The writer cannot agree with the conclusions of the majority of the court in affirming the trial court, but to make clear the grounds of his dissent, it is necessary to state in a general way what it was that the plaintiff's petition charged. We take this from the brief of the plaintiff in error, the court having stated that it would consider that to be a true copy of the petition and the defendant not having contended that it was not. Further, it should be observed that the order of the trial court was upon a general demurrer. Both parties admit that. So, the only question to be determined is whether or not the petition stated facts sufficient to constitute a cause of action, and since the plaintiff complains of the order, he has the burden of convincing us that the petition did allege facts sufficient to constitute a cause of action.
In his petition the plaintiff alleged that he was and for years had been a printer engaged in the business of printing briefs; that at all of the times of the commission of conduct charged against the defendant, the defendant was a member of this court; that when the opinion of this court in the case of Oklahoma City v. Baldwin was handed down, that being a case in which the plaintiff was not a party, and with which he had no concern and no connection other than that he had as a printer printed the briefs of the plaintiff in error, the defendant falsely stated that the brief printer, meaning the plaintiff, had for some time been disseminating a malicious libel and slander against this court and some of its members, having reference to the fact that the plaintiff had published an opinion of the Criminal Court of Appeals in a case mentioned in the petition, and the complete argument of one of the attorneys in a case theretofore tried in the district court of Oklahoma county, and that the defendant wished it known that he would not participate in or consider any case in this court so long as he might be a member, in which the briefs might be printed by said printer, and that later, on the same date, he stated that the plaintiff was the printer he had in mind in making those remarks.
The plaintiff further alleged that the defendant published a dissenting opinion in said case of Oklahoma City v. Baldwin, and set forth the dissenting opinion in full in the petition, alleging that it was false, defamatory, and malicious, the dissenting opinion briefly being of this purport: That the defendant had announced his dissent and his reasons, and had stated that he would hand down a written dissenting opinion stating his views. That he disagreed with the conclusion of the majority on the ground that the majority opinion overlooked certain controlling decisions, but that he would not discuss the matter because the present plaintiff had printed the briefs of the plaintiff in error. It then recited that brief printers had been permitted to obtain extensions of time for parties in which to print, serve, and file briefs, and were agencies of the parties, and that the briefs of these printers became the agencies through which the court considered cases pending before it. It asserted that the court should protect itself against slanderous and libelous conduct of persons connected with it, and then charged the plaintiff with the making of a report which was untrue and unfair in that he printed only the opinion in one case and only one argument in another, and did not print other matters which would have fairly represented the whole of the proceedings. The opinion then went on as follows:
"The object of this circulation of a document full of false statements could be only one of slander against an instrumentality of goverment, the highest judicial tribunal in the state, in carrying out a well-fixed purpose, conceived at the inception of the matter out of which it grew, that this court should be intimidated by the use of money, big money, to the end that its members would not be free to apply the law, as it is, to the rights of litigants who may be driven here for their protection, which intimidation, if permitted, *Page 32 is a destruction of the constitutonal Supreme Court of Oklahoma, without whose protection no citizen would remain in the state longer than he could remove therefrom. To consider any product at the hands of, coming through, or produced by, a firm which is a party to such a nefarious purpose, in the first instance for hire, and in the second instance gratuitously, is to acquiesce in the right to do so, and as long as the writer is a member of this court — long or short — such products will be thrown in the waste basket when they reach his desk, and treated just as the writer would refuse to listen to any lawyer present a cause in this court who had repeatedly circulated a knowing slander and libel on the court or any member thereof, or judge of any court in this state."
The next paragraph charged the filing by the defendant of a copy of said opinion in the office of the clerk of this court on April 7, 1928.
The paragraph charging the writing of the dissenting opinion also charged the defendant with maliciously causing it to be circulated, but for the present purpose we will consider that no more was meant at that point than that it was circulated by being printed in the regular printed reports of decisions of this court, and not complicate the allegations in the first three subdivisions, having to do with remarks from the bench, uttering the written opinion, and filing of it in the clerk's office, by considering that anything so far had been charged which occurred outside of a judicial proceeding, if what was done can properly be considered as having been done in a judicial proceeding.
