ever, in each case, to their surviving the failure of the preceding trusts, rather than that he meant that in case of each of the trust funds there would be a different class to take under the ultimate limitation in favor of the next of kin; such conclusion being supported by the similarity of the ultimate limitation of the gift to T. T.; and therefore that the natural construction was, in the case of all the legacies, that the limitation was to those of the testator's next of kin at the time of his death who should survive the failure of the preceding trusts. And it was further held that no inference to the contrary could be drawn from the expression "whoever they may be," since such expression may be explained either as meaning a

doubt in testator's mind as to who will be his next of kin, or as meaning that he is in doubt as to which of the next of kin may survive the period, and since to hold that the class is to be ascertained at the failure of the prior trust in respect of each trust fund would be in effect to strike out the word "living." And, further, that no such inference could be drawn from the exception of the descendants of his deceased nephew, as the same exception is made in the limitation over of the sum bequeathed in trust for T. T., where the class must be ascertained at testator's death; or from the fact that the residuary legatees would have been the testator's next of kin if he had died immediately after making his will. E. S. O.

GEORGE F. DUSABEK et al., Appts.,

V.

ANDREW C. MARTZ.

Oklahoma Supreme Court - May 4, 1926.

(121 Okla. 241, 249 Pac. 145.)

Libel, § 9-charging want of patriotism.

1. A publication that charges, in substance, a United States ex-soldier of the World War with being unpatriotic, with shirking his duty to his country in failing to enlist for service until forced by the Draft Act, and with doing everything possible to evade service, and specially charging that he married in order to secure exemption from service, but failed in his purpose and had to go, and charging him with being an active officer of the American Legion for pecuniary gain, is “libelous per se." [See annotation on this question beginning on page 260.]

Libel, § 9

newspaper article.

2. Language used in a newspaper article which, when given its ordinary, natural, and obvious meaning, exposes the person concerning whom it is used to public hatred, contempt, ridicule, or obloquy, or which tends to deprive him of public confidence or to injure him in his occupation, is "libelous per se" and actionable.

[See 17 R. C. L. 286; 3 R. C. L. Supp. 645; 4 R. C. L. Supp. 1115; 5 R. C. L. Supp. 937.]

Libel, § 9-charging legal act.

3. It is not a sufficient answer to a charge of libel to show that the pub

Headnotes by RILEY, J.

lication only accuses plaintiff of having done that which he might legally have done, the rule being that it is not libelous to charge a person with having done that which he might legally and properly have done. The rule of this court, announced in Kee v. Armstrong, B. & Co. 75 Okla. 84, 5 A.L.R. 1349, 182 Pac. 494, to the effect that "words charging one with being engaged in a perfectly lawful transaction, or merely doing that which he has a legal right to do, are not actionable per se," is overruled.

[See 17 R. C. L. 296; 3 R. C. L. Supp.

647.]

APPEAL by defendants from a judgment of the District Court for Blaine County (Edwards, J.) in favor of plaintiff in an action brought to recover damages for an alleged libel. Affirmed.

The facts are stated in the opinion of the court. Messrs. I. H. Lookabaugh and Horton & Horton for appellants.

Messrs. Seymour Foose, R. C. Brown, W. R. Bleakmore and John Barry, for appellee:

The article in question is libelous

per se.

Cobb v. Oklahoma Pub. Co. 42 Okla. 314, 140 Pac, 1079; McKenney v. Carpenter, 42 Okla. 410, 141 Pac. 779; Hubbard v. Cowling, 36 Okla. 603, 129 Pac. 714; Kelly v. Roetzel, 64 Okla. 36, 165 Pac. 1150; Bratcher v. Gernert, 77 Okla. 12, 185 Pac. 1081; Dimmitt v. McDowell, 60 Okla. 88, 158 Pac. 290; Phoenix Printing Co. v. Robertson, 80 Okla. 191, 195 Pac. 487; Missouri, K. & T. R. Co. v. Watkins, 77 Okla. 270, 188 Pac. 99; Kee v. Armstrong, B. & Co. Okla. 151 Pac. 572; Spencer v. Minnick, 41 Okla. 613, 139 Pac. 130; Wiley v. Oklahoma Press Pub. Co. 106 Okla: 52, 40 A.L.R. 573, 233 Pac. 224; Fitch v. De Young, 66 Cal. 339, 5 Pac. 365; Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Flood v. News & Courier Co. 71 S. C. 116, 50 S. E. 637, 4 Ann. Cas. 685; Black v. State Co. 93 S. C. 467, 77 S. E. 51, Ann. Cas. 1914C, 989; Atwater v. Morning News Co. 67 Conn. 504, 34 Atl. 865; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Skrocki v. Stahl, 14 Cal. App. 1, 110 Pac. 957; Farley v. Evening Chronicle Pub. Co. 113 Mo. App. 216, 87 S. W. 565.

