Kee v. Armstrong, Byrd & Co.
| Decision Date | 13 July 1915 |
| Docket Number | 4729. |
| Parties | KEE ET AL. v. ARMSTRONG, BYRD & CO. [a1] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In determining whether language is libelous per se, it must be viewed, stripped of all innuendo, colloquium, or extrinsic or explanatory circumstances. The meaning of the phrase "per se" is, "taken alone, in itself, by itself," and words which are libelous per se do not need an innuendo; and, conversely, words which need an innuendo are not libelous per se. And where an innuendo must be pleaded, in order to state a cause of action, it is self-evident that the language, taken alone, in itself, by itself, per se, is not libelous.
If language is not libelous per se, an action cannot be maintained thereon, although the publication is false without alleging and proving special damage. And when, in a libel suit, loss of business and customers is charged, the names of the parties who have withdrawn their custom must be set out specifically.
It is not sufficient proof of damage to show the volume of business immediately prior to the appearance of the alleged libelous article, and the volume of business immediately following its appearance. There are many things that will cause a business to fluctuate, and many times a business will fluctuate without any apparent cause; and it is not proper to allow a plaintiff, without definite pleading and proof to that effect, to ascribe a decrease in business to the baneful effect of such libelous article upon the public mind. The law requires that, when one person demands money of another, he must show that he is justly entitled to it, and the law will not permit a court or jury to guess money out of one man's pocket into the pocket of another.
Additional Syllabus by Editorial Staff.
Under Comp. Laws 1909, § 2338, defining libel as a false publication which exposes any person to public hatred contempt, or ridicule, and tends to deprive him of public confidence, or injure him in his occupation, a publication reciting that defendant had a $100 bond for a piano given by plaintiff music store, which she would give to any one who could use it, and that plaintiff had refused to honor the bond unless $50 was added to the price of a piano, is not libelous per se; the publication itself showing the bond had a value.
Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Edward Dowes Oldfield, Judge.
Action by Armstrong, Byrd & Co., a corporation, against O. B. Kee and another. There was a judgment for plaintiff, and defendants bring error. Reversed.
Burford Robertson & Hoffman and Warren K. Snyder, all of Oklahoma City, for plaintiffs in error.
Ames, Chambers, Lowe & Richardson and Harris, Nowlin & Singleton, all of Oklahoma City, for defendant in error.
This case was commenced in the district court of Oklahoma county by Armstrong, Byrd & Co., the defendant in error, as plaintiff in that court, against O. B. Kee and Rose Kee as defendants in that court; and the parties will be referred to in this opinion as they appeared in the lower court--that is, Armstrong, Byrd & Co. will be referred to as plaintiff, and O. B. Kee and Rose Kee as the defendants. The action is for damages alleged to have been sustained by the plaintiff by reason of a certain alleged libelous publication, which appeared in the Daily Oklahoman November 22, 1908, and seeks $15,000 actual damages and $15,000 exemplary damages.
The petition is too long to copy in this opinion, but the material allegations are substantially: That Armstrong, Byrd & Co. is a corporation, duly organized and engaged in the business of the sale, at retail and wholesale, of musical instruments, such as pianos, organs, and all sorts of musical instruments, and musical merchandise, with its principal place of business at Oklahoma City. That it had been engaged in said business for a number of years prior to November 22, 1908; and had established a large and growing trade in Oklahoma, New Mexico, Texas, Kansas, and Arkansas, and enjoyed a reputation in all of its trade territory as being a substantial, reliable business house, responsible for its contracts; and its reputation for truthfulness and reliability in business dealings was of great pecuniary value, and that by reason of its business and good reputation it had acquired and was acquiring great gains and profits in its business and trade. That on the 22d day of November, 1908, the defendants, acting together, falsely, willfully, and maliciously printed and caused to be printed and published in the Sunday edition of the Daily Oklahoman, a newspaper of large circulation in its trade territory, a certain willful, false, and malicious printed article, which is as follows:
That plaintiff had about November 1, 1908, delivered to certain customers, and prospective customers, piano bonds for different sums of money, which were good for the amount named in the bond as part payment on the purchase price of pianos from plaintiff. That by said printed article, by innuendo, the defendants intended to and did publish that Armstrong, Byrd & Co. made a contract with Mrs. O. B. Kee, alias Rose Kee, for the sale of a certain piano, and that when she showed her $100 bond it refused to accept the bond unless she would pay it $50 more than the agreed purchase price of the piano, and that Armstrong, Byrd & Co. had broken its contract with her, and had refused to comply with and wholly repudiated its contract with her, and that it was unreliable in its business dealings, unworthy of belief, and false in its business dealings. That the publication was false, and known to be false by defendants, and was made with express malice, and for the purpose and with the intent to destroy the good name and business reputation of the plaintiff, and to cause plaintiff pecuniary loss in its business and prevent the sales of its merchandise. That the defendants were persons of great wealth and influence, and had a wide circle of acquaintances in the financial and musical worlds, within the trade territory of the plaintiff. That by reason of said article plaintiff had suffered great pecuniary loss and actual damage, in that its standing and reputation for honesty, truthfulness, and integrity had been greatly impaired, and in that many prospective customers and buyers of pianos and musical instruments had refused to purchase pianos and other musical instruments by reason of said libelous article, which caused it to suffer loss of a large trade and great profits, and that its business had greatly fallen off, in volume and profit, because of the libelous article, to its damage in the sum of $15,000. That the defendants in publishing said libelous article were actuated by express malice against the plaintiff, and it asks for $15,000 exemplary damages.
The defendants in due time filed a motion asking that plaintiff be required to make its petition more definite and certain, in that it be required to set out in particular the items of trade and profits it alleged it lost, and that it be required to set forth the names and addresses of prospective purchasers of pianos and organs and musical instruments and merchandise who had refused to purchase by reason of said article. This motion was by the court overruled, and defendants saved their exceptions. The defendants then filed separate demurrers to the petition, on the ground that it failed to state facts sufficient to constitute a cause of action. Each of the demurrers were overruled, to which defendants excepted. The defendants then answer: First, by general denial; second, by specifically denying that they acted together in the publication of the article; third, by denying that they published or caused to be published the article; by alleging that the alleged libelous article was true in substance and in fact--and pleaded the ground upon which that allegation is based, which it is unnecessary to set out in this opinion, but do not deny the innuendo pleaded in the plaintiff's petition, or set out a meaning of the language different from that ascribed to it in plaintiff's petition.
The plaintiff replied by general denial. The cause was tried to a jury, which returned a verdict for plaintiff for $12,500, which became a judgment; and from this judgment the defendants appeal to this court.
1. There are a number of errors assigned, but the most important question raised, and the one we will notice first, is whether or not the publication is libelous per se. The plaintiff insists that it is, and the trial court so treated it throughout the trial of the cause, and instructed the jury that it was libelous per se. If that view is correct, then many of the objections of the defendants have no merit. If it is not correct, then the judgment of the plaintiff must, under the...
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