The majority opinion considers those paragraphs as merely charging something done in a judicial capacity, in a judicial proceeding, and concludes that the conduct was absolutely privileged. It is true that this conduct would be held to be absolutely privileged and as within the terms of the rule as usually and often stated, asserting that a judge is exempt from suit for anything done upon the bench or in the course of a judicial proceeding of which the court has jurisdiction, an excess of jurisdiction not destroying the privilege. However, in all the writer's search he has not found a case going so far on the facts as this one, considered from the standpoint of what any reasonable man might conclude as to what, if anything, the plaintiff did in the printing and publishing of the opinion and argument, with a matter over which the court had jurisdiction. We think that the true rule is correctly stated in the language of Halsbury's Laws of England,. vol. 23, Public Authorities and Public Officers, p. 327, citing Primrose v. Waterson (1902) 4 F. (Ct. of Sess.) 783, per Lord MacDonald, at page 793, that rule being stated by Halsbury as follows:
"Probably the correct rule is that words are protected unless so clearly irrelevant that no man of ordinary intelligence and judgment could honestly dispute that they had no connection with the case in hand."
Certainly the remarks had nothing to do with the issues in the case of Oklahoma City v. Baldwin, and no reasonable man could think that he could as a judge refuse to consider the merits of a case just because of the matter of whom the party employed to print his brief. The accuracy of the brief was not drawn into question by the opposing party, but the judge sought to make it appear rather as the brief of the printer than the brief of the party for whom it was printed. Since the writer cannot conclude that any reasonable men could think that a dissent or refusal to participate in a case could be thought to be made to turn upon the fact that the printer had once printed publications which the judge thought were not fair and accurate reports, we view this case in no different light than one in which in a controversy between A and B, with which C is not concerned, and with which he was in no way connected, the court should refuse to adjudicate the rights of A and B, taking advantage of his refusal to indulge in slanderous matters as to C, following that up by reducing the slander to writing and converting it into libel. If this was not actionable, it certainly went to the very verge of privilege. But it is unnecessary to determine whether absolute privilege will go to such extreme length, for such publications were only the beginning of many publications charged against the defendant, all of the others having clearly been outside of court and outside of any judicial proceeding, which leads the writer to consider what the plaintiff alleged in what the majority terms paragraphs 4 and 5, which the plaintiff designated as subdivisions "(d)" and "(e)". These allegations are what the majority opinion termed mere conclusions. They are as follows:
"(d) Has been and is, as plaintiff is informed and believes and upon such information and belief alleges, continuously since said last mentioned date and at frequent intervals going over the state of Oklahoma, and particularly throughout Creek, Lincoln, Muskogee. McIntosh, Okfuskee and Okmulgee *Page 33 counties in said state, and in public political speeches, and before large numbers of people, calling attention to and reiterating the matters mentioned in the three preceding subdivisions hereof, and using vile, obscene, opprobrious epithets of and concerning the plaintiff (same being too obscene to set forth in a pleading) in reference to and on account of the fact that this plaintiff had printed and published the aforesaid opinion and argument; he, the said Branson, boasting that he had by the aforementioned means ruined this plaintiff's business and would continue so to do so long as he remained on said court either in his present term or any other term hereafter.
"(e) Has been and is, as plaintiff is informed and believes and therefore alleges, in concert with Harlow Publishing Company, a competitor of this plaintiff, likewise engaged in the business of brief printing, falsely uttering, publishing and causing to be widely circulated, of and concerning this plaintiff and his business, the aforesaid false, malicious, defamatory and unprivileged statement falsely imputing and charging this plaintiff with the commission of crime and causing the same to be printed and published in pamphlet form under the false, malicious, defamatory and unprivileged caption and cover as follows: 'Dissenting Opinion of Chief Justice Fred P. Branson in Case of Oklahoma City v. Baldwin. Copy of dissenting opinion filed in the above case by Chief Justice Fred P. Branson, announcing the important rule that brief printers, appearing before the Supreme Court for purposes connected with the printing, filing and serving of briefs, are instrumentalities of the Supreme Court and agencies of attorneys and litigants employing them, and as such are engaged in the performance of functions properly belonging to lawyers as sworn officers of the Supreme Court, and, where such brief printers are guilty of conduct unbecoming such relation, the Supreme Court may refuse to consider briefs filed by them in pending cases,' which pamphlet, so captioned and containing such statement, was by them caused to be widely and generally distributed and circulated throughout the state of Oklahoma."
