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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

Libel-news

paper article.

ion of men whose standard of opinion the court can properly recognize 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 analysis 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 inference 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.)

Fed. Stat. Anno. 2d ed. p. 1136), and that he never came in contact with the enemy. If that were true, it could not be considered libelous per se, because those who served under the Selective Service Act served honorably and well and are properly accorded by every good citizen the highest esteem and respect. As for those who failed to meet the enemy, it was no fault of theirs. They were willing and true patriots. However ill it becomes those who did not serve their country in uniform to cast aspersions upon those who did, and thereby attempt to lessen the gratitude and respect of the public for honorable and faithful service rendered, we agree that such is not libelous per se.

Such, however, was not the thought or the meaning conveyed by the article. The purpose of written words is to convey the thought of the author. The tone of written words is subject to as many variations as the tone of spoken words. The use of a given word or phrase often makes the stroke that of the feather adorning the reputation of a man; the use of another may make the stroke that of a hammer, destroying the reputation of a man. Words quite innocuous on their face may, by reason of their peculiar setting and relation with other words, be cruel, slanderous, and vicious. The article here unmistakably portrays the tone and the mental viewpoint of the author to be unfriendly and contemptuous of the plaintiff. The author compares his record as a private citizen during the war with the military record of plaintiff. Every statement, fact, inference, and insinuation in the article refers to the author or to the plaintiff. plaintiff is repeatedly charged with deliberately avoiding war service as long as was humanly possible.

The

It states the author did not volunteer because a recruiting officer advised him that married men were not wanted, but that it was "those yellow-back single guys that were 49 A.L.R.-17.

wanted," clearly referring and applying such epithet to the plaintiff. It states that many desperately sought to evade the draft and heartlessly entered into hasty and convenient marriages to aid them therein, but that such avenue of escape was in vain. The author, it boastingly says, was guilty of none of these things. He did not hide behind the folds of a woman's garment. It states that the plaintiff, in spite of all, finally had to go, but that after going he purposely managed to get into the commissary department to insure his personal safety. The article makes the pointed inquiry: "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?"

by

The publication concludes charging that plaintiff belonged to the American Legion for the selfish purpose of making $15 per month out of it, and that he ought for that to be swelled with pride. This last, we think rather a sordid, hypocritical, sarcastic insinuation that was intended to picture the plaintiff as an arch hypocrite at the head of а patriotic organization. This thought is made more clear by the reference that deserving members of the post who had actual service should be placed at the head of the post instead of the plaintiff. The article naturally conveyed these thoughts, and was intended to, and did, have the effect to expose plaintiff to public hatred, contempt, scorn, and shame, to deprive him of public confidence, and lower him in the estimation of men.

We pass the facts proven by the record wherein it is shown that plaintiff volunteered five months before the draft, that he did not marry until after the war, that he served honorably in a combat division, and was sincere in his membership in the patriotic organization, the American Legion, for such facts only go to show the vicious depravity that prompted the attack, and

could be considered only in determining the amount of damages.

The charge of being a groom to a "war bride" for the purposes of a "slacker" is to say that he designedly prostituted the most sacred relation known to man; that failing in the true object of his matrimonial venture, he sought and secured a sinecure in a noncombat arm of the service. The reader is forced to conclude that plaintiff is not only without chivalry toward women, but a panicky, fear-stricken, skulking, unprincipled coward, devoid of honor and principle and without feeling or courage for his country's sake. Finally it is charged that, having escaped with his contemptible body and soul, he is an arch hypocrite, a posing sunshine patriot, and is using the honor and privilege of being the head of the ex-service men's patriotic organization for mercenary purposes. Such being the thought conveyed to us by the article, we say the same tended to lower the plaintiff in the estimation of all honorable men and women.

This court, in the case of Bratcher v. Gernert, 77 Okla. 12, 185 Pac. 1081, held a publication to be libelous that accused one of trying to interfere and prevent the success of a county fair, couched in such terms as to picture the plaintiff as being a man devoid of public spirit. The court, in discussing the article, said: "Without extended comment we deem it sufficient to say that it conclusively appears from the words used that the gist of the article is: That the plaintiff is not a public spirited citizen; that he is seeking to take advantage of and to profit by the industry and public enterprise of other citizens of his community; and that he is unworthy of confidence and should not be patronized by the public. These accusations, in our opinion, expose him to public. hatred and contempt, and certainly tend to deprive him of public confidence and to injure him in his occupation."

