This action was commenced in the district court of Atoka county on December 27, 1927, by J.W. Clark against O.O. Owens and World Publishing Company. The parties will be referred to here as plaintiff and defendants as in the lower court.
The petition consisted of four causes of action, based upon the publication of an article in the Tulsa World on October 24, 1926, October 31, 1926, November 1, 1926, and November 2, 1926. Each publication constituted a separate cause of action.
Each cause of action charged a false, malicious, unprivileged, defamatory publication, which falsely imputed and charged this plaintiff with the commission of crime and with malfeasance and willful misconduct in his office as Justice of the Supreme Court, and which false, malicious, unprivileged, defamatory communication did expose this plaintiff to public hatred, contempt, ridicule, obloquy, and which tended to deprive him of public confidence and to injuriously affect him in his occupation and profession as an attorney, and in his office as a member of the Supreme Court.
The defendants answered by way of general denial and specific denials and by way of justification and privileged communication. Defendants further pleaded the statutes of limitation. The plaintiff replied by way of general denial and specially pleaded that Mr. Justice Hunt nor any other person was authorized to act for the plaintiff.
The cause was tried to a jury and judgment rendered for the plaintiff and appeal prosecuted to this court.
All members of the Supreme Court of the state of Oklahoma having filed their disqualifications to sit in this cause, the Governor of the state of Oklahoma, Honorable William H. Murray, appointed J.B. Moore, Special Chief Justice, John F. Thomas, Sr., L.V. Orton, Wm. L. Cheatham, W.N. Redwine, Claude Hendon, Joseph H. Ford, J.E. Falkenberg, and A.S. Dickson, to serve as Special Justices of the Supreme Court to hear this cause.
The article complained of is in words and figures as follows, to wit:
"So that the people may know why I am a candidate for state representative.
"I have never had any political ambition. I have none now. I seek election to the Legislature for the purpose of rendering such service as constructive thought and fearless and aggressive action will permit, including particularly initiating and pressing
"A Thorough and Searching Investigation of The Conduct and Practices of the Supreme Court.
"Courts, as a whole, and particularly the highest court in the state, should be respected, and referred to with respect. But when an undercurrent of gossip and rumor becomes so widespread among the lawyers that the Supreme Court no longer has the confidence and respect of the bar (as lawyers of this state are collectively referred to) the whole people should be informed, so as to avoid the pitfalls of misplaced confidence and trust.
"The public is now well informed on the Supreme Court's attitude with respect to matters political, but only the lawyers, and those laymen who have been unfortunate enough to learn by bitter experience with the Supreme Court, can know the attitude of certain of its members on matters commercial and financial.
"The Supreme Court has recently been bitterly assailed by practically every newspaper in the state and charged with attempting to legalize alleged fraud. If the Supreme Court will condone alleged corruption in political matters, what will it do, and what has it done, in financial and commercial cotroversies?
"The Supreme Court has been charged, because of its action in the Dabney-Searcy political controversy (121 Okla. 193,249 P. 381.) with depriving the citizens of their constitutional rights. Certain members of the Supreme Court have also been charged with lending its power, and making of it, the lower courts, and the legal machinery of the state, a tool for use in private controversies, in depriving or attempting to deprive citizens of their property, and in looting or attempting to loot business enterprises. Such procedure denies the injured individuals other constitutional rights than that of suffrage. It denies the citizens the right to own property.
"The Supreme Court, through the actions of certain of its members, has arrogated to itself all the power of all branches of the state government, legislative, executive, and judicial. Certain members of the court have made their will and desire the law. They have thereby made the Supreme Court a menace to government, society and the people's sacred rights and welfare. *Page 110
"The vacillating attitude recently displayed by the Supreme Court in political controversies is nothing less than a sacrifice of principle and conviction for expediency. The Dabney-Searcy opinion is but a leering insult to the intelligence of the people of the state:
Second Column:
"A Perfect Demonstration that Politics, Intrigue and Influence Center into the Consideration by the Supreme Court of Controversies Coming before it.
"Justice Mason, as a result of a decision of the Supreme Court, obtained his position on that court under a cloud of suspicion such as now overshadows Dabney. With Justice Mason occupying such an unenviable position, why, then was the Dabney-Searcy Case assigned to him to write the court's opinion? Is there anyone so credulous as to believe he would have written any opinion other than the one he did? And he cited the court's opinion in his own case as a precedent for his handiwork for Dabney! What else could be expected?
"The Dabney-Searcy opinion is admitted to be an attempted outrage of the people's rights. How many equally outrageous opinions have been written by the Supreme Court in private controversies? Only the lawyers and the extremely experienced laymen know. The whole people should be informed.
