O'Malley v. Statesman Printing Co.

• Decision Date: 27 May 1939
• Docket Number: 6650
• Citation: 91 P.2d 357,60 Idaho 326
• Court: Idaho Supreme Court
• Parties: P. C. O'MALLEY, Respondent, v. STATESMAN PRINTING CO. (a Corporation), Appellant

91 P.2d 357

60 Idaho 326

P. C. O'MALLEY, Respondent, v. STATESMAN PRINTING CO. (a Corporation), Appellant

No. 6650

Supreme Court of Idaho

May 27, 1939

LIBEL-VENUE.

1. At common law, a civil action for libel could be brought in any county in which newspaper containing libelous article was circulated.

2. Common law rule that a civil action for libel may be brought in any county in which paper containing libelous article was circulated was abrogated by statute under which action against corporation must be brought in the particular county in which cause of action arose. (I. C. A., sec. 5-404.)

3. The publication and not preparation of a libelous article gives rise to a cause of action.

4. Where immediately after being put in type an alleged libelous article was printed and 7,000 copies circulated in Ada county, there was an actual "publication" of the article in Ada county, as regards question of venue. (I. C A., sec. 5-404.)

5. It is common knowledge that newspapers are widely circulated and read.

6. Where newspaper was composed, printed and published in Ada county and immediately after being put in type alleged libelous article was printed in paper and copies of the newspaper were circulated in all counties of state, not less than 7,000 in Ada county and approximately 70 in Bannock county where plaintiff resided, plaintiff's alleged "cause of action arose" in Ada and not Bannock county, so that newspaper was entitled to have venue changed from Bannock to Ada county. (I. C. A., sec. 5-404.)

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Isaac McDougall, Judge.

Action for libel. Appeal from an order denying motion to change place of trial. Reversed and remanded, with directions.

Reversed and remanded, with directions. Costs awarded to appellant.

Dean Driscoll, for Appellant.

Publication is made and hence the cause of action arises at the place and in the county from which the newspaper is issued and distributed and not in any other county into which copies are merely sent, distributed or circulated. In other words, there is but one publication, and that at the original place of issuance and distribution, and the circulation of copies thereafter goes only to the enhancement of damages but does not give rise to additional causes of action:

(a) Sec. 17-1505, I. C. A., defining publication in criminal actions, and which would establish venue in Ada county under the facts here, is applicable. (Carpenter v. Grimes Pass Placer Min. Co., 19 Idaho 384, 114 P. 42; Dwyer v Libert, 30 Idaho 576, 167 P. 651, Ann. Cas. 1918B, 973; Jenness v. Cooperative Pub. Co., 36 Idaho 697, 213 P. 351.) (b) Sec. 5-404, I. C. A., itself contemplates but a single venue, to be determined by the locus of the original wrongful act. (c) It is so held in the following cases: Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A. L. R. 898; Wolfson v. Syracuse Newspapers, Inc., (1938) 254 A.D. 211, 4 N.Y.S. (2d) 640; Fried-Mendelson & Co. v. Edmund Halstead, Ltd., 203 A.D. 113, 196 N.Y.S. 285, 287; United States v. Smith, (D. C.) 173 F. 227.

P. C. O'Malley and F. M. Bistline, for Respondents.

Civil actions for libel are transitory in their nature, and it is very generally held that such an action may be brought in any jurisdiction where the libelous article is published, delivered or circulated, even though the article was written or printed elsewhere, where the matter is not governed by statute. The following cases are only a fraction of the authorities sustaining that rule: Am. Eng. Ency. of Law, vol. 13, p. 454, C. Y. C. vol. 25, p. 433; C. J. vol. 37, p. 19; Townsend on Libel and Slander, sec. 268; Greenleaf on Evidence, (16th ed.) vol. 3, sec. 173; Trial of Seven Bishops, A. D. 1688, 12 How. St. Tr. 185; Lucan v. Cavendish, 10 Irish Law Times 537; Irvin v. Duvernay, 4 Quebec, L. R. 85.

A civil action for libel is an action founded on tort, and must take the classification and ruling as any other action in tort. (Burdick's Law on Torts, pp. 300, 301; Cooley on Torts, 4th ed., vol. 1, sec. 137.) "Accordingly in an action for tort, injury is always the gist of the action." (R. C. L., vol. 26, p. 762; Hundley v. Louisville etc. R. Co., 105 Ky. 162, 48 S.W. 429, 88 Am. St. 298, 63 L. R. A. 289.)