The article complained of herein far more bitterly makes the same

charge, and, in addition, charged the plaintiff with being devoid of every patriotic impulse, and with using his undeserved standing and charging want

of patriotism.

office in the American Legion for selfish, mercenary purposes.

In the case of Choctaw Coal & Min. Co. v. Lillich, 204 Ala. 533, 11 A.L.R. 1014, 86 So. 383, the use of the word "slacker" was held to be libelous per se. It is generally held that a publication imputing cowardice is libelous per se. 36 C. J. 1167; Price v. Whitely, 50 Mo. 439; Byrne v. Funk, 38 Wash. 506, 80 Pac. 772, 3 Ann. Cas. 647. The courts have frequently held that to charge one with being a hypocrite is libelous per se. 36 C. J. 1170. The leading case is Jones v. Greeley, 25 Fla. 629, 6 So. 448, wherein the court said: "This court has held that to publish of and concerning any person any language which tends to bring him into ill repute, or to destroy the confidence of his neighbors in his integrity, is actionable per se. Montgomery v. Knox, 23 Fla. 595, 3 So. 211. It is too apparent to require comment, that the language complained of was calculated to produce just such injury to appellee. It in effect brands him as a hypocrite, and as one who, under the cloak of hypocrisy, oppresses the widow and orphan. What worse could be said of him, short of imputing high crime? To be published as a hypocrite the authorities hold is actionable (Townshend, Slander & Libel, § 177; Thorley v. Kerry, 4 Taunt. 355, 128 Eng. Reprint, 367, 9 Eng. Rul. Cas. 1; Maloney v. Bartley, 3 Campb. 213); and when to that is added the stigma of such greed as impels him to inflict untold sorrow upon the most helpless members of the community, the case becomes. one of much stronger actionable character."

In Finch v. Vifquain, 11 Neb. 280, 9 N. W. 43, it was said: "This charge is that the plaintiff 'was an arch hypocrite and scoundrel, who was simply using his talents for

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

money-making purposes, and not the provisions of our statutes does

through any sincerity in the cause in which he is laboring.' This charge must have been intended by the publishers to degrade the plaintiff in the estimation of the community, and deprive him of that influence and temporal advantage which usually result from a sincere and blameless course of life."

It has been held to be libelous per se to charge one with being unfaithful to his employment (Burghardt v. Scioto Sign Co. 191 Iowa, 384, 179 N. W. 77), or with abusing the confidence of a friend and thereby taking advantage of him (Stewart V. Pierce, 93 Iowa, 136, 61 N. W. 388). See, also Eckert v. Van Pelt, 69 Kan. 357, 66 L.R.A. 266, 76 Pac. 909.

No one may doubt the loathing contempt the author held for Martz, and through his article he gave vent to his spleen, expressing himself in defamatory, scurrilous terms. This government, through its courts, owes its patriotic sons a duty to protect them from such slandering, traducing defamers, who would, by their cynical lies, destroy patriotism, and take that from a man which neither he nor the courts could return-honor and reputation.

We feel that a court would be recreant in its governmental duty not to stay the hand of one who would so crucify patriotism.

The plaintiff has come into court seeking redress for an attack that could have been the moving cause of a tragedy; for this he is to be commended. He has pursued the orderly way to settle individual wrongs as well as the adopted manner of settling wrongs between his country and others. His injury is in a measure the injury of the public; it should be redressed, and those who vilify the honorable service record of a soldier should be warned that they do so at their peril.

It is next insisted by the defendants that the verdict may not be sustained because there was no proof of actual damages. A publication that is libelous per se both under the common law and under

not require that special damages be pleaded or proven. Kelly v. Roetzel, 64 Okla. 36, 165 Pac. 1150; Gundram v. Daily News Pub. Co. 175 Iowa, 60, 156 N. W. 840. The plaintiff is not required to make proof of damages in such instance. See also Jimeno v. v. Commonwealth Home Builders, 47 Cal. App. 660, 191 Pac. 64.