The plaintiff then alleged that all of the conduct charged against the defendant had been done to disparage the plaintiff's business and as threats to his patrons and would-be patrons, causing them to hazard their rights involved in litigation should they patronize plaintiff, and denying them the right to have their cases properly considered on the merits if they had patronized the plaintiff, all for the purpose of destroying and ruining the plaintiff's business.
The majority opinion concedes that outside of the proceeding the defendant stood upon different ground with reference to defamatory utterances, and it cannot be successfully contended that he could assert outside of court the defamatory utterances contained in the so-called dissenting opinion, nor could he even make a fair and true report of his dissenting opinion, if moved by malice, for even the doing of that is the exercise of only a prima facie, qualified, or conditional privilege at most, and is destroyed by actual malice, and so far as concerns reasserting as fact what he had asserted in the opinion, such publications would not be even qualifiedly privileged.
It is unnecessary to go further into these phases, for the majority opinion finally turned in the last analysis upon its conclusions that what was alleged in paragraphs "(d)" and "(e)" were not facts, but mere conclusions.
The opinion premised that by stating that it was deciding upon an incomplete record, but the record was certainly complete enough to enable the court, and to require this court, to decide upon the merits on the plaintiff's assignment that the court erred in sustaining the demurrer to his petition. The court announced to the parties that since the record had been lost, it would consider that the petition as printed in the plaintiff's brief was a true copy of the original unless the defendant complained, and the defendant did not complain. Both parties admitted that the demurrer was a general demurrer, by which the majority correctly concluded that the ground was that the petition did not state facts sufficient to constitute a cause of action. So, the majority considers that the record is incomplete in that it does not indicate upon what ground the defendant contended that there was a failure to state facts sufficient to constitute a cause of action, or upon what ground the court held that there was such a failure, if the demurrer or order sustaining the demurrer set forth any such specific grounds. As to that, a statement of grounds was unnecessary, and, more than that, is unusual, and whatever grounds there may have been certainly are known to the defendant, and all that he urged in his briefs was that what he did was absolutely privileged, and in the briefs he wholly failed to give attention to the allegations of paragraphs "(d)" and "(e)."
Nor do we have to deal especially with presumptions. The plaintiff has assigned error *Page 34 in sustaining a general demurrer to a certain petition, this court knowing what were the allegations of the petition, and that the demurrer was general, and since the order was against the plaintiff, he had to assign error, and the burden is upon him to convince this court that the trial court erred. If this court is not convinced that his petition alleged facts sufficient to constitute a cause of action, he will lose; but if this court is convinced that the petition did state facts sufficient to constitute a cause of action, he should win. What the majority say about the fact that three judges collaborated in sustaining the demurrer is nothing but a counsel of caution, and it cannot prevail against a conclusion that the petition did state facts sufficient to constitute a cause, of action.
In following its own counsel of caution, the court finally concluded that the petition in paragraphs "(d)" and "(e)" stated mere conclusions, and was, therefore, subject to demurrer.
In support of its conclusion the court relied upon Green v. Victor Talking Machine Co., 24 F.2d 378, 59 A. L. R. 1091, which was decided upon the broad ground that the tort, if any, was committed against the corporation and not against the stockholder who sued. The majority opinion quoted as follows:
"The complaint sets forth (among other allegations) * * * that defendant sought to cause, employees of Pearsall Company to leave it, gave its competitors confidential information concerning its business and finances, damaged its credit and by secret and unfair means interfered with its business. * * * The allegations of disclosure of confidential information, damage to credit, and unfair interference with business are mere conclusions;"
Immediately following this last semicolon, the court, in the same sentence, said:
"but, even if they were treated as adequately pleaded, they would be subject to the same objection that they charge a breach of duty owing to the corporation rather than to the shareholders,"
— a matter to which the court had referred in an earlier part of the opinion. The court's opinion as to conclusions was nothing but dictum; its conclusion was not based upon careful consideration or supported by cited authority. Before giving its authority in the decision in this case, one should check its conclusions carefully and investigate much further as to this matter of what are conclusions and what are considered as allegations of ultimate fact, for ultimate fact is what one should allege, and not evidentiary fact, the means whereby he seeks to prove the ultimate facts.
