DeLashmitt v. Journal Publishing Co.

• Decision Date: 28 January 1941
• Parties: DeLASHMITT <I>v.</I> JOURNAL PUBLISHING CO.
• Court: Oregon Supreme Court

166 Or. 650

114 P.2d 1018

135 A.L.R. 1175

DeLASHMITTv.

JOURNAL PUBLISHING CO.

Supreme Court of Oregon.

Argued December 5, 1940.

Reargued January 28, 1941.

Reversed July 1, 1941.

Libel and slander — Loss of business

1. Where defamatory article made no mention of defamed person's business, no damage for loss of business was recoverable unless pleaded and proved.

Libel and slander — Loss of business

2. A causal connection must be established between the defamatory matter and business losses in order that business losses may be recovered by defamed person.

Libel and slander — Loss of business

3. In action for libel, evidence failed to show that decline in defamed person's business was in any way caused by publication of the defamatory article, and hence no damages for alleged business loss were recoverable.

Trial — Libel and slander — Loss of business

4. In action for libel, where proof failed to show a causal connection between defamatory article and alleged business loss, instruction permitting recovery for any loss to plaintiff's business was error.

Appeal and error — Instructions — Invited error

5. Where instruction was requested by defendant's counsel before conclusion of plaintiff's case in chief, apparently upon assumption that plaintiff would submit evidence substantiating allegations of special damages, but before court commenced to instruct the jury, defendant's counsel requested that jury be instructed that there had not been sufficient proof to establish any special damages and trial judge and counsel for plaintiff understood that the requested instruction had been withdrawn, but the court upon objection of counsel for plaintiff gave instruction as originally requested, the claim of "invited error" could not be sustained, although technical accuracy required that the written request be designated by name in withdrawing it.

Trial — Instructions — Exception

6. Where requested written instruction had been withdrawn and oral request to the contrary was made but written instruction was given by court, who stated that an exception would be allowed to the refusal of the court to give any of the requests submitted, the court thereby granted an exception to the omission of instruction requested orally.

Appeal and error — Instructions — Damages

7