Lead Opinion
The complaint is in nine counts, each of which, in statutory form, declares upon a separate libel published by defendant of and concerning the plaintiff, “in a newspaper published at Birmingham.”
The action is brought in the circuit court of Blount county, and venue jurisdiction of the court is challenged by eight several pleas in abatement, each of which sots up facts from which it concludes that the venue of the action is improperly laid in Blount county, and to each of which a demurrer was duly sustained.
It is not necessary to state in detail -the allegations of all of these pleas, and the grounds of demurrer thereto, but it will suffice to say that the meritorious question raised by the demurrers and their sustention by the trial court is whether the act of defendant in mailing libelous copies of its paper at Birmingham, addressed to and received by subscribers in Blount county, amounted per se to a publication or circulation by defendant of those papers in Blount county, so as to constitute an injury which occurred in that county, within the meaning of section 6112 of the Oode, which permits the venue of actions against corporations for personal injuries to be laid “in the county where the injury occurred.” It is conceded by counsel for plaintiff that the venue as here laid depends solely upon the consideration above stated, and other bases of venue need not be noticed, since all of them are excluded by the allegations of the pleas.
Defendant’s contention, of course, is that the printing, publishing,, and mailing of its papers at Birmingham, though it resulted proximately and necessarily in their circulation and exposure in other counties, including Blount, effected a complete publication of the alleged libels in Jefferson county, and that their subsequent circulation and exposure in other counties were not separate publications of the libels constituting independent and separately actionable wrongs, but were mere elements of damnum growing out of the primary wrong which occurred in Jefferson county, where both plaintiff and defendant reside, and where the venue must therefore be laid.
Or, if several copies of the original issue, as published at Birmingham, have been subsequently caused to circulate in Blount county by the act of defendant in mailing them at Birmingham, nevertheless the injury — injuria, not damnum — occurred in Jefferson county within the meaning of section 6112 of the Oode, which lays the venue “in the county where the injury occurred.”
The questions thus presented have never been considered by this court, but, on common-law principles, and under some venue statutes, the authorities in general seem to support the view that an action for libel may be brought in any jurisdiction whore the libelous matter was published or circulated.
In 25 Cyc. 433, it is said:
“In the case of libel, it is held that it is not the jurisdiction in which the article is printed, but the jurisdiction in which it is published and circulated, that determines whether the words used are actionable. So the general rule is that an action for libel may be brought and tried in any county in which the libel was published or circulated.”
And in 18 Am. & Eng. Ency. Law (2d Ed.) 119:
“An action or prosecution for a libel may, as a general rule, be brought either in the jurisdiction where the defendant resides or is found, or in any jurisdiction where the defamatory matter was published or circulated.”
Those texts are -well supported by the cases cited in the notes.
The cases supporting the view that an action for libel against a newspaper for libelous matter published by it may, under venue statutes of varying phraseology, be brought in any county where the paper is circulated, regardless of where it is printed, published, and sent out for distribution, are collected in the notes to the following cases: Graham v. Mixon (Cal.) L. R. A. 1918E, 1023, 1026, 1029; State v. Piver (Wash.) Ann. Cas. 1915A, 695, 697; State v. Huston (S. D.) 9 Ann. Cas. 381. Very full discussions of the subject will be found in Julian v. K. C. Star. Co.,
In the Julian Case, supra, under a statute permitting an action to be brought against corporations “in the county in which the cause of action occurred,” it was held by the majority of the court that a libel suit against a newspaper could be maintained in any county where the newspaper was circulated. The following from the opinion of *42 Valliant, J., is fairly representative of tile reasoning upon which that view of the question is supported:
“When therefore the defendant sent its newspaper containing the article complained of into Platte county and there gave it out to the public, if the article was libelous in character what element was lacking to constitute a cause of action then and there? Let us take the definition of ‘cause of action’ as given in the brief of defendant’s learned counsel; it is the existence of ‘every fact which is material to be proved to entitle the plaintiff to recover.’ What fact essential to the plaintiff’s right of recovery did not occur- in Platte county? But it is said that the publication first occurred in Jackson county and that the plaintiff’s right of action accrued there if at' all.- We agree with counsel for defendant that the one issue, of the newspaper, though it may have been of many thousand copies distributed in many different counties, gave but one cause of action, but to reach that conclusion we must say that there was but one publication. If we should say that the publication in Jackson county was a publication distinct from that in Platte county, then we would have to say that there were more than one publication and more than one cause of action. But there was but one publication — one utterance — and though some of the papers did not reach their destination as soon as others, yet they all emanated from the one act and all constituted but one libel, if libel at all. It is the publication of the libel, not the printing of it, that gives the right of action. When the publisher gives out his paper to be circulated not only in one but in many counties and it is circulated as he intended, he is deemed in law to have published it in all counties, and the act is no less a publication in one county than another.
