33 P. 810 (Or. 1893), Upton v. Hume

Citation33 P. 810, 24 Or. 420
Opinion Judge[24 Or. 428] BEAN, J., (after stating the facts as above.)
Party NameUPTON v. HUME.
AttorneyS.H. Hazard, for appellant. [24 Or. 426] W.M. Kaiser and J.M. Siglin, for respondent.
Case DateJuly 17, 1893
CourtSupreme Court of Oregon

Page 810

33 P. 810 (Or. 1893)

24 Or. 420




Supreme Court of Oregon

July 17, 1893

Appeal from circuit court, Curry county; J.C. Fullerton, Judge.

Action by one Upton against one Hume for libel. From a judgment for plaintiff, defendant appeals. Reversed.

The facts fully appear in the following statement by BEAN, J.:

The plaintiff, Upton, sued Hume upon a charge of libel, in publishing in the Bold Beach Gazette, a newspaper owned and published by him, and circulated in the counties of Coos and Curry, in this state, certain articles concerning the plaintiff, containing among other things, the following language, alleged to be false and defamatory: "He (meaning the plaintiff) has already acquired the reputation of being a loathsome, venomous thing, without shame; a man without a spark of manhood; a betrayer of his party; a citizen whose word is not worth a straw; a vile and cowardly slanderer; an infamous scoundrel; and a perjured villain." "No, sir; you (meaning the plaintiff) done this simply for personal feeling and spite. You done so because Capt. Tichenor had publicly called you, to your face, a perjurer and a thief." "This, sir, was the worst of perjury, for by this, your false swearing, you deceived the court, and was the cause of granting a divorce illegally. Deny this, if you dare. The proof can be produced with little effort. We could recount many more of your ways that are dark, J.H. Upton, but we think the above will suffice for the present." The defendant, by his answer, admits the publication, but pleads (1) the truth in justification; and (2) as a matter of inducement, explanation, and justification, that at the time of the publication the plaintiff was a candidate for the office of joint representative for Coos and Curry counties in the legislature, and that the articles complained of were only a republication of unretracted charges published by one Walter Sutton in 1884, but who, at the time of the publication complained of, was publishing a paper called the Port Orford Tribune, and advocating therein the election of plaintiff, and abusing the defendant, who was supporting and advocating the election of plaintiff's opponent; that, when said articles were published by defendant, he had sufficient cause to believe, and did believe, that the charges therein contained were true; and that the plaintiff was an unfit person for the position to which he aspired, and, so believing, published the same in good faith, and without malice against the plaintiff, but for the sole purpose of advising the voters of Coos and Curry counties as to the true character of plaintiff and the inconsistency of Sutton. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $500, from which the defendant appeals, assigning error in the admission of testimony, and in giving and refusing certain instructions.

S.H. Hazard, for appellant.

[24 Or. 426] W.M. Kaiser and J.M. Siglin, for respondent.

[24 Or. 428] BEAN, J., (after stating the facts as above.)

Before considering the other assignments of error, we wish to advert to the question raised by the motion for a nonsuit, and by certain instructions given and refused by the trial court and that is whether the publication complained of was prima facie privileged by the occasion, and whether this action can be maintained by plaintiff without proof of express malice. The general rule is that, in the case of a libelous publication, the law implies malice, and infers some damages if the publication is false; but to this rule there are certain exceptions, in what are known as "privileged communications." Such communications are usually divided into several classes, with only one of which we are concerned at this time, and that is, generally stated, thus: "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contain criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." The rule was thus stated in Harrison v. Bush, 5 El. & Bl. 344, and has been generally approved by judges and text writers. Within this rule, it is held that it is not only the privilege, but the duty, of the public press to discuss before the electors the fitness and qualification of candidates for public[24 Or. 429] office conferred by the election of the people; and, when a man becomes such a candidate, he must be considered as putting his character in issue so far as respects his fitness and qualification for the office, and that every person who engages in the discussion, whether in private conversation, in public speech, or in the newspapers, may, while keeping within proper limits and acting in good faith, be regarded and protected as one engaged in the discharge of a duty. But it is not believed that this rule can be legitimately carried to the extent of justifying a publication which imputes to a candidate for office the commission of a crime, merely because he is seeking office. "The authorities fully sustain the position," says Green, P., in an able opinion on the subject, "that a publication in a newspaper, made either of a public officer or a candidate seeking an elective office from the votes of the people, which imputes to him a crime or moral...

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