The investigations of the writer have convinced him that what courts have in mind in determining whether an allegation is one of ultimate fact or a conclusion of law, is a mental predominating impression based upon the ordinary and usual use of the expressions before it. Wherever the law requires certain types of facts to exist to constitute a cause of action, a mere conclusion which would be justified only by the existence of such facts necessarily makes the element of question of law predominate. For instance, certain elements are necessary to constitute the tort deceit, often termed "fraud," and unless the elements are charged as facts, the allegations cannot be sufficient, so that charging that a defendant made a representation or a false representation fraudulently does not sufficiently in fact charge the tort deceit.
On the other hand, it is no objection to an allegation that the evidentiary facts offered may be such that the existence of one or more of them turns upon a question of law. Status is matter of fact, and an allegation that one is the wife of another, or one is the husband of another, or that two persons are partners, is regarded as an allegation of fact, and yet, oftentimes when issue is made upon, it and the evidence is all in, we find that the status of wife or husband may turn upon the fact of divorce, and that may present a situation where the fact turns upon a question of law involved in deciding as to the validity of divorce proceedings, as oftentimes on the issue of partnership the facts necessitate a decision upon a question of law before final conclusion as to the ultimate fact can be made.
Whether in a certain case the allegations present to the judge's mind an indication of a question of law sufficiently predominant to cause him to view the assertion as a conclusion of law is often a question upon which judges may reasonably differ, and as a matter of fact the holdings depend much upon precedent.
"It may not be possible to formulate a definition that will always describe what is a mere conclusion of law, so as to distinguish it from a pleadable ultimate fact, or that will define how great an infusion of conclusions of law will be held to enter into the composition of a pleadable fact. Precedent and analogy are the only guides. * * * And in holding one class of inferences as facts to be pleaded, and another as conclusions *Page 35 of law to be avoided, courts may have been often governed more by precedent than by a substantial difference in principle. But it has been quite generally held that the question of negligence in a particular case is one of mingled law and fact; that when we speak of the act as 'negligent' or 'careless', according to the common use of language, we state, not simply a conclusion of law, but likewise state an ultimate fact inferable from certain other facts not stated." Clark v. Chicago, M. St. P. Ry. Co., 28 Minn. 69, 9 N.W. 75.
"It is not always an easy matter to determine whether a particular statement in a pleading is a statement of facts which ought to be pleaded or a conclusion of law which should be avoided. So far as we know, no one has attempted to formulate a rule which will enable one in all cases to determine whether a statement belongs to one class or the other. The books abound with cases where it became necessary to determine whether a particular statement was a statement of ultimate fact or an inference of law. But these cases, while useful as mere precedents, are of little value as authorities, except where the same statement occurs under like circumstances." Foss v. People's Gas Light, etc., Co., 241 Ill. 238, 89 N.W. 351.
While we may well expect judges to differ in border-line situations, an allegation may be so far from the line that there can be no reasonable ground for difference in opinion if the allegations are considered in the light of the question whether or not a knowledge of the law is fairly supposed to be required in the determination of fact in the particular case, which depends upon the usual impression from the use of the words.
We may also admit that in the allegation of what may be considered matter of fact rather than a conclusion of law, the allegation may be of a character such that it presents to the mind rather opinion or conjecture, but whether such allegations would render a petition subject to demurrer or merely to a motion to make more definite and certain need not be considered, for a consideration of what the plaintiff alleged no more presents such a situation than it does one of allegation of conclusions of law.