"Since statehood every other branch of the state government has been either suspected, criticized or investigated or impeached. In the past, the Supreme Court has only been suspected; recently it has been criticized. It should now be investigated. The Legislature is the only body empowered to make such investigation and apply the proper remedy.
"Lack of information on the part of the layman, as well as lack of knowledge of the correct way to proceed, has prevented any aggressive steps being taken. Fear and professional selfishness on the part of the lawyers have restrained them in any attempt to correct the known and suspected evils existing in the Supreme Court.
"It is for the purpose of exposing such conditions, and applying the proper remedy, that I seek election to the Legislature. It is for the purpose of eliminating, if possible, the contempt for law, facts, evidence, precedent, equity, and justice heretofore exhibited by certain members of the Supreme Court, that I am a candidate for election as a state representative."
(Across bottom of page) "I do not want the job for the money.
"O.O. Owens. "This space paid for by O.O. Owens, — NOT by his friends."
There are many assignments of error. We shall consider those most pertinent and that dispose of this appeal. The first is that the venue statutes of the state of Oklahoma that permit a domestic corporation to be sued in any county in the state where any part of the alleged cause of action arose, when taken in connection with the venue statutes as to individuals and foreign corporations, is a denial of the equal protection of the laws and in contravention of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
The second question raised is the statutes of limitation.
The third is whether the publication is actionable per se or per quod, and if not actionable per se, does the petition allege a cause of action and does the proof authorize a recovery?
No. 1. Corporations are creatures of the state. They owe their existence to the grace of the state. The state may well prescribe rules and regulations for their conduct and their amenability to the courts of the state. They are not natural persons and are not entitled to the inalienable rights of free men. The business done by a corporation and its mode of procedure in business transactions may well be taken into account when the state permits a corporation to be formed, or to transact business within its boundaries and the state may well classify such unnatural persons as to the venue laws of the state and the form in whlch they may sue and be sued.
As by Mr. Justice Holmes stated, in the case of Vain Peanut Company v. Pinson, 282 U.S. 499, it is "not a geometrical equation between a corporation and a man, but whether the difference does injustice to the class generally, even though it bear hard in some particular case."
The state's discretion in fixing its venue laws is and should be large.
When a corporation is organized under the laws of a state, it is deemed to submit itself to all of the reasonable rules and regulations prescribed by the statutes of the state, its creator, and under which it was brought into existence. Being a creature of the state and enjoying the right to exist by the grace of the state, it cannot fundamentally claim the rights, benefits, and immunities of a natural person and must, therefore, submit itself to all of the reasonable rules and regulations imposed by its creator, and enjoying the unnatural right to exist, there can be no injustice to the class generally in permitting it to be sued and proceeded against in the courts of this state in jurisdictions *Page 111 other than its domicile, while a more restricted rule is applied to natural persons.
It is, therefore, our opinion that the trial court was right in holding that the district court of Atoka county had jurisdiction in this action over the defendants.
Nos. 2 and 3. The defendants raised the question and pleaded the statute of limitations on every possible occasion. They relied upon the fourth paragraph of section 185 of the Statutes of Oklahoma, 1921. In order to toll the right to bring this action in Atoka county more than one year after the cause of action accrued, the plaintiff pleaded the saving provision of section 190, Comp. Stats. 1921.
The statutes applicable to this issue read as follows:
Section 231, Comp. Stats. 1921: "A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon."
Section 187, Comp. Stats. 1921: "An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him. * * * An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly, and diligently endeavors to procure a service. * * *"
Section 190, Comp. Stats. 1921: "If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action, otherwise than upon its merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."
The plaintiff, in his petition, in order to toll the statutes, made the following allegation:
"That this plaintiff did on the 12th day of September, 1927, file suit against the defendants, and each of them, on the same and identical cause of action in the district court of Oklahoma county, which action failed otherwise than on its merits by reason of a dismissal without prejudice having been entered on the 24th day of December, 1927."
Applying the liberal rule and doctrine of pleading, we hold that this allegation was sufficient to entitle the plaintiff to prove facts sufficient to show the proper commencement of the action in Oklahoma county, but we further hold that the plaintiff wholly failed by any competent testimony to prove any fact or circumstance that would sustain the allegation of the petition and that, therefore, the demurrer of the defendants at the close of the testimony of the plaintiff should have been sustained.
The testimony in support of this allegation is, at most, a mere conclusion. It is as follows:
"Q. Did you prepare and cause to be filed in the Oklahoma county district court, a suit on behalf of Judge Clark against O.O. Owens and the World Publishing Company? A. Yes, sir. Q. Have you a copy of the petition as filed in the district court of Oklahoma county in your possession? A. I hold in my hand a typewritten duplicate copy, or carbon copy of the petition as it was prepared and filed in the district court of Oklahoma county and was filed prior to the 24th day of October, 1927. Q. Was that suit caused to be dismissed, through you, by the plaintiff without prejudice? A. Yes, sir; on the 24th day of December, 1927, the cause came up and I dismissed that case in the district court of Oklahoma county without prejudice."
