Cushman v. Day

• Citation: 43 Or.App. 123,602 P.2d 327
• Decision Date: 05 November 1979
• Docket Number: R,No. 670,No. A7805-07992,670,A7805-07992
• Parties: Ellwood H. CUSHMAN, Jr., Bill L. DeForrest, Gary L. Elliott, Charles E. Goette, J. M. Gooley, Richard D. Grimes, Ronnie J. Larion, Gary L. Olson, Richard J. Sattler, Paul Schwarz, James M. Sincale, Cynthia J. Weck, and David D. Wilkie, Appellants, v. L. B. DAY and Teamster Food Processors, Drivers, Warehousemen and Helpers Local Unionespondents. ; CA 13541.
• Court: Oregon Court of Appeals

Page 327

602 P.2d 327

43 Or.App. 123

Ellwood H. CUSHMAN, Jr., Bill L. DeForrest, Gary L. Elliott Charles E. Goette, J. M. Gooley, Richard D. Grimes, Ronnie J. Larion, Gary L. Olson, Richard J. Sattler, Paul Schwarz James M. Sincale, Cynthia J. Weck, and David D. Wilkie, Appellants, v. L. B. DAY and Teamster Food Processors, Drivers Warehousemen and Helpers Local Union No. 670, Respondents.

No. A7805-07992; CA 13541.

Court of Appeals of Oregon.

Argued and Submitted Aug. 29, 1979.

Decided Nov. 5, 1979.

Joseph E. Isaac, III, Tualatin, argued the cause and filed the briefs for appellants.

James M. Callahan, Portland, argued the cause for respondents. With him on the brief was Gearin, Landis & Aebi, Portland.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

Plaintiffs appeal the judgment order sustaining defendants' demurrer to all four causes of action alleged in plaintiffs' Second Amended Complaint. We reverse.

The Second Amended Complaint is taken as true for the purpose of this appeal. It alleges the following facts:

Plaintiffs are police officers employed by the Eugene Police Department. On March 30, 1977, they reported to the scene of a strike by defendant Teamsters Local 670 members against a Eugene business establishment. They were requested by the employer to prevent picketers from obstructing the free flow of traffic and personnel into and out of the employer's premises. In the course of so doing certain of the picketers were arrested on charges of disorderly conduct.

Later the same day defendant Day, a Teamster official, made certain statements to the news media regarding the conduct of the police officers involved. Some of these statements were broadcast over a Eugene radio station and others were published in the Eugene Register-Guard newspaper. Day also sent a telegram to Police Chief Brooks and Eugene Mayor Gus Keller that day and a mailgram to Police Chief Brooks on the following day.

Plaintiffs have alleged in their Second Amended Complaint that certain of the statements made by Day were false and defamatory. They also allege that the statements were made with malice and with knowledge of their falsity or with reckless disregard for their truth; that the statements were made of and concerning plaintiffs; that defendant Day was acting within the scope of his employment with defendant Teamsters Local 670 when he made the statements; and that plaintiffs were damaged by the statements.

Defendants filed a demurrer which was sustained as to all four causes of action alleged in the complaint. We treat each cause of action separately inasmuch as each involves a separate communication.

Plaintiff's first cause of action alleges defamation in certain statements made during an interview broadcast over radio station KASH. ¹ Defendants' demurrer to this cause of action is based upon two grounds: that the statements in question are a non-actionable expression of opinion by Day and that they are a general attack on the operation of government rather than defamation of any individual and thus protected by the First Amendment.

Whether a statement is Capable of bearing a defamatory meaning is a question of law for the court. However, if capable of such a meaning, whether or not the statement is actually defamatory is generally a question for the finder of fact. Beecher v. Montgomery Ward & Co., 267 Or. 496, 517 P.2d 667 (1973); Hinkle v. Alexander, 244 Or. 267, 417 P.2d 586 (1966).

We find that it is possible to read certain of defendant Day's statements as implying undisclosed defamatory facts. For example, the statement,

" * * * There'll be criminal charges filed against every officer that was out there this morning * * * "

implies knowledge of specific but unarticulated facts showing the commission of one or more crimes by each of these plaintiffs. Day's additional observation that a person who had been handcuffed would require two days of hospitalization strengthens this implication. We cannot say as a matter of law that all of the statements made in the radio broadcast were non-actionable.

