Okla. Publ'g Co. v. Kendall

• Citation: 221 P. 762,96 Okla. 194,1923 OK 999
• Decision Date: 20 November 1923
• Docket Number: Case Number: 11109
• Parties: OKLAHOMA PUBLISHING CO. v. KENDALL.
• Court: Oklahoma Supreme Court

1923 OK 999

221 P. 762

96 Okla. 194

OKLAHOMA PUBLISHING CO. v. KENDALL.

Case Number: 11109

Supreme Court of Oklahoma

Decided: November 20, 1923

Syllabus

¶0 1. Libel and Slander--Venue of Action Against Publisher Corporation.

Under and by virtue of section 202, Comp. Stat. 1921, a domestic corporation publishing a newspaper may be sued for libel in the county where the paper containing the libel is circulated, that being the residence of plaintiff, though the principal place of business of the corporation was in another county.

2. Same--Construction of Words.

Words used in an alleged libelous publication are to be construed by their most natural and obvious meaning and in the sense they would be understood by those reading the same.

3. Same--Pleading--Imputation of Crime--Inducement.

If an alleged libelous publication does not directly impute crime to the party, but extrinsic facts are necessary to bring out the defamatory meaning, then the law requires the allegation of such facts as inducement in order that the actionable character of words may appear.

4. Same.

Where plaintiff alleged, in an action for libel, that he was the superintendent of a state institution for feeble minded, and the publication contained the following: "Enid Imbeciles Die of Influenza Inadequately Treated, is Charged", held, said language, when it is given its ordinary and natural meaning, would not be understood to charge the plaintiff with the crime of manslaughter in the second degree; held, further, that the mere allegation in the petition that it was intended to charge plaintiff with said crime is not sufficient. Such allegation being a merely gratuitous conclusion of the pleader, and cannot give the words a meaning which they do not otherwise have.

5. Same.

A publication, to impute that an officer is guilty of a crime or misdemeanor for willful neglect of duty, must contain language that will be understood to charge the neglect was willful.

6. Same--Classes 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.

7. Same.

Any publication in writing which holds one up to ridicule, contempt, hatred, or obloquy is libelous, even though it charges no criminal offense.

8. Same--Words Libelous Per Se--Official Delinquency.

The general rule is that a publication which charges a public official with neglect of official duty or incompetency in his office, or malfeasance in his office, is libelous per se.

9. Same.

Publication examined, and held, the publication in question was libelous, per se.

10. Same--Criticism of Public Officials.

The right to criticize the official acts of a public official does not embrace the right to make false statements of facts or to attack his private character, or to falsely impute to him malfeasance or misconduct in office.

11. Same.

In an action for libel by a public official, when the defense of privileged communication on matters of public interest is presented by the issues, the plaintiff may overcome the privilege by proof that the facts commented upon were false.

12. Same--Instructions Erroneous.

Record examined, and held, the instructions of the court did not fairly submit the issues to the jury and were prejudicial to the rights of the defendant.

Embry, Johnson & Tolbert, for plaintiff in error.

Harry O. Glasser, McKeever & Moore, and Wright, Blinn & Gilmer, for defendant in error.

McNEILL, J.

¶1 W. L. Kendall commenced this action in the district court of Garfield county, against the Oklahoma Publishing Company, a corporation, for an alleged libel published in the Oklahoma City Times on February 11, 1919, of and concerning the plaintiff as superintendent of the Institute for the Feeble Minded, a state institution at Enid, Okla. The case was tried to a jury, and a verdict rendered in favor of the plaintiff for $ 10,000 actual damages and $ 2,500 exemplary damages. From said judgment, the defendant appealed. For convenience the parties will be referred to herein as they were in the lower court. It is first argued the trial court erred in overruling a motion to the jurisdiction, and to quash the summons. The defendant is a domestic corporation with its principal place of business at Oklahoma City, where it publishes a newspaper of statewide circulation, which has a circulation in Garfield county. The action was filed in Garfield county, where plaintiff resides, and summons served on the defendant in Oklahoma county. Section 202, Comp. Stat. 1921, provides, in substance, that an action may be commenced against a domestic corporation in the county in which the corporation is situated, or has its principal place of business, or in the county where the cause of action or some part thereof arose. The Constitution of California has a section very similar to the above section of our statute. The court of that state construed the Constitution in the case of Tingley v. Times-Mirror Co. (Cal.) 77 P. 918, and in the body of the opinion it is said:

"The liability arises where the injury occurs, and the injury in the case of libel is peculiarly at the county in which the plaintiff resides, if, as is alleged, the plaintiff has published and circulated the libelous article there; and there it is that plaintiff is most injured by the publication."

¶2 This court in the case of Oklahoma Fire Ins. Co. v. Kimple, 57 Okla. 398, 157 P. 317, held the above section of our statute applied to all character of actions. By virtue of the above section of the statute, the venue of the action was either in Oklahoma or Garfield county. The action being rightly brought in Garfield county, summons could be served upon the defendant in Oklahoma county. The objection to the return or service we think is without merit. The defendant assigns and argues many errors, among which is the giving of instruction No. 7. This instruction embraces many of the points involved upon this appeal, and we will refer to this instruction first. The court in the above instruction defined libel, and advised the jury, first, that the publication was not privileged; second, was libelous per se; and, third, under the pleadings was presumed to be false. The defendant pleaded "general denial", "absolutely privileged," "qualifiedly privileged," and other matters in mitigation of damages. As to whether the publication was privileged, both parties apparently concede that if the publication imputed crime to the plaintiff, the same was not privileged, or at least was not qualifiedly privileged. For the purpose of this case, we will concede that position correct. The plaintiff taking the position that the article was not privileged, because it imputed to plaintiff the crime of manslaughter in the second degree, and also a misdemeanor, to wit: willful neglect of official duty, was the pleading sufficient to charge or impute the plaintiff guilty of the crime of manslaughter in the second degree? In construing the language used in a libelous publication, this court has stated as follows:

"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 See Kee v. Armstrong Byrd Co., 75 Okla. 84, 182 P. 494, 5 A. L. R. 1349; Phoenix Printing Co. v. Robertson. 80 Okla. 191, 195 P. 487. The petition, after referring to certain excerpts, alleges:

"Which publication aforesaid the defendant embodied in the center, thereof, or near the center, the picture of this plaintiff, without his knowledge or consent and did, on said date, cause said false and defamatory matter to be printed and published and circulated as a part thereof in said Garfield county and in an advertisement in large capital letters, practically an inch in length, entitled 'ENID IMBECILES DIE OF INFLUENZA, INADEQUATELY TREATED, IS CHARGED,' in the issue of said paper of February 11, 1919, of the Oklahoma City Times, a daily newspaper published and circulated in Garfield county, state of Oklahoma, and of general circulation therein, which said newspaper has a large circulation among the people of the city of Enid and outside of the city of Enid, in Garfield county, from whom said plaintiff derives a large amount of professional business and in whom the said people had much confidence; that the 'Enid', as so entitled, had reference to and means the city of Enid, in Garfield county and state of Oklahoma; 'that when said defendant published in said article 'Imbeciles Die of Influenza, Inadequately Treated' it meant to say and did say that plaintiff, who was then superintendent of the school for Feeble Minded at Enid, was neglecting his duty and was negligent and by reason thereof was guilty of manslaughter and when it charged the word 'neglects,' as set forth in said article, it meant to charge that the said plaintiff was negligent and was guilty of a misdemeanor."

¶4 Manslaughter in the second degree is defined by section 1745, Comp. Stat. 1921, as follows:

"Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree."

¶5 Does the publication pleaded, when given its usual and ordinary meaning, impute that the death of the inmates was caused by the "culpable neglect" of the plaintiff? It does not directly impute the crime alleged to plaintiff. The rule applicable in such case is, if the publication does not directly impute the crime to plaintiff, but extrinsic facts are necessary to bring out the defamatory meaning, the law requires the allegation of such facts as inducement, in order that the actionable character of the words may...