An action is commenced in this state by the filing of a proper petition in a court having jurisdiction and causing summons to be issued thereon. The filing of the petition is not sufficient. There must be something else, that is, a summons issued thereon and served or a bona fide attempt to serve the same. Section 231, Comp. Stats. 1921, taken in connection with section 187, an action is deemed to be commenced as to each defendant on the date of the summons which is served on the defendant or attempted to be served. So that if the petition was filed in Oklahoma county and Oklahoma county was a proper county in which to file said action, there is yet a total failure to show, first, that a summons was issued; second, that the summons was served on the defendants, or attempted to be served. We cannot presume that this was done. The testimony fails to disclose that this was done. There being a total want and failure of testimony to prove the essential elements of the commencement of an action in Oklahoma county, the plaintiff must be held to have failed to show facts sufficient to toll the statute and to warrant a holding that the commencement of the action in Atoka county after the expiration of one year from the publication of said articles was within the saving clause of the statute, Montgomery v. Hogan, 76 Okla. 243,185 P. 81; Blakeney v. Francis, 105 Okla. 11, 231 P. 464.
The burden of proof was upon the plaintiff to properly allege and prove facts sufficient to toll the statute under section 190, Comp. Stats. 1921. *Page 112
In the case of Shaw v. Dickinson, 65 Okla. 186, 164 P. 1150, this court said:
"It seems clear that in this case the petition of the plaintiff shows on its face that his cause of action was barred by our statutes of limitation, and defendant having pleaded such bar it was incumbent on plaintiff to plead and prove facts sufficient to take his cause of action out of the bar of the statute."
This same doctrine was followed and announced in the case of Torrey v. Campbell, 73 Okla. 201, 175 P. 524, in which we find this language:
"We therefore deduce the rule to be in this state that when a plaintiff states a cause of action, which is shown by the petition or bill of particulars to be barred by the statute of limitation applicable to such a cause of action and the defendant interposes a plea of the statutes of limitation, the burden is on the plaintiff to plead and prove facts relieving such action from the bar of the statutes of limitation." Bayers v. Gamblin, 130 Okla. 82, 265 P. 650.
We, therefore, conclude and hold that applying the liberal rule as to pleading, yet the plaintiff wholly failed in his testimony to show that this action was commenced in Oklahoma county, it being necessary, in addition to the filing of the petition, to affirmatively show that the summons was issued and served upon the defendants, or some excuse given and shown why the summons could not be served upon the defendants, and the plaintiff having failed to make such proof, the demurrer to the plaintiff's testimony should have been sustained and the jury instructed to render a verdict in favor of the defendants.
No. 4. The defendants raised the further question that the article upon which this suit is founded is not libelous per se.
The statute defines libel as follows (Comp. Stats. 1921, section 495):
"Libel is a false or malicious unprivileged publication by writing, printing, picture or effigy, or other fixed representation to the eye which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation."
The statute defines slander as follows (Comp. Stats. 1921, section 496):
"Slander is a false and unprivileged publication other than libel, which:
"First, Charges any person with crime or with having been indicted, convicted or punished for crime.
"Second. * * *
"Third. Tends directly to injure him in respect to his office, profession, trade or business either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profits.
"Fourth. * * *
"Fifth. Which, by natural consequences, causes actual damage."
The lower court in its instructions failed to say whether the article was libelous per se or not. The instructions as a whole seemed to indicate that the court did consider the article libelous per se, inasmuch as the cause was submitted to the jury on the question of general damages.
Whether an article is libelous per se or not is a question of law for the court. McKenney v. Carpenter, 42 Okla. 410,141 P. 779; Findley v. Wilson, 115 Okla. 280, 242 P. 565.
Section 5 of the plaintiff's petition, the charging part of the petition is as follows, to wit:
"5. That the defendants, O.O. Owens, World Publishing Company, and Eugene Lorton did, on the 24th day of October, 1926, print and publish, in the edition of the said Tulsa Daily World of that date, of and concerning this plaintiff, a false, malicious, unprivileged defamatory communication which falsely imputed and charged this plaintiff with the commission of crime and with malfeasance and willful misconduct in his office as justice of the Supreme Court, and which false, malicious, unprivileged, defamatory communication did expose this plaintiff to public hatred, contempt, ridicule, obloquy and which tended to deprive him of public confidence and to injuriously affect him in his occupation and profession as an attorney, and in his office as a member of the Supreme Court."