Riley, J., delivered the opinion of the court:

Defendant in error as plaintiff below obtained judgment in the trial court for libel against the plaintiffs in error as defendants below, from which judgment this appeal is prosecuted. For convenience the parties will be referred to herein as they appeared in the trial court.

The only material questions presented in this appeal are whether or not the article complained of in plaintiff's petition was libelous per se, and whether or not it was necessary for the plaintiff to prove actual damages in order to sustain a recov

defendants edited and owned the Okeene Leader, both being weekly newspapers published in Okeene, Okl. The article complained of, which was admitted and shows upon its face to have been published of and concerning the plaintiff, is as follows:

"In Answer: The Okeene Record, the 'germ' of literature and logic, last week in attempting to make a reply in defense of the American Legion, of which he boasts he is a member (however, by the act of compulsory army service only), takes a direct slap at the editor of the Leader. He tells the folks through the columns of his paper that he is a member of the American Legion and proud of it, and a little further down states that the editor and owner of the Leader are about the same age as he, intimating that the editor of this paper should have been in Uncle Sam's service during the World War. The first thing we wish to call your attention to, Mr. Martz, is the fact that had Uncle Sam come and demanded our services, such as he did yours, we, too, could have boasted of a few months' service in a training camp, far away from the sound of the enemy's guns. Secondly, the editor of the Leader made no attempt to keep out of the service. Long before the draft bill was passed we conversed with an army recruiting officer at Fairview. He was very frank in his assertions, and in practically these words said: "I have no d- time to take up with men who have families; we are after a bunch of these yellow-backed single guys, who should be here now volunteering."

"Later on, Martz, the draft bill was passed. In that bill was a proviso that married men would be the last called to the colors. It caused the marriage license clerk to work overtime; the ministers were doing a land office business. But you remember it was discovered that the

(121 Okla. 241, 249 Pac. 145.)

The

men who were married after the declaration of war would be called the same as a single man, thus causing many to leave their war brides and enter into the service with their more patriotic companions. editor of the Leader was not guilty of any of these acts. We were married several years before the opening of the World War. Our boy was quite a lad when the Draft Law came into effect; hence, not like some others, we were not hiding behind the folds of a woman's garments. We made answer to our questionnaire the same as you-all that was required of any American citizen. We made no attempt to evade the draft, and had it been our lot to be called we would have done our bit, expecting nothing in return. When we came back we would have also considered one comrade as good as another, whether he was rich'or poor; the same feeling would have existed here as did in the front line trenches, for we are not much on 'society lines,' as we have never yet found a man so low that we would not clasp his hand in friendship, nor a man so high up in this life that we considered him better than we were. "There should be a litle distinction, however, between the boys who fought 'over there' and the ones who just entered a training camp. our opinion the man who served best should be given preference in the selection of your officers for the American Legion post. The Okeene Post, we believe, would have made a better showing had such men as Floyd Fullbright, Ira Towns, John Adams, Bill Marcoux, and others, who faced the enemy over therereally did some fighting and who did not belong to the commissary department or the mule drivers' brigade.

To

"You speak of being engaged in a more necessary occupation. We were both, practically speaking, in the same line of industry-both printers. The Leader editor managing a newspaper, while you were in the mechanical department of a newspaper. Did you attempt to volunteer? Was there anything at

any time to prevent you from offering your services? Is it not a fact that your constant aim was to some way, somehow, get by, and that you were among those who stayed out of the game as long as possible? We respect the uniform you wore, you are worthy of some consideration for wearing it, but when it comes down to real patriotism, real Americanism, we consider we will stand the acid test along with some of those to whom Uncle Sam said 'Come, I want you,' and would have never served under any other consideration.

"Yes, Mr. Editor of the Okeene Record, you should be proud of your membership in the American Legion post, to the extent of $15 per month during Trades Day season. That ought to swell you up with pride.