“If the defendant’s newspaper was, in obedience to defendant’s purpose, given, public circulation in Platte county and if it contained a libel of the plaintiff, the plaintiff’s cause of action accrued in that county,”
The opposing view is well stated in the dissenting opinion of Graves, J., in which Lamm, J., concurred:
“It is broadly contended that under section 997 a plaintiff in this one class of cases has the right to select the forum of his trial and locate it in either of the 114 counties of the State, provided copies of the paper reach all of them. That he can leave the county of his residence, which is likewise the residence of the defendant, and where the first publication is made, and pick from the 114 counties one where the citizenship is such that, to his mind, indicates practical results in his suit. * * *
“We can give to this statute a reasonable construction and one which violates no constitutional mandates. Every letter of the statute can be enforced by saying, under the admitted facts of this case, the cause of action accrued in Jackson county, where it stands admitted that the paper containing the article alleged to be libelous was first given out to the reading public, and thereby first published. Or if the first publication be in some other county, let the action be brought there. Had we not better read into this statute words [which] would be consonant with a reasonable construction, than read into it, as first above indicated, words which make it abhorrent to reason, right justice and fairplay?
“Whilst the law broadly stated says that each publication constitutes a cause of action, yet the courts hold, as was admitted in the argument of the case and in respondent’s brief, that but one suit can be brought on the same libelous publication, no matter in how many places, or at how many times it is published, i. e., given to the reading public.
“The extent of the publication may be shown to enhance the damages, ■ and the suit thereby draws to itself all alleged causes of action, and mtikes of them all the cause of action mentioned by the statute. The courts have made this rule of law, because to permit, a great multiplicity of suits for the one libelous article would be to shock the sense of justice and right.
“Then why not, in the interest of a construction of this statute, which would comport with justice and right, say that the cause of action mentioned therein, in cases of libel, means the cause of action accruing by the first publication of the article? We believe that we should so construe this statute, and for that reason this suit should have been brought in Jackson county and not elsewhere.”
In State v. Moore, supra, under a constitutional provision requiring that all criminal trials “shall take place in the parish in which the offense was committed,” it was held, Monroe, C. J., dissenting, that the printing and pubication of a criminally libelous newspaper in New Orleans, though it was from there mailed to and circulated in other parishes, was an offense committed in New Orleans, and was not indictable and triable in any other parish. We quote from the opinion of O’Neill, J., the following extract, the reasoning of which is pertinent to the question before us:
“The learned district attorney says in his brief that a verdict of the Twenty-Fourth judicial district court in and for the parish of East Feliciana, on the bills of indictment or information in this case, would free the defendants from prosecution on the same libelous matter in any other jurisdiction or in any other court of this state. That admission is an aekowledgment of the correctness of the proposition that only one offense was committed, if the article complained of was libelous, by the publication of the article in the Times-Bicayune, no matter how many parishes or jurisdictions the paper circulated in. If what Daniel D. Moore did was a complete offense, and constituted only one offense, it was certainly committed in the city of New Orleans. If the fact that a bundle of copies of the Times-Picayune, containing the alleged libelous article, was sent to the parish of Bast Feliciana conferred jurisdiction upon the district court of that parish to try the alleged offender for what he did in the city of New Orleans, it must be upon the theory that the sending of the bundle of papers to the parish of East Feliciana constituted an offense in that parish. If that be true, the sending of *43 another bundle of the newspapers to the parish of Rapides constituted another offense in that parish, and the sending of another bundle of the newspapers to the parish of Plaquemine constituted another distinct offense there; and, on the same principle, the sending of each newspaper to each individual subscriber or purchaser was a distinct offense. It would lead to the anomalous proposition that as many distinct offenses were committed in as many different jurisdictions, by what Daniel D. Moore did in-the city of New Orleans, as there were copies of the newspaper containing the alleged libelous article; that what Daniel D. Moore did in the city of New Orleans was multiplied into as many thousands of offenses on his part as there were subscribers and purchasers and readers of that issue of the Times-Picayune. To say that a prosecution and conviction by a court having jurisdiction in any parish where one of the newspapers found its way would protect the defendant from prosecution in any other parish does not answer the constitutional requirement that he shall be tried for what he did in the parish where the offense was committed, and in no other parish.”
It is true, as pointed out by counsel for appellee, that in the later case of Yicknair v. Daily Times Pub. Co.,
In the case of Louisville Press. Co. v. Tennelly,
"It may be true that the cause of action accrued to the plaintiff in Jefferson county so soon as the Commercial was printed, and placed in the mills in Jefferson county, but that fact does not necessarily preclude the plaintiff from maintaining his action in any county in which the injury to him- was inflicted. It seems to us that the true construction and meaning of section T4 is that the plaintiff may institute his action in * * * any county where he is injured by the publication of the libel.” (Italics ours.)
It is thus apparent that the Kentucky court interpreted the word “injury” in the venue statute as synonymous with “damage” or “hurt,” as did the Louisiana court in Yicknair v. Daily Times Pub. Co., supra, and not as meaning tbe “injuria,” or legal wrong, which “caused” the damage or .hurt.
