It may be that the judgment in this cause should be reversed for errors in the admission of testimony; but, since the reversal is put upon one ground which destroys appellee's case and none other, I have not thought it worth while critically to investigate other grounds of alleged error. I am unable to concur in the opinion which has been written and will state my opinion with all possible brevity.
Section 6112 of the Code of 1907 provides that "all actions [against corporations] for personal injuries must be brought in the county where the injury occurred," and more that is not of present consequence. The single question presented then is: What does the statute mean in cases of alleged libel? In view of our statute, the rule in other jurisdictions is of no authority, though the reasoning of the cases elsewhere may point the way to a correct decision here — and I understand it to be conceded that the weight of authority is against the prevailing opinion. That opinion begins by reciting the allegation of the complaint to the effect that the libel complained of was published "in a newspaper published at Birmingham," and upon that peg the conclusion is hung that suit could not be maintained in the county of Blount notwithstanding the alleged libel was published in the last-named county. But the printing of libelous matter in a newspaper, without more, is not the publication with which the law of libel concerns itself, for, in that law, as I presume will not be denied — is in fact conceded in the prevailing opinion — publication means the communication *Page 46 of the libelous matter to some person other than plaintiff or defendant. There is no dearth of authorities, such as the courts are accustomed to follow. Thus, to cite a few of them, it was said at the Trial of the Seven Bishops, A.D. 1688:
"If a man write a libel in London and send it by post addressed to a person in Exeter, he is guilty of publication in Exeter." 12 St. Tr. 183.
And in 25 Cyc. 433, citing cases:
"The general rule is that an action for libel may be brought and tried in any county in which the libel is published or circulated."
And in 17 Ruling Case Law, § 120, p. 370:
"Civil actions for libel are transitory in their nature, and it is very generally held that such an action may be brought in any jurisdiction where the libelous article was published or circulated, even though the article was written or printed elsewhere."
And in note 5, 18 Am. Eng. Ency. of Law, p. 1119, citing American, English, and Canadian authorities:
"It is not the place where the libelous article is printed, but the place where it is published and circulated, that makes the words used actionable."
Such publication with legal malice is of the essence of libel. Weir v. Hoss, 6 Ala. 881. It takes publication, in the limited sense indicated, to constitute the injury of libel. And in accordance with this principle it has been held — necessarily, I think — that the proprietor of a newspaper cannot be adjudged to have published a libel unless it is proved to have been read as well as printed. Youmans v. Smith,153 N.Y. 214, 47 N.E. 265. Can there be any doubt, then, on the facts alleged, that the injury for which appellee seeks compensation occurred in Blount county? I think not. Nor is it of any consequence that the same injury may have been suable elsewhere. The prevailing opinion, in my judgment, concedes that the authorities sustain this view. That opinion, as I think, follows too closely a dissenting opinion in Julian v. K. C. Star Co., 209 Mo. 99, 107 S.W. 496, in holding the impolicy of the view taken by the authorities generally. In view of the plain language of the statute of this state, in which I am wholly unable to perceive any element of vagueness or uncertainty, such considerations are for the Legislature, not the court. If, however, such considerations are to be taken into account, it does not by any means appear that they weigh all on one side. It might be suggested, for example, that the author of a wrong of this character selects the places in which he will publish the libel. He does not consult the feelings or the interests of the person wronged. His purpose, if he is guilty of libel, is to injure the person against whom his libel is directed. He may publish it in every nook and corner of the state. Speaking impersonally, not so much of this case in particular as of cases of the sort in general, may it not be asked wherein lies the anomaly or injustice of calling the wrongdoer to account in any jurisdiction in which he has committed the wrong? The courts generally hold there is none, and I would stand by the judicial rule, which in this case is also the rule of the statute as it now is, leaving the Legislature to change it, if unfair, unjust, or impolitic.
Reference has been made to the Code form (section 5382, form 17) which omits allegation as to where the libel was published, but does, in effect, declare the sufficiency of a form in which damages are claimed "for falsely and maliciously publishing of and concerning him [plaintiff] in a newspaper published at __________ called __________ (or book, or writing, as the case may be) the following," etc. I think nothing could be clearer than that the word "publishing," where it occurs in this form, means "publishing" as that term is used in the law of libel, and that the term "published," as applied to a newspaper, or book may be, means nothing more than "printed." Moreover, to refer to a form as defining the substantive law in respect of what constitutes venue in the case in which the form is used is, I submit, something new in this jurisdiction. And again, how will the rule of the majority opinion be applied to the case of a writing, for example, a letter or circular not printed in a newspaper or book? It cannot be done. And there ought to be one rule for all defendants alike. I think the pleas in abatement were bad, as the trial court held them to be, and that this appeal should be determined upon the merits of the cause.
GARDNER, J., concurs in the foregoing dissent.