"Sure enough Curtis Evans may not be a member of the Okeene Post, American Legion, and if we are rightly informed there are many overseas men here who are not members of the Okeene Post because of the narrow-mindedness of the ruling members of this post. Even if he is not a member of any post he is, by reason of his service, entitled to at least human care and human interest, even if a social line has to be drawn and Evans was never shot in the foot.

"The owner of the Leader called on Curtis Evans, and was there informed that no member of the Okeene Post except Patkowski had been there as such, that the Record man had been there presumably for news, and that Evans was asleep and was not disturbed. The Record man was able to acquire and publish an ugly story of Evans' condition prior to his being found in the well."

The plaintiff pleads this publication, that it was false, malicious, unprivileged, libelous, and exposed the plaintiff to public hatred, contempt, ridicule, and obloquy, and tended to deprive him of public confidence and injure him in his occupation as publisher of his paper and to injure him in his good name and

reputation; that the same caused him great mental suffering and injured and wounded his feelings, all to his damage in the sum of $10,000 for which he prays judgment.

Defendants demurred to the petition on the ground that it did not state a cause of action, the demurrer was overruled by the court, and the defendants make this their first assignment of error. They contend that the publication was not libelous per se; that is, within itself, on its face, according to the meaning of the words, and, no actual damages being alleged, the petition was not sufficient to state a cause of action. They contend that the language used in the article only charged plaintiff with doing what he had a legal right to do.

As to whether the article is libelous per se, we must consider in our determination only the thought, idea, impression, or opinion conveyed to the reader by the publication, everything appearing in the article, be it inference, insinuation, irony, ridicule, sarcasm, the friendly or unfriendly tone, its arrangement, form, and style. The court for such purpose becomes the lay person to whom it is addressed, and in arriving at the meaning everything appearing in or from the article which, unaided by extrinsic facts or circumstances, has a natural tendency to change, color, or formulate its meaning, must be considered. Conversely, if the aid of innuendo is necessary to make the meaning defamatory, it is not libelous per se. Innuendo as here used is strictly in its legal application as an averment of the meaning of alleged libelous words. Johnston v. Morrison, 3 Ariz. 109, 21 Pac. 465.

If the article, when so considered, engenders in the mind of the reader a conclusion, impression, or opinion of the plaintiff that is defamatory and as such tends to expose plaintiff to public hatred, contempt, obloquy, or tends to deprive him of public confidence or lower him in the opin

ion of men whose standard of opinion the court can

Libel-news

properly recognize paper article.

or tends to induce them to entertain an ill opinion of him, it is libelous per se. See Bratcher v. Gernert, 77 Okla. 12, 185 Pac. 1081; Phoenix Printing Co. v. Robertson, 80 Okla. 191, 195 Pac. 487; Wiley v. Oklahoma Press Pub. Co. 106 Okla. 52, 40 A.L.R. 573, 233 Pac. 224; Stevens v. Snow, 191 Cal. 58, 214 Pac. 968; Choctaw Coal & Min. Co. v. Lillich, 204 Ala. 533, 11 A.L.R. 1014, 86 So. 383; Jones v. Greeley, 25 Fla. 629, 6 So. 448; Stewart v. Pierce, 93 Iowa, 136, 61 N. W. 388; Finch v. Vifquain, 11 Neb. 280, 9 N. W. 43. The publication cannot be measured by its effect when subjected to the critical analy sis of a trained legal mind; it must be measured by its natural and probable effect upon the mind of the average lay reader. Stevens v. Snow, 191 Cal. 58, 214 Pac. 968. The fact that the thought conveyed is by way of insinuation or inference of false acts or facts is immaterial, for to say that one may injure another through insinuation or infer-. ence without being held accountable is to license the assassin of good names to do more effectively indirectly without risk that which he could not do directly.

It is settled in this state that the intent or motive of the defendant in a libel case is immaterial, except where punitive damages are sought. Harris v. Rich, 104 Okla. 120, 229 Pac. 1080. A man's good name and reputation is his most valuable personal and property right and one that no man may wrongfully injure or destroy without being held accountable therefor.

It is contended by defendants that the article is merely couched in language intended to wound the feelings of plaintiff, and that it merely charged him with having failed to volunteer in the recent war, with waiting to be inducted into service under the Selective Service Act (U. S. Comp. Stat. §§ 2044a-2044k, 9

(121 Okla. 241, 249 Pac. 145.)