In the case of State v. Piver,
At the common law, from a very early period, it was held that a prosecution for criminal libel would lie in any county or local jurisdiction in which the libel was circulated —apparently upon the theory that “every fresh publication was a fresh crime.” Odgers on Slander and Libel (5th Ed.) pp. 467-469; Newell on Slander and Libel (3d Ed.) p. 299; 1 Bishop on Or. Law (8th Ed.) §§ 136, 142, 939; note to State v. Huston (S. D.) 9 Ann. Cas. 382. And it seems to have been generally held that mailing libelous matter constitutes a publication both in the jurisdiction where it is mailed and in that where it is received by the addressee, and may therefore support an action or prosecution in either jurisdiction. 18 Am. & Eng. Ency. Law (2d Ed.) 1119; Desty’s Am. & Eng. Crim. Law, 472, § 140(B).
' These old common-law principles undoubtedly had their origin in relation to the single acts of individuals, in a primitive society, and cannot, either as a matter of principle or common sense, be applied without qualification to the publication of modem newspapers.
It is not clear from the older authorities whether an action or prosecution could be maintained separately and simultaneously, and prosecuted to judgment, for every separate publication of the same libel, or in every jurisdiction where it was circulated, if every separate publication of the identical libel is indeed a separate offense, there is no escape from the conclusion that, separate actions and prosecutions may be simultaneously maintained in every jurisdiction. As declared by District Judge Anderson in U. S. v. Smith (D. C.)
We have examined the rules of the common law, and reviewed some of the more modern decisions, the general aspects, and reasoning of which seem pertinent to the question here presented for decision; but those rules ánd authorities are useful only for comparison and analogy, and cannot be accepted as authoritative guides.
AVhat we have to determine is, not what was the common law of venue in libel suits, but what is the statutory law of venue in Alabama, as prescribed by section 6112 of the Code:
“A foreign or domestic corporation may' bo sued in any cownty in which it does business by agent; but all actions for personal injuries must bo brought in the county whore the injury occurred, or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff’s residence.” (Italics ours.)
The meaning we accord to “injury” in section 6112 is made clearer by a consideration of 6110, which is a general venue statute, and which authorizes the bringing of non-contractual personal actions either in the county of the defendant’s residence, “or in the county in which the act or omission complained of may have been done, or may have occurred.” Certainly, in enacting the later section (6112), the Legislature did not intend to change the basis of venue in tort actions from thq county in which the wrongful act #was done or occurred to the county, or any county, in which the resulting damage occurred, and to thereby effect so vital a change in actions only against corporate defendants, and for personal injuries only.
3. The statute (section 6112) in prescribing the first basis of venue in general, which may be in one county or in many, reads “in any county in which it does business by agent.” But, with respect to the basis of venue here under consideration, it reads, *45 more restrictively, “in the county where the injury occurred” — not in any county where the injury occurred, nor in any county where the injury was repeated, or duplicated merely. This is significant — highly significant we think — of a legislative conception of a single venue to be determined by the locus of a primary wrongful act; and not of a multitude of venues to be created by mere repetitions or secondary extensions of the primary act.
We do not see how there can be any conflict of opinion as to the unfairness, injustice, or impolicy of permitting aggrieved persons, in this class of cases only, to select at their pleasure any judicial forum within the state where the political, religious, industrial, moral, or personal predilections of the local citizenship may readily furnish a jury whose biased views will probably be reflected, however sincerely, in a verdict favorable to them.
This aspect of the question has been forcibly stated and discussed by Graves, J., in his dissenting opinion in Julian v. K. C. Star Co.,
' In this connection it is in point to observe that our venue statutes (sections 6110, 6112) have been in force since 1852 and 1886, respectively, and we may well apply the remarks of Graves, J., to that consideration:
“For fifty-two years this statute has been upon the books. The reports are full of libel suits. Lawyers of state renown have represented plaintiffs in these suits. No discovery that their clients possessed the unlimited right to select the forum — a valuable asset, indeed, to be hid away so long. It has remained for distinguished counsel in this case, in the role of a modern Columbus, to make this discovery, in a case possessing modern exigencies. The construction placed upon the statute by learned lawyers, prior to these modern exigencies ought to be of weight with the court in now construing the statute.”
Summarizing our conclusions, as above indicated, we hold that in an action for libel against a newspaper the injury — the breach of duty — occurs, within the meaning and application of the venue statute, at the place where the newspaper is primarily published, and not in other places ■where it is secondarily published, that is merely circulated; that under the allegations of the pleas in abatement, the place of primary publication, and the locus of the injury, was Birmingham, in Jefferson county; and that this action could be prosecuted only in Jefferson county.
It results that the demurrers to ifleas in abatement numbered 6, 7, and 8 were improperly and erroneously sustained.
The judgment of the trial court in that behalf will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
As this ruling will probably dispose of the ■ cause as now pending, we deem it unnecessary to consider the other questions presented by the numerous assignments of error.
Reversed and remanded.
Dissenting Opinion
(dissenting). 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; AYhat docs the statute mean in cases of alleged libel V 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 *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. 168S:
“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,
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 appliéd 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 bo 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.