Forman v. Mississippi Publishers Corp.

Smith, C. J.,

delivered a dissenting opinion.

The judgment of the court below should be reversed and the case remanded.

At common law an action for libel would lie in any county in which the libel was published.

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Under section 495, Code of 1930, as amended by Laws 1940, c. 248, the venue of a transitory action (in which category an action for libel falls) against a domestic corporation is in the county of the corporation’s domicile, or “the. county where the cause of action may occur or accrue” at the option of the plaintiff, and if the appellant’s cause of action against the Mississippi Publishers Corporation accrued in Sunflower County, the court below .prred in dismissing the case.

A cause of action occurs or accrues at the place where it ‘ ‘ comes into existence as an enforceable claim. ’ ’ Grenada Bank v. Petty, 174 Miss. 415 , 164 So. 316, 318 . A cause of action for libel comes into existence, and is complete when, but not until, the defamatory matter complained of is published. A libel has been published’ when, but not until, it is delivered at the instance of its author or publisher to, and read by or to, one other than the person defamed. “Every publication of a libel is a distinct and. separate act and a distinct and separate cause of action. For the defendant always has it in his 'power to restrict the number of persons to whom he will publish a libel— he may show it or hand it to as many or as few as he pleases; and each time that he chooses to publish it he commits a fresh tort.” Odgers, Libel and Slander (5 Ed.), 158.

1

The authorities agree “that every distinct publication of a libel constitutes a distinct cause of action.” But as to what constitutes a distinct publication presents a diversity of views. While there is some authority to the contrary, the majority of the courts that have considered

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this question are in accord with the foregoing views.

2

The several publications of the libel, constituting separate causes of action may be of the first or subsequent editions of a paper, pamphlet or book containing' it. I refer to this for the reason that the libel here under consideration appeared in the first edition, and afterwards, on the same day, in the second edition of the appellee’s newspaper. If the libel, as claimed by the appellant, was published in Sunflower County this action should not have been dismissed.

The interpretation of this statute involves much more that the mere question of venue, for it affects substantive rights as well, and that evil lurks in the narrow interpretation put on it by affirming associates will appear when we consider: '

1. The sales and deliveries of a paper, pamphlet or hook containing a libel may continue for a long period of time, and if a cause of action accrues therefor solely on the sale or delivery of the first copy thereof, an action for the libel would he barred by limitation, as my affirming associates say, although the sales and deliveries of the paper, pamphlet or book containing it continued until shortly before, or even after, action on the first sale or delivery is barred.

2. A newspaper, pamphlet or book printed in a foreign state or county may be first published there, and thereafter delivered to and read by persons in Mississippi, as was the case in Ned Lee v. Memphis Publishing Co., 195 Miss. 264 , 14 So. (2d) 351 , this day decided. In such a case, according to the opinion just rendered, no cause of

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action accrues for the publication of the paper, pamphlet or book in Mississippi, but only for its publication in the foreign state or country where it was printed and first published; from which it follows that whether the matter complained of was libelous at all, whether it was privileged, and the damages, if any, to be allowed therefor, would be governed, not by the law of Mississippi, where the injury to the person defamed, in fact, occurred, but by the law of such state or country. Under this interpretation of the statute a resident of Mississippi, whose reputation for all that enters into a life’s value may have been ruined by the publication of matter concerning him, first in a foreign state or country, and then in Mississippi, where it would be actionable, but which is either permitted by or privileged under, the law of the foreign country, where it was first published.

3. The person defamed cannot usually ascertain who first received and read the libel, and therefore begins an action therefor at his peril. He may, particularly when the libel appears in a pamphlet or book, know only that it was received and read by A in B county. He institutes an action therefor in B county, based on the publication to A, but at the trial is confronted with evidence, which he cannot then disprove, that the pamphlet or book containing the libel was first delivered to and read by C in D county. To permit the action to fail for that reason reduces the statute to an absurdity.

I am not here concerned with the question of damages flowing from several publications of a libel, or whether all of such damages must be recovered in the same action; for that 'question does not here arise.

One other observation in this connection is that the evidence does not disclose that this libel was published, within the meaning of the law of libel, in Hinds County, i. e., that a copy of a paper containing it was delivered to and read by or to a person there. All the evidence discloses as to a publication of this libel in Hinds County is that the paper containing it “was first read in Jack

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son.” To meet the requirement of publication the evidence should disclose that the paper was delivered to, and read by or to, a person not defamed by it, and who was not responsible for its composition and circulation.

This libel having been published in Sunflower County, this action therefor was properly brought there.

I come now to the appellee, Mrs. Eva Rowe. The evidence discloses that Mrs. Rowe distributed copies of her co-defendant’s paper containing this libel without knowing that it appeared therein. Consequently she incurred no liability therefor. Nevertheless, the action against the Mississippi Publishers Corporation should not have been dismissed for that reason. The appellant had the right, under section 495, Code of 1930, to join her as a co-defendant herein, and thereby vest the court below with jurisdiction of the case, although it should develop on the trial that she had incurred no liability for the circulation of this libel, provided she did so in good faith, and not fraudulently, for the purpose of vesting the court below with jurisdiction of the case. Trolio v. Nichols, 160 Miss. 611 , 132 So. 750 , 133 So. 207 . The evidence does disclose that the appellant joined Mrs. Rowe as a co-defendant of the Mississippi Publishers Corporation for the purpose of having the case tried in Sunflower County, as he had the right in good faith to do, but it does not appear therefrom that he knew that when she distributed the paper she did not know of the libel appearing therein. By distributing the paper Mrs. Rowe became prima facie liable for the libel therein, and the burden of disproving which was on her or her co-defendant, and the appellant was under no duty before beginning this action to inquire of her whether-she knew of the libel therein when she distributed the papers containing it.

I am requested by my Brother Roberds to say that he concurs in this opinion.

1

3 Rest. Torts, Comment (b) to Sec. 578; Newell “Slander and Libel,” 4 Ed., Sec. 198; Gatley, “Libel and Slander,” 3 Ed. 412; 33 Am. Jur., “Libel and Slander,” Secs. 227, 234; 56 C. J. 1229; Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40 , 92 So. 193 , 37 A. L. R. 908.

2

Tingley v. Times-Mirror Co., 144 Cal. 205 , 77 P. 918 ; Vicknair v. Daily States Pub. Co., 144 La. 809 , 81 So. 324 ; Id., 153 La. 677 , 96 So. 529 ; Oklahoma Pub. Co. v. Kendall, 96 Old. 194, 221 P. 762 ; State ex rel. v. Dist. Court, etc., 129 Old. 210, 264 P. 154 ;. Louisville Press Co. v. Tennelly, 105 Ky. 365 , 49 S. W. 15 ; Cincinnati Times Star Co. v. France, 61 S. W. 18 , 22 Ky. Law Rep. 1666 ; Belo & Co. v. Wren, 63 Tex. 686 .