleading--"Inducement."

An "inducement" is a statement of facts out of which the charge arises, or which is necessary or useful to make the charge intelligible, or, in other words, it is intended to state facts whereby the libel or slander is rendered intelligible, and is shown to contain an injurious imputation.

7. Same--"Colloquium."

A "colloquium" only serves to show that the words were spoken in reference to the matter of the averment.

8. Same--"Innuendo."

An "innuendo" is only explanatory of the subject-matter sufficiently expressed before, and is and can be only explanatory thereof, and cannot extend the sense of the words beyond their own meaning unless something is put upon the record for it to explain, nor can it make a thing certain which is in fact uncertain, nor enlarge or restrict the meaning of words, nor introduce new matter.

9. Same--Innuendo--Question for Court.

It is the duty of the court to determine whether the language used in the publication can fairly or reasonably be construed to have the meaning imputed to it in the petition.

10. Pleading--Demurrer to Petition--Effect --Libel.

The demurrer to the petition for libel only admits the truth of the facts pleaded, and does not determine the truth of the inference of the pleader based on facts pleaded unless the facts are sufficient to authorize such inference.

11. Libel and Slander--Publication--Construction in Pleading.

The publication in the instant case is not susceptible of the construction placed upon it by the plaintiff in its petition, and, in determining whether the petition states a cause of action, the improper construction placed upon the same by the plaintiff must be disregarded.

12. Libel and Slander--Words Actionable Per Se.

The publication is not libelous per se.

13. Same--Sufficiency of Petition.

The petition fails to connect the publication with any extrinsic facts and circumstances which would make the same libelous; therefore it does not state a cause of action.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by Armstrong, Byrd & Co., a corporation, against O. B. Kee and another. Judgment for plaintiff, and defendants bring error. On rehearing, reversed and remanded, with directions to sustain the demurrer to the petition.

Former opinions published in 151 P. 572, and 175 P. 836, withdrawn.

KANE, J., dissenting.

John H. Burford, John H. Miley, Roy Hoffman, Frank Burford, and Warren K. Snyder, for plaintiffs in error.

Harris, Howard & Nowlin, for defendant in error.

McNEILL, J.

¶1 This controversy arose over the publication of an article appearing in the Daily Oklahoman November 22, 1908. The publication complained of is as follows:

"I have a $ 100.00 bond from Armstrong-Byrd Music Co., that I will give to any one than can use it. I bought a piano there and when I showed my bond they refused to accept it without I would add $ 50.00 to the price I paid for it.

Mrs. O. B. Kee."

¶2 Upon the trial of the case in the district court, plaintiff, Armstrong, Byrd & Co., recovered a judgment against O. B. Kee and Rose Kee. The case was appealed here, and on July 13, 1915, an opinion was rendered by Commissioner Brett, and the same is reported in 151 P. 572. Thereafter numerous petitions for rehearing were filed, and the case was transferred to the Supreme Court proper, and on the 19th day of November, 1917, the Supreme Court adopted the opinion of Commissioner Brett, and the same is reported in 175 P. 836. A petition for rehearing was again filed and granted, and the case is again before this court for final determination.

¶3 The plaintiff's petition was very lengthy, and the substance of the same is that Armstrong, Byrd & Co., a corporation, was engaged in the music business, and enjoyed a large trade; that its reputation was of very great pecuniary value; that the article above referred to was published in the Oklahoman on the 22d day of November, 1908. They then pleaded the meaning of the article published and alleging that the same was libelous and untrue. A more complete reference to the petition will be referred to hereafter in this opinion.

¶4 The defendants filed a motion to make the petition more definite and certain, which was overruled by the court, and to which the defendant excepted. Thereafter the defendants filed a demurrer attacking the petition on the grounds that the same did not state facts sufficient to constitute a cause of action. This was overruled by the court, to which ruling the defendants excepted. Defendants then answered, first, by way of general denial; second, denying that any conspiracy existed between O. B. Kee and Rose Kee; third, denied that they had published, or caused to be published, the article set forth in plaintiff's petition, or that they had anything whatever to do with the publication of the same; fourth, they further state that the supposed libelous publications as set forth in the article were each and all of them true in substance and in fact, and then state the facts of a transaction occurring between the parties attempting to justify or show the statements contained in the article were true. Upon the trial of the case, the court instructed the jury that the article was libelous, and, if the defendants had published the same, they would be liable for damages, unless the facts therein stated were true. The jury returned a verdict for plaintiff, and defendant appealed.

¶5 The parties will be referred to hereafter as Armstrong, Byrd & Co., plaintiff, and O. B. Kee and Rose Kee as defendants, the position they occupied in the court below.

¶6 For reversal, the defendants assign 16 separate and distinct assignments of error. The first assignment of error is that the court erred in overruling the demurrer interposed by these defendants and each of them to the petition.

¶7 It will be necessary to direct our attention, first, to the petition to ascertain whether the petition stated a cause of action. The subject of libel and slander is an important one, and occupies a large space in the reported decisions of the courts of the different states.

¶8 In considering cases of this kind and character, the different courts have referred to articles as being "libelous," and those that are "libelous per se." No writer has attempted to lay down any strict rule of law, which may be followed by the courts in distinguishing between publications that are "libelous" and those termed "libelous per se." We have been unable to find any writer who has defined the term "libelous per se," but our court has often referred to publications as being "libelous" and those "libelous per se."

¶9 It has been well said that 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." Pratt v. Pioneer Press Co., 30 Minn. 41, 14 N.W. 62.

¶10 If a particular publication comes within the first of these classes, the same will not support an action for libel, although such a publication might support an action for a malicious wrong or malicious injury, or an action as designated by common law, an action on the case, but the same cannot be the foundation for an action for libel or slander. The foundation for an action of libel must be that the words are defamatory or bear a defamatory meaning.

¶11 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.

¶12 The third class has been referred to by numerous text-writers, and in the different decisions, as words or publications that are libelous per se, and this court in numerous decisions has adopted the rule, and...