The court in his instruction defined libel and the issues presented to the jury in the following language, to wit:
"No. 9. You are instructed that under the statutes of this state, libel is a false or malicious, unprivileged publication by writing, printing, pictures, or effigy or other fixed representation to the eye which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation."
The charging part of the petition says that the article complained of "falsely imputed and charged this plaintiff with the commission of crime and with malfeasance and with willful misconduct in his office as Justice of the Supreme Court."
We think the court was correct in thus *Page 113 limiting the issues to the jury to the sole question of libel as defined in section 495, supra.
The article, to our minds, did not charge the plaintiff with the commission of a crime or with malfeasance or willful misconduct in office.
For the article to be libelous per se the language used therein must on its face show that the derogatory statements, taken as a whole, refer to the plaintiff and not to some other person.
Taking this article as a whole, without the aid of extrinsic facts, we are unable to say that it refers to the plaintiffs. It did mention Justice Mason. It did refer to certain members of the Supreme Court. From the four corners of the article and without the aid of extrinsic facts, we cannot see how it is possible that any person reading the article could apply the same to the plaintiff in this cause. The article was not published about the Supreme Court, but about certain members of the Supreme Court, specifically naming Justice Mason.
In the case of Hargrove v. Oklahoma Press Publication Co.,130 Okla. 76, 265 P. 635, the article there complained of was concerning one William Hargrove. The article was headed "Negro Can Leave Jail If He Keeps on Going." The article then states that Hargrove's wife appeared at the office of the United States Marshal and paid his fine. William Hargrove and his wife were white persons and the wife brought suit alleging that the article falsely imputed and charged that the plaintiff was the wife of a negro. The court in that case said that the article did not purport to be about the plaintiff. The language used is as follows:
"We cannot see in the article anything reflecting upon the plaintiff and she cannot import into it, by her mere sayso, a meaning different from the plain, unambiguous intent of the words. The article on its face contained no libel on her. If it related to her, it was only by reason of extrinsic facts and circumstances."
She was as much a member of the Hargrove family as the plaintiff was a member of the Supreme Court.
We do not believe that any person, without the aid of extrinsic facts, by reading the article referred to would or could come to the conclusion that it referred to the plaintiff.
We are not unmindful of the rule that one who publishes matter about a board or jury or family in its collective capacity assumes the risk of its being libelous.
No special damages were alleged and none were attempted to be proved. The court submitted the issues to the jury upon the question of damages generally; the language was compensatory.
In the case of M., K. T. Ry. Co. v. Watkins, 77 Okla. 270,188 P. 99, it was said:
"In an action for libel, special damages must be alleged and proved, and it is error to instruct the jury on such damages in the absence of such allegation and proof."
The article not being libelous per se, and no special damages alleged and none proved, the demurrer to the plaintiff's testimony should have been sustained.
In the case of Hargrove v. Oklahoma Press Publishing Co., supra, the court said:
"No special damages are alleged. Therefore, if said publication is not libelous per se, the action of the trial court in sustaining the demurrer to the plaintiff's petition was proper." Following Matthews v. Oklahoma Publishing Co.,103 Okla. 40, 219 P. 947; Kee v. Armstrong, Byrd Co.,75 Okla. 84, 182 P. 494.
In the case of Fite v. Oklahoma Publishing Co.,146 Okla. 150, 293 P. 1073, this question was before the court. The court said:
"There is no fixed rule, by which the court can determine whether or not a statement is libelous per se, and the statement alleged to be defamatory must be examined before it can be determined whether or not it is libelous per se."
The court says that the distinction between libel per se and libel per quod has long been recognized by this court.
From our reading of the Hargrove Case and the Fite Case, they each proceeded upon the theory that the article complained of was not libelous per se.
We hold that in this case the article was not libelous per se, and had it been libelous per quod, no cause of action was proved by reason of the failure to allege and prove special damage.
While the article complained of was bitter and a severe criticism upon the official acts of the Supreme Court and of certain of its members, yet under the law of privileged communications and the right of citizens to criticize the official acts of their servants, we believe it would be restricting the rule of privileged communications too far to say that the article was libelous upon the Supreme Court as a whole, and plaintiff not being specifically referred to therein, and we being unable from reading the entire article *Page 114 to single out plaintiff as the object of the publication, we must conclude that the same is not libelous per se, and that the demurrer to plaintiff's testimony should have been sustained.
For the reasons herein assigned, the judgment in this cause is reversed and held for naught and this cause remanded to the district court of Atoka county, with instructions to dismiss the petition of the plaintiff.
THOMAS, ORTON, REDWINE, and FORD, JJ., concur. MOORE, C. J., and HENDON, FALKENBERG, and DICKSON, JJ., dissent.