Cooper v. Phipps

• Citation: 33 P. 985,24 Or. 357
• Parties: COOPER v. PHIPPS et al.
• Decision Date: 17 July 1893
• Court: Supreme Court of Oregon

33 P. 985

24 Or. 357

COOPER v. PHIPPS et al.

Supreme Court of Oregon

July 17, 1893

Appeal from circuit court, Jackson county; W.C. Hale, Judge.

Action by Emma Cooper against Calistia Phipps and others to recover damages for libel. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal. Reversed.

P.P. Prim and Wm.M. Colvig, for appellants.

Lionel R. Webster and Francis Fitch, for respondent.

BEAN, J.

This appeal is brought to reverse a judgment for $5,000 recovered by plaintiff in an action for libel against the defendants. It is charged that in a certain suit for divorce and for the custody of a minor child, pending in the superior court for the county of San Francisco, state of California, between the defendant William Phipps, as plaintiff, and Minnie Phipps, a sister of the plaintiff herein, as defendant, Calistia Phipps, one of the defendants herein, was called and testified as a witness, and in response to the following interrogatory of counsel, "Has the defendant been in the habit of running around with other men?" answered: "yes, sir; two young men came and rented a house, and she and her sister [meaning this plaintiff] lived with them, and kept house for them; did this about two months. All the neighbors talked about their scandalous conduct." That this testimony was reduced to writing by the court commissioner, and was duly filed, at the instance of the defendant William Phipps, and became a part of the records and files of said court. That defendant meant by said words to accuse the plaintiff of being an unchaste woman, and of having lived in notorious, lewd, and lascivious cohabitation with some man to plaintiff unknown. That such statement was false, malicious, and defamatory, and was made with malice, and with the intent to defame the plaintiff, and at the instigation and request of the defendant William Phipps. The answer admits that the defendant Calistia Phipps testified as alleged in the divorce suit, but denies the other allegations of the complaint, and affirmatively alleges that such testimony was given with a firm belief in its truth, in answer to an interrogatory propounded to her by counsel, and without malice or ill will towards plaintiff herein, and that such testimony was relevant to the issue involved in said suit.

The first assignment of error necessary for us to consider is that, as a part of plaintiff's case in chief evidence in her behalf was admitted, tending to show that her general reputation for virtue and chastity was good. At the time this evidence was offered and admitted, no attack had been made by defendants, either in the pleadings or otherwise, upon the character of the plaintiff; and it was then and there stated by their counsel, in open court, and in the hearing of the jury, that her reputation for virtue and chastity was admitted to be of the best, and that no attack would be made thereon during the trial, nor was any such attack made. There is some conflict in the authorities as to whether, in an action for libel or slander, the plaintiff may give in evidence his good character, without it first having been attacked by the defendant either in the pleadings or evidence. "But the better opinion," says Mr Wharton, "is against this concession, on the ground that the law presumes a party's character good and that it is superfluous for him to prove that which is presumed." Whart.Ev. § 47. And again says the same author: "It would be manifestly improper to permit a party suing for damages to put in evidence, as reason why he should have heavy damages, that his character is good: First the law assumes all characters to be good, and there is no use in proving that which is thus assumed; secondly, to make good character the basis of recovery would be equivalent to saying that a person with a bad character can be injured with impunity; thirdly, a collateral issue would be provoked which would bear hard upon many deserving cases. For these and other reasons the courts have refused to permit such evidence to be put in." Section 50. This we think the better doctrine, and the one supported by the weight of authority. The law presumes the plaintiff's character to be good until it is attacked, and she may safely rest upon this presumption, and no evidence that she may offer can add to or increase its force or virtue. See Hitchcock v. Moore, 70 Mich. 112, 37 N.W. 914, 14 Amer.St.Rep. 474, and note, and 3 Amer. & Eng.Enc.Law, 112, where the authorities are fully collated, and to which reference may be had by any one desiring to pursue the investigation.

The next assignment of error is in the instruction to the jury that "actual ill will or malice will enhance the damages, and may be shown for that purpose, but need not be shown to entitle the plaintiff to recover." This was manifest error, under all the authorities. While there is some conflict in the adjudged cases as to whether witnesses are absolutely exempt from liability to an action for defamatory words uttered or published in the course of judicial proceedings, it is agreed by all the authorities that they are presumptively so; and before a witness can be held liable in a civil action this presumption must be overcome, by showing affirmatively that such statements were not only false and malicious,...