Layman v. Readers Digest Ass'n

• Decision Date: 19 October 1965
• Docket Number: No. 40330,40330
• Citation: 412 P.2d 192
• Court: Oklahoma Supreme Court
• Parties: A. H. (Herb) LAYMAN, Plaintiff in Error, v. READERS DIGEST ASSOCIATION, Inc., a foreign corporation, Select Magazines, Inc., a foreign corporation, and Robert Glenn White and J. I. Everest, a co-partnership doing business under the fictitious name of Oklahoma News Company, Defendants in Error.

Page 192

412 P.2d 192

1965 OK 162

A. H. (Herb) LAYMAN, Plaintiff in Error, v. READERS DIGEST ASSOCIATION, Inc., a foreign corporation Select Magazines, Inc., a foreign corporation, and Robert Glenn White and J. I. Everest, a co-partnership doing business under the fictitious name of Oklahoma News Company Defendants in Error.

No. 40330.

Supreme Court of Oklahoma.

Oct. 19, 1965.

Rehearing Denied March 22, 1966.

Syllabus by the Court

1. In order to entitle one to maintain an action for damages for an alleged defamatory statement, it must appear that he is the person with reference to whom the statement is made.

2. A partnership is a legal entity separate and distinct from the individuals who compose it.

3. Whether an article is of a libelous character per se, and whether it has application

to a particular party plaintiff, are entirely separate and distinct questions, and should not be confused. The answer to the first question is to be found in the article itself. The answer to the second question is to be found in the proof supporting allegations in the complaint. Those proofs may consist either of the article itself, or of extrinsic evidence.

Appeal from the Superior Court of Creek County; G. B. 'Chuck' Coryell, Judge.

Action by plaintiff, A. H. (Herb) Layman, to recover damages for libel from the defendants, Readers Digest Association, Inc., Select Magazines, Inc., and Robert Glenn White and J. I. Everest, a co-partnership doing business as Oklahoma News Company. From the order of the trial court sustaining defendants' demurrers to plaintiff's evidence and dismissing the case, plaintiff appeals. Affirmed.

Rinehart, Rinehart & Rinehart, by Jim A. Rinehart, El Reno, Houston, Davidson & Klein, by R. L. Davidson, Jr., Tulsa, for plaintiff in error.

Martin, Logan, Moyers, Martin & Conway, by Garrett Logan, Tulsa, Charles E. Daniel, Drumright, for defendants in error Readers Digest Ass'n, Inc., and Select Magazines, Inc.

H. Dale Cook, Oklahoma City, Rinehart, Morrison & Cook, Oklahoma City, of counsel, for defendants in error Robert Glenn White and J. I. Everest.

JACKSON, Vice Chief Justice.

In the trial court, A. H. (Herb) Layman sued Readers Digest Association, Inc., Select Magazines, Inc., and Robert Glenn White and J. I. Everest, a co-partnership doing business as the Oklahoma News Company, to recover damages for the publication of an allegedly libelous article in the July, 1960, issue of Readers Digest Magazine entitled 'Our Great Big Highway Bungle'. The first named defendant is the publisher of the magazine; the other defendants are distributors. Plaintiff alleged that the article was false and malicious as to him; that he was therein identified as fully as if his name had been printed; that it was libelous per se; and that publication thereof had damaged him physically and financially, and had caused him humiliation and had placed him in public contempt.

After general charges of 'haste, waste, mismanagement and outright graft' in connection with the Federal Highway Program, and referring to a 'nightmare of recklessness, extravagance, special privilege, bureaucratic stupidity and sometimes outright thievery', the article continued as follows:

'In Oklahoma, and on one 12-mile, eight-million dollar by-pass at Tulsa, grand jury and Congressional probes have recently turned up vidence that one contractor, with the knowledge and assistance of state highway engineers and inspectors, used substandard materials, falsified delivery weights and padded bills. Highway Department employees testified that, on orders from their superiors, they actually made up samples of materials in a laboratory, instead of taking them from the roadbed, as 'proof' that specifications were met. Federal overseers on the job discovered nothing amiss at any time. Others testified that overpayments to this one contractor are estimated at $524,000.00 and that the road, completed in 1958, is already starting to crack up in places.'

Plaintiff testified, among other things, that he was the senior member of a co-partnership known as Layman and Sons, which was the prime contractor on portions of the Skelly By-Pass, the road apparently referred to in the magazine article. His evidence further established that the firm of Layman and Sons was the firm referred to by the phrase 'one contractor' in the article.

At the conclusion of plaintiff's evidence, the trial court sustained the defendants' demurrers to the evidence and dismissed the action. His reasons for so doing were set out in the following remarks from the beach:

'* * * the Court finds that from any proof here, if it has been offered, if there has been any damage suffered by reason of the Reader's Digest article It looks to me like it might be traced to Layman and Sons and not to the individual. It is the Court's opinion that the article in and of itself is not libelous per se In so far as this plaintiff is concerned and I think the plaintiff has wholly failed in their proof to show damages To this particular plaintiff and therefore, I am going to sustain the demurrer.' (Emphasis supplied.)

It is apparent from the above remarks that the trial court concluded, among other things, that there was no evidence to show that the plaintiff was the particular person referred to in the allegedly libelous article.

On appeal, plaintiff (plaintiff in error) argues that the recent case of Fawcett Publications, Inc., v. Morris, Okl., 377 P.2d 42, is decisive of all issues, and that our holdings in that case require that this one be reversed and remanded for a new trial.

We do not agree. Although the two cases are similar in many respects, there are also important differences. The Fawcett case was essentially a 'group libel' case. There, as here, the alleged libel concerned an entire group without naming any particular member, and one of the questions presented was whether there was evidence that the plaintiff, though not named, was sufficiently identified as one of the persons libeled. It was argued that since extrinsic evidence was necessary to show that plaintiff was one of the persons of whom the article was written, the defamatory matter could not be said to be libelous per se, or in and of itself. On that point, this court held:

'Whether an article is of a libelous character per se, and whether it has application to a particular part plaintiff, are entirely separate and distinct questions, and should not be confused. The answer to the first question is to be found in the article itself. The answer to the second question is to be found in the proof supporting allegations in the complaint. Those proofs may consist of either the article itself, or of extrinsic evidence.'

We therefore examine the record before us with regard to the 'second question' above--whether the article was understood by readers to have application to the particular party plaintiff, A. H. (Herb) Layman.

The voluminous record consists of several hundred pages of pleadings and documentary evidence and the testimony of six witnesses. The witnesses were the plaintiff Mr. Layman, who gave detailed testimony as to the history of his firm, its connection with the construction of the Skelly By-Pass, his indictment by a Tulsa grand jury and the subsequent dismissal of the indictment, and his efforts to buttress the financial position of the partnership; Mr. Hancock, an insurance agent who testified with regard to the making of surety bonds for the partnership; Mr. Hanchette, an employee of Select Magazines, who testified concerning his activities for the promotion of the sale of Readers Digest and other magazines handled by his company; Mrs. Marshall, Mr. Martin and Miss Dailey, whose testimony will be referred to hereinafter.

The documentary evidence consisted of the complete...