holding that a magazine article titled “the pill that can kill sports” was clearly defamatory on its face toward University of Oklahoma football players when it explained that amphetamines could be administered with a nasal spray and that “physicians observed Oklahoma players being sprayed in the nostrils with an atomizer” because the average lay reader would believe the football team illegally used amphetamines
How later courts described this case
- holding that a magazine article titled “the pill that can kill sports” was clearly defamatory on its face toward University of Oklahoma football players when it explained that amphetamines could be administered with a nasal spray and that “physicians observed Oklahoma players being sprayed in the nostrils with an atomizer” because the average lay reader would believe the football team illegally used amphetamines
- holding that a single member of a large university football team could maintain a lawsuit for libel for general statements about the team since he was “well known and identified in connection with the group” and because he “ha[d] sufficiently established his identity as one of those libeled by the publication”
- discussing common law conditional privilege doctrine
- claim based on statement referring to entire Oklahoma football team sufficient
Written by the judges who cited it.
The opinion
HALLEY, Justice
(dissenting).
It is impossible for me to agree with the majority opinion.
Nowhere in the alleged libelous article did it say that the use of amphetamine by the individual player was a crime. Neither did the paragraph in the article where the University of Oklahoma was referred to did it say that amphetamine was given to the players. Here is that paragraph:
“Speaking of football teams, during the 1956 season, while Oklahoma was increasing its sensational victory streak, several physicians observed Oklahoma players being sprayed in the nostrils with an atomizer. And during a televised game, a close-up showed Oklahoma spray jobs to the nation. ‘Ten years ago,’ Dr. Howe observed acidly, ‘when that was done to a horse, the case went to court. Medically, there is no reason for such treatment. If players need therapy, they shouldn’t be on the field.’ ”
There is nothing in the article that is libelous per se as to Dennit Morris. Nowhere does it say that he partook of the amphetamine nor does it say that he would have been violating the law if he had.
In Section 1441 of 12 O.S.1961, libel is defined as follows:
“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, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.”
To me it is unthinkable that the article in question would expose Dennit Morris to public hatred, contempt, ridicule or obloquy or injure him in any way. He was trained by a highly respected coaching staff. His own evidence showed that he was a professional football player after leaving school and that he received employment with one of the major oil companies of this country.
For this judgment to stand up the article must be libelous “per se” which means by itself, simply as such in its own nature or without reference to its relations, and in connection with libel and slander is applicable to words which are actionable because they of themselves, without anything more, are opprobrious. Tulsa Tribune Co. v. Kight, 174 Okl. 359 , 50 P.2d 350 (1935); Marland Refining Co. v. Harrel, 167 Okl. 548 , 31 P.2d 121 (1934); Wimmer v. Oklahoma Pub. Co., 151 Okl. 123 , 1 P.2d 671 (1931); Fite v. Oklahoma Pub. Co., 146 Okl. 150 , 293 P. 1073 (1931); Hargrove v. Oklahoma Press Pub. Co., 130 Okl. 76 , 265 P. 635 (1928).
In Libel and Slander, 53 C.J.S. § 8, we find this statement:
“In general, defamatory words may be divided into those that are actionable per se, which on their face and without the aid of extrinsic proof are recognized as injurious, and those that are actionable per quod, as to which the injurious character appears only in consequence of extrinsic facts.”
To me the most that can be made of this article as to Dennit Morris is that it is “libel per quod” and failure of trial court to require plaintiff to plead and prove special damage constituted reversible error. Oklahoma Publishing Co. v. Gray, 138 Okl. 71 , 280 P. 419 . See also 53 C.J.S. Libel and Slander, §§ 162, 170 and 262.
I dissent.