Defendants also contend that the statements made in the radio broadcast are criticisms of government conduct which are protected speech. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We agree that some of the statements alleged in this cause of action are impersonal criticisms of the police department in general and are not directed towards plaintiffs in particular. ² However, there are other allegations which, as noted, are capable of defamatory meaning and which can be interpreted as directed toward these plaintiffs specifically. The trial judge erred in sustaining the demurrer to the first cause of action.

The demurrer to the second cause of action which concerns statements reported in the Eugene Register-Guard ³ is based on the contention that none of the plaintiffs was named or otherwise personally identified in the statements and that none of the statements could reasonably be understood as having special reference to any of the individual plaintiffs. For state law purposes, however, plaintiffs have met their burden under ORS 16.530(1) ⁴ which requires only that they allege that the defamatory statements were made concerning them. The statements in question made charges of serious misconduct by the police who were present at the site of the picketing, and plaintiffs allege that they were the officers involved.

It is true that under this second cause of action, no specific instance of misconduct is charged against any particular individual. However the statements read together charge misconduct of the group as a whole. The group is made up of 13 police officers. When all or a significant portion of a small group are defamed, each individual in the group may be found to have been defamed. See Restatement (Second) of Torts, section 546A(b) and (c); Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.1952); Farrell v. Triangle Publications, Inc., 399 Pa. 102, 159 A.2d 734 (1960); See also Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). It is possible in reading the entire article to conclude that all of the officers present, or the majority of them, were involved in the misconduct alleged.

There is a constitutional dimension to defendants' position concerning this second cause of action. Impersonal attacks upon government and its operations may not be the subject of an action for defamation. The statements must be made "of and concerning" the plaintiffs. New York Times Co. v. Sullivan, supra. The inquiry as to whether certain statements were made "of and concerning" a plaintiff is, however, usually one of fact. See New York Times Co. v. Sullivan, supra 376 U.S. at 288, 84 S.Ct. 710; Rosenblatt v. Baer, supra 383 U.S. at 81, 86 S.Ct. 669. The allegations here were sufficient to raise that issue of fact. The trial court erred in sustaining defendants' demurrer as to this cause of action.

As to plaintiffs' third cause of action, defendants' demurrer is based upon the same contentions already discussed. We resolve the questions in the same way. The statements alleged in the third cause of action ⁵ contain a general allegation of brutality by the police officers present along with specific examples of such brutality. Not all can be classified as opinion or as an impersonal attack on government as a matter of law. Although no specific officer is named, the group is sufficiently small that they all may be defamed by the statements made. ⁶

Defendants also contend that this communication and that alleged in the fourth cause of action ⁷ are absolutely privileged and, therefore, not actionable. The communications do enjoy at least a qualified privilege because they were made to "those who may be expected to take official action of some kind for the protection of some interest of the public." Prosser, Torts (4th ed. 1971); See also Demers v. Meuret, 266 Or. 252, 512 P.2d 1348 (1973); Schafroth v. Baker, 276 Or. 39, 553 P.2d 1046 (1976). A qualified privilege, however, may be lost by the presence of actual malice. Demers v. Meuret, supra. Plaintiffs have alleged malice on the part of defendant Day.

Defendants cite, Inter alia, Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594 (1959), where it was held that the absolute privilege that applies to statements made in the course of, or incident to, a judicial proceeding also extends to quasi-judicial proceedings. Ramstead involved a complaint to the Lane county grievance committee of the Oregon State Bar. The court held that the relevant statements made in a complaint designed to initiate quasi-judicial action by the committee were also protected by absolute privilege. However, Demers v. Meuret, supra, distinguished between occasions calling for absolute privilege and those calling for qualified privilege, and held that every communication to one who is in a position to take action on the public's behalf is not absolutely privileged.

In contrast to the circumstances in Ramstead, the communications alleged in plaintiffs' third and fourth causes of action here were not made in the course of, nor did they necessarily seek to initiate, any judicial or quasi-judicial action, even assuming that the mayor and police chief would be proper persons to receive such communications. Both the telegram and the mailgram state that defendants intend to file criminal charges against the officers. They do not on their face request that either the police chief or the mayor investigate possible criminal conduct of the officers or initiate any charges against them individually or as a group, although either or both communications Could be interpreted to have that purpose. The intent of the sender not being apparent on the face of the documents, the matter becomes a jury question.

Should a jury find that the communications were not intended to initiate official action it would follow that they were...