Oklahoma Pub. Co. v. Gray

• Decision Date: 10 September 1929
• Docket Number: 12186.
• Citation: 280 P. 419,138 Okla. 71,1929 OK 309
• Parties: OKLAHOMA PUB. CO. v. GRAY.
• Court: Oklahoma Supreme Court

280 P. 419

138 Okla. 71, 1929 OK 309

OKLAHOMA PUB. CO. v. GRAY.

No. 12186.

Supreme Court of Oklahoma

September 10, 1929

Syllabus by the Court.

There is no fixed rule by which a court can determine whether or not a statement is libelous per se, and that question can be determined only by an examination of the statement itself.

Words used in an alleged libelous article are to be construed by the most natural and obvious meaning, and in the sense that would be understood by those to whom they were addressed.

Where the publication charges the plaintiff with nothing that he might not have legally and properly done, the same cannot be held to be libelous per se.

The article complained of examined, and held not to be libelous per se.

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.

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. Kee v. Armstrong, Byrd & Co., 75 Okl. 84, 182 P 494, 5 A. L. R. 1349.

If the alleged defamatory words are not actionable on their face but derived 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.

If the publication is not libelous per se, and special damages are not alleged, the petition does not state a cause of action.

In pleading special damages, it is insufficient to allege generally "that said false and defamatory matter so published and circulated in Kingfisher county and throughout the state of Oklahoma by said defendant of and concerning said plaintiff, and of and concerning said plaintiff in reference to his profession and business, exposed said plaintiff to public hatred, contempt, ridicule, scorn, and obloquy, and with the intent to deprive him of public confidence and injure him in his profession and business, and by reason of the publication and circulation aforesaid in Kingfisher county, state of Oklahoma, of said matter by defendant, said plaintiff has been damaged in the sum of $30,000," without showing by proper averment how the special damages were occasioned.

Error from District Court, Kingfisher County; James B. Cullison, Judge.

Action by Lee M. Gray against the Oklahoma Publishing Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

Embry, Johnson & Tolbert, of Oklahoma City, for plaintiff in error.

Warren K.

Snyder, of Oklahoma City, for defendant in error.

ANDREWS J.

The defendant in error was the plaintiff and the plaintiff in error was the defendant in the trial court, and they will be referred to herein as they appeared in the trial court. The defendant published in the Daily Oklahoman, a daily newspaper owned and published by the defendant, a certain statement, as follows:

"Lawyer Arrested on Fraud Charge.

Lee M. Gray, Counsel for Green, Faces Federal Trial.

Lee M. Gray, attorney, of Hennessey, was arrested Wednesday night by a deputy United States marshal on an indictment issued by the federal grand jury in session at Guthrie last week charging him with using the mails to defraud. He was taken before United States Commissioner Earnest G. Chambers and released for appearance in court here under a bond of $5,000.

Gray is charged with the same violations of the federal law for which Ellsworth J. Green and his son, E. H. Green, are held for trial. It is alleged that he conspired with the Greens in promoting five oil stock selling companies controlled by the Great Western Guarantee Investment Company that offered and sold stock under a guarantee that subscribers would double their money by a certain date. The contracts given all subscribers, it is said, contained the 're-sale clause' which caused the indictment of the Greens,"-which was distributed in Kingfisher county and in the cities of Kingfisher and Hennessey.

Plaintiff contends that this statement was false and defamatory and that the defendant "* * * willfully, maliciously, wickedly, intending to deprive the plaintiff of public confidence, and to injure him in his profession and business, and to expose him to public hatred, contempt, ridicule, scorn, and obloquy, did, on or about the 2d day of August, 1918, maliciously publish and circulate in Kingfisher county and in the town of Hennessey and in the city of Kingfisher * * *" the said article.

The plaintiff filed his petition in the district court of Kingfisher county against the defendant, in which he alleged, among other allegations, in substance, the following:

That plaintiff for 25 years had been a successful lawyer, living and practicing law in the city of Kingfisher and the town of Hennessey; that the defendant was a corporation and the publisher of the Daily Oklahoman; that plaintiff and others, including the Greens named in said article, were jointly indicted, as stated by plaintiff, "* * * to put it briefly, with selling worthless stock to the public generally; that they devised a scheme to sell worthless stock to the public generally, and in furtherance of that scheme they used the mail service of the United States," a copy of the indictment being set out therein; that, at the trial of the plaintiff and his codefendants on the indictment, the attorney for the plaintiff made a statement to the jury, which was set out in the petition, and which consisted of an extensive statement of what the plaintiff's attorney said the evidence would show on behalf of the plaintiff and included hearsay statements, statements that were incompetent, irrelevant, and immaterial to the issues herein, and statements which were purely self-serving, including what the attorney himself had done, and conversations which the attorney had had with other people in the absence of the defendant herein, or its officers and agents; that it took about a month to try the case of the indictment, and for 16 days the plaintiff had to sit there listening to the unfolding of the cause against Green, and that at the conclusion of the evidence the demurrer of the plaintiff thereto was sustained; that a receiver was appointed for the oil companies thereafter named in the indictment, and the receiver brought a suit against the plaintiff and others, and upon a trial thereof plaintiff testified that he was not connected with the Greens as counsel or otherwise, and that case was dismissed as to him, all of which was a matter of record in the district court of Oklahoma county, and the defendant knew, or could, with reasonable diligence, have ascertained, that the plaintiff was not counsel for the Greens.

"That when said defendant published said article in said issue of said newspaper it meant to say and did say that this plaintiff was counsel for said Greens and acting as their attorney and counsel for the purpose of using the United States mails in furtherance of a fraudulent and criminal conspiracy to sell worthless stock in oil companies to certain persons named in the indictment and to the public generally; that the said defamatory matter so published and circulated by said defendant in said Kingfisher county Oklahoma, of and concerning this plaintiff and of and concerning his business and profession, was false and untrue, and known to said defendant to be false and untrue at the time said defendant so published and circulated the same, and was so published and circulated in Kingfisher county by said defendant with the intent to destroy the good name and reputation and business of the plaintiff and to cause him pecuniary loss in his profession and business.

That said false and defamatory matter so published and circulated in Kingfisher county and throughout the state of Oklahoma by said defendant, of and concerning said plaintiff and of and concerning said plaintiff in reference to his profession and business, exposed said plaintiff to public hatred, contempt, ridicule, scorn, and obloquy and with the intent to deprive him of public confidence and injure him in his profession and business, and by reason of the publication and circulation aforesaid in Kingfisher county, state of Oklahoma, of said matter by defendant, said plaintiff has been damaged in the sum of $30,000.00."

"That said defendant designedly, willfully, wantonly, wickedly, and premeditatedly, without regard to human rights or without regard to human feelings, and in order that more people in Kingfisher county and throughout the state of Oklahoma should be attracted to and read said article, the caption to said article was printed in large letters and under conspicuous headlines, the said defendant knowing the said headlines to be false and defamatory, thereby trying to assassinate the character and reputation of the plaintiff and receiving the benefit of extending the circulation over said county and state by reason of said sensational article which...