The writer can find nothing but allegations which are allegations of ultimate fact, and an examination of them seems to clearly indicate that with no reasonable room for doubt. He has searched in vain for allegations which could properly be termed conclusions of law, and in vain for what might be classed as mere opinion or conjecture from facts in the pleader's mind and not disclosed, and can find neither.
He alleged that continuously (fact) from time to time (fact) going over the state, and especially in certain named counties (fact, although the fact might turn upon a necessity of reference to the provisions of law establishing the boundaries of the state and of those counties), in public political speeches before large numbers of people (fact), he called attention to and reiterated (fact) the matters mentioned in the three preceding subdivisions hereof (fact, and not at all indefinite by omitting to include the word "all" to make it read "all the matters").
He also alleged in paragraph "(e)" other publications made in concert with the Harlow Publishing Company, and in considering those publications we may ignore the question of whether the conduct of Harlow Publishing Company was done with a view to damage the plaintiff's business, for it is alleged clearly that the defendant, the one sued, had such intent. Here again we find nothing but allegations of fact, and no conclusions of law, or mere conjecture or opinion originating in facts in the pleader's mind and undisclosed. To act in concert is to act by agreement. That is the proper sense of a word of common and ordinary use. Further, the allegation that this pamphlet, consisting of the dissenting opinion and the commenting caption, was widely circulated and circulated throughout the state, charges publication, for charging distribution and circulation of printed matter implies delivery to persons and not to some other form of animate life, and not to scattering the printed matter through the streets and on the highways and byways, without regard to delivery to persons.
The word "reiterate" in subdivision "(d)" charges fact, and in normal sense means that what he had before asserted or said he again asserted and said, and it means that what he had asserted as fact he again asserted as fact, which would make the publications outside of the proceeding defamatory publications privileged in no sense whatever. On the other hand, if we should concede that the word might be properly interpreted to mean merely that he repeated what he had before uttered, not by way of new assertion of fact, but merely by way of report, at most this making of a fair and accurate report is only prima facie, qualifiedly, or conditionally privileged, and the mere reading or repeating it before others, if moved by actual malice, would destroy the privilege, *Page 36 for the plain reason that the report was not moved by public interest alone. Whatever might be argued as to the indulgence in profanity and obscenity in a frenzied interest in the public weal, it cannot be denied that the plain declaration of intention and purpose of damaging the business of the plaintiff and an intention to continue to do so, sufficiently charges actual malice to negative conditional privilege to even make a fair and true report.
Manifestly the petition goes beyond merely stating a cause of action for defamation. It charges damage to the business of the plaintiff by wrongful means, defamation and threats. Had no wrongful means been charged, the connection of the Harlow Publishing Company might be material, but we do not have to decide whether a conspiracy to damage the plaintiff's business, rather than the act of one alone, would be necessary if the means used were lawful and not unlawful. The petition charges damages by unlawful means, and it certainly states a cause of action against the defendant.
Even considering the allegations of paragraph "(d)" in using the, word "reiterate" as charging no more than the making of a report of the dissenting opinion, and assuming that it was fair without also reporting the majority opinion to show how little this dissenting opinion had to do with what was before the court, the very sort of conduct, incomplete report, which the defendant took as an occasion to so violently defame the plaintiff, and conceding that the making of a fair report is one sort of privilege as to which malice is not presumed, being a sort of privilege recited in section 497, C. O. S. 1921, which distinguishes it from other sorts of conditional privilege in that as to those not expressly listed in that section malice is presumed, since the plaintiff sufficiently alleged actual malice, such requirement was amply met by his allegations, for he not only alleged malice in an ultimate manner, by using the word "maliciously," but charged facts which if true are, as a matter of law, sufficient to constitute actual malice.
It seems to the writer that the majority, having been of the same opinion of the writer as to the difference in situation of the defendant as to what he did outside of the proceeding, which he understands to be so from the admission in the majority opinion, the majority themselves jumped to a conclusion in deeming that the allegations in the petition were mere conclusions rather than sufficient allegations of ultimate fact.
For the foregoing reasons, I most respectfully dissent. I am authorized to state that Mr. Justices OSBORN and BUSBY concur in the views expressed herein.