Turner v. Crime Detective

• Citation: 34 F. Supp. 8
• Decision Date: 01 August 1940
• Docket Number: No. 335.,335.
• Parties: TURNER et al. v. CRIME DETECTIVE et al.
• Court: U.S. District Court — Northern District of Oklahoma

34 F. Supp. 8

TURNER et al. v. CRIME DETECTIVE et al.

No. 335.

District Court, N. D. Oklahoma.

August 1, 1940.

George W. Reed, Jr., of Tulsa, Okl., for plaintiffs.

C. H. Rosenstein, of Tulsa, Okl., for defendant.

FRANKLIN E. KENNAMER, District Judge.

This action was instituted by the surviving relatives of Leonard Turner, deceased, for the recovery of damages for an alleged libel published and circulated by the defendants, concerning the deceased, but after his death. The only defendant upon whom process has been served has interposed its motion to dismiss.

The only question presented is whether one who falsely, and without a privilege so to do, publishes libelous matter of a deceased person, is liable to the estate of said person or to his relatives.

At common law, a cause of action for libel did not survive the deceased, and neither was there liability to the estate of said person nor to his relatives. See Restatement of the Law of Torts, Vol. 3, Sec. 560; Corpus Juris vol. 37, Sec. 295; Skrocki v. Stahl, 14 Cal.App. 1, 110 P. 957; Bradt v. New Nonpareil Co., 108 Iowa 449, 79 N.W. 122, 45 L.R.A. 681.

Unless an Oklahoma Statute provides for liability in such a case, there can be no action for the recovery of damages for libeling a deceased person.

Several provisions are contained in the Oklahoma Statutes concerning libel. A consideration of the various provisions is necessary to determine the questions presented. At the outset, Sec. 1052 Title 12, Okl.St.Ann. provides as follows: "No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant."

The above provision was considered by the Oklahoma Supreme Court in Alles v. Interstate Power Co., 176 Okl. 252, 253, 55 P.2d 751, in which it was held that a motion to dismiss was properly sustained when the plaintiff dies, even while an appeal was pending to the Supreme Court taken by the plaintiff below after a demurrer was sustained and the cause dismissed. The facts involved in the cited case differ from those here presented, in that the action had been started during the life time of the deceased, while here the alleged libel was committed after the death of the deceased.

Sec. 1444, Title 12, Okl.St.Ann., is as follows: "In all civil actions to recover damages for libel or slander, it shall be sufficient to state generally what the defamatory matter was, and that it was published or spoken of the plaintiff, and to allege any, general or special damage caused thereby, and the plaintiff to recover shall only be held to prove that the matter was published or spoken by the defendant concerning the plaintiff. As a defense thereto the defendant may deny and offer evidence to disprove the charges made, or he may prove that the matter charged as defamatory was true, and in addition thereto, that it was published or spoken under such circumstances as to render it a privileged communication."

The above provision refers to the defamatory matter being published or spoken of the plaintiff, and provides for a recovery by the plaintiff. No mention is made of relatives or an estate. No reason is advanced for a loose construction of the above Statute; consequently, such Statute was strictly construed, and as so construed provides for a recovery by a plaintiff who has been defamed.

Two statutory provisions tend to establish the right of relatives to recover damages for defaming or scandalizing a deceased. They are Section...