HOLDEN, J. Budge and Givens, JJ., concur. Ailshie, C. J., did not sit at the hearing, nor participate in the decision. STEVENS, D. J., and MORGAN, J., Dissenting.

OPINION

HOLDEN, J.

--The Idaho Daily Statesman is a morning newspaper composed, printed and published in Boise, Ada county, since May 20, 1889, by the Statesman Printing Co., a domestic corporation, having no office or agent in Bannock county. At the time the editorial was published, complained of by respondent, the Statesman had a circulation of not less than 7,000 in Ada county. It also circulated in all other counties of the state. For several years prior to May, 1937, respondent was manager of the State Insurance Fund of the State of Idaho, and during that period lived at Boise, but maintained his legal residence in Bannock county. May 27, the Statesman published an editorial concerning respondent's conduct of that Fund. April 15, 1938, respondent commenced this action to recover damages against the Statesman Printing Co. on a charge of libel based upon publication of the editorial. May 9, 1938, appellant filed a general demurrer to respondent's complaint, as well as a demand and motion for a change of place of trial of the cause from Bannock to Ada county. The motion was supported by affidavit and opposed by counter affidavit. The affidavits, however, are not thought to be in conflict on the single question presented by the record on appeal. Sept. 3, 1938, the trial court entered an order denying the publishing company's motion for a change of the place of trial from Bannock to Ada county. October 20, 1938, an appeal was taken from the order so entered. The decisive question presented by the record is as to where, or in what county, respondent's cause of action, if any, arose. That is a new question in this state, insofar as the venue of an action for libel against an incorporated newspaper is concerned.

"Appellant's contention, briefly stated is, that under the circumstances here involved the paper is published, hence the cause of action accrues, at the place and in the county from which it is issued and distributed, and not in another county into which it is merely sent, distributed or circulated. In other words, that there is but one publication, which occurs at the original place of issuance and distribution, and the circulation of copies thereafter goes only to the enhancement of damages but does not give rise to additional causes of action."

On the other hand, respondent contends:

"It is immaterial whether there is 1 or 10,000 causes of action, there is one cause of action in each and every county where defendant circulated its paper, and in whatever county plaintiff files his cause of action, the district court of that county has jurisdiction in that case all over the state." That contention is based upon the theory, if we understand respondent correctly, there was a distinct, separate and independent publication at each place and in each county of the state where, for instance, a single copy of the paper was circulated and read, and that there were as many distinct, separate and independent causes of action as there were copies of the paper circulated.

That part of sec. 5-404, I. C. A., pertinent here and upon which the publishing company based its motion for a change of venue, follows:

"And provided, further, that in all actions against any corporation organized under the laws of the State of Idaho, suit or action shall be commenced and tried in any county of this state where the defendant has its principal place of business or in the county in which the cause of action arose."

Respondent's contention that the distribution and circulation of each copy of the paper constituted a distinct, separate and independent cause of action in each county of the state where circulated and read, and that a civil action for libel could be brought in each and all of such counties is untenable. However, at the common law, a civil action for libel could be brought in any county in which the paper was circulated. (Haskell v. Bailey, 63 F. 873, 11 C. C. A. 476, 25 U.S. App. 99; Vitolo v. Bee Pub. Co., 66 A.D. 582, 73 N.Y.S. 273; Pinkney v. Collins, 1 T. R. 571, 99 Eng. Rep. 1257; Blackburn v. Cameron, 5 Ont. Pr. Rep. 341; Irvine v. Duvernay, 4 Quebec L. R. 85.)

The common law rule, however, was abrogated by statute (sec. 5-404, supra), in that under it the action must be brought in the particular county, and in that county only, in which the cause of action arose. Under the statute, then, in what county of the state did respondent's alleged cause of action arise?

The answer to that question can not be found in any of the authorities cited by either appellant or respondent in that no case is cited by either in which the court construed a venue statute like that under consideration in the case at bar. The authorities cited other than the common law cases not applicable here, construe venue statutes unlike sec. 5-404, supra. To illustrate by examples, we have selected Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A. L. R. 898, construing an Alabama statute, cited by appellant and Tingley v. Times-Mirror Co., 144 Cal. 205, 77 P. 918 (cited by respondent), construing sec. 16, art. 12 of the Constitution of that state, reading:

"A corporation or an association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs, or...