Graham v. Mixon

MELVIN, J.

Plaintiff, who resides in Sacramento County, brought an action for libel against defendants, who live in Yolo County and there publish “The Mail of Woodland.” This newspaper, in which, according to the complaint, the alleged libel was published, is circulated and read in Sacramento County, according to the averments of said complaint.

Defendants moved for a change of the place of trial to the county of their residence, which, they say, is the only proper place of trial. If this contention be correct, they were entitled to the order which they sought. (Code Civ. Proc., sec. 397.) The motion was denied upon the sole ground that

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an action for libel is one “for injury to person,” and, therefore, under the provisions of section 395 of the Code of Civil Procedure as such section has stood since 1911, is triable in the county “where the injury occurs.” The appeal is from the order denying defendant’s motion.

In considering the meaning which the legislature intended to impart to the words “injury to person,” it is legitimate and proper for us to contemplate the consequences which would follow any certain construction of those words. If the legislators intended to include “libel” under the general designation “injury to person,” it would follow that a man of state-wide reputation for good citizenship would be injured in his person in each county in which a libelous article regarding him would be circulated, and might select any one of such counties as the place for the commencement of his action against the publisher. Each county would be, as to him, “the county where the injury occurs,” within the purview of section 395 of the Code of Civil Procedure. On the other hand, the man of local reputation might suffer detriment only in the county or counties in which the attack upon his character would amount to an injury. There can be little doubt that the legislature contemplated no such result when using the expressions, “if it be an action for injury to person” and “in the county where the injury occurs.”

Even if we say that the presumption of injury arises from the libelous publication, and that, therefore, there is no difference between the man of local and the one of general reputation in the matter of available places for libel suits, we are confronted with another inequality in the operation of the statute which surely was not intended by the lawmakers. If libel be an “injury to person,” the victim has a broader field of action against the owner of a newspaper of general circulation publishing the libel than would be available to him if he should receive serious bodily hurt from the negligent operation of an automobile owned by a resident of a county other than the one in which the accident might occur. In the former case he might have as many places for the commencement of his action as there are counties in the state, while in the latter he would be limited to the county in which the accident occurred or that in which the owner of the motor car resided at the time of the infliction of the injury. We can think of no good reason why the legislature should so