Counsel for defendants herein next urge that the article cannot be held to be libelous per se, because it did not charge the plaintiff with doing anything other

than he might legal-charging legal ly do. With this

contention we are unable to agree. In the fourth paragraph of the syllabus in the case of Kee v. Armstrong, B. & Co. 75 Okla. 84, 5 A.L.R. 1349, 182 Pac. 494, this court said: "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."

An examination of that case discloses that such pronouncement was dictum. We approve the conclusion reached in that case, but cannot accept the rule above quoted.

It is only necessary to refer to a few of the numerous cases wherein it has been repeatedly held that publications exposing one to public hatred, contempt, ridicule, or obloquy are libelous per se where the acts charged were not illegal to show such rule to be unsound. See Bratcher v. Gernert, supra; 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. In the Wiley Case, supra, an article stating that a father condoned the act of an officer in shooting his son when in the act of committing a felony was held to be libelous per se because it pictured the father as being heartless and unnatural. Such a contention flies in the face of every accepted definition of libel. The true rule is that, 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.

In the case of Bennet v. Commercial Advertisers' Asso. 230 N. Y. 125, 129 N. E. 343, the Court of Appeals of New York, in discussing a publication which charged a Congressman with putting a joker in a bill, answered the contention urged by counsel for the defendants as follows: "The libel law has never been confined to charges of illegality or lawbreaking. Any false accusation which dishonors or discredits a man in the estimate of the public or his friends and acquaintances or has a reasonable tendency so to do is libelous. In Triggs v. Sun Printing & Pub. Asso. 179 N. Y. 144, 66 L.R.A. 612, 103 Am. St. Rep. 841, 71 N. E. 739, 1 Ann. Cas. 326, a libel was stated to be a written or printed statement or article, published of or concerning another, which is false and tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obloquy, or shame."

The same contention was made in the case of Stevens v. Snow, 191 Cal. 58, 214 Pac. 968, and the Supreme Court of California said: "Appel

erred in instructing the jury that the publication was libelous per se, and they invoked the rule that 'it is never libelous to accuse a person of having done that which he may legally and properly do.' The validity of this rule may be conceded, but in its application the words 'and properly' must not be ignored. It is not sufficient answer to a charge of libel to show that the publication only accuses the plaintiff of having done that which he may legally do. It has never been the law that a publication, to be libelous, must accuse a person of having committed a crime or otherwise violated some law."

In so far as the case of Kee v. Armstrong, B. & Co. supra, holds that to charge one with doing nothing more than he might lawfully have done is not libelous per se, the same is overruled.

The judgment of the trial court is affirmed.

Branson, V. Ch. J., and Harrison, Mason, Lester, Hunt and Clark, JJ.,

concur.

Nicholson, Ch. J., absent, not participating.

Petition for rehearing denied July

lants complain that the trial court 6, 1926.

ANNOTATION.

Libel and slander: imputing disposition to avoid service in war.
[Libel and Slander, § 9.]

As to libel or slander in charging one with being a "slacker," see annotation in 11 A.L.R. 1017 [Libel and Slander, § 9].

As a general rule; written words exposing the person to whom they refer to hatred, ridicule, contempt, shame, or disgrace, are libelous per se. 17 R. C. L. 286.

An extended examination of the authorities has disclosed no case, other than the reported case (DUSABEK V. MARTZ, ante, 253), dealing with the subject under annotation.

In the reported case (DUSABEK V. MARTZ) it was held that a publication which charged that the plaintiff deliberately avoided war service, as long as was humanly possible, by being a groom to a "war bride," and

called him one of "those yellowbacked single guys," and which further charged that, after going into the Army, he managed to get into the commissary department to insure his personal safety, and also charged that the plaintiff, upon his return, became the head of a patriotic organization for mercenary purposes, tended to lower the plaintiff in the estimation of honorable men and women, and was libelous per se.

Although not charging the plaintiff with avoiding war service, it was held in Choctaw Coal & Min. Co. v. Lillich (1920) 204 Ala. 533, 11 A.L.R. 1014, 86 So. 383, that posting his name, along with others, as a man not at work in a mine operated by defendant, under the caption "List of Slackers," was libelous per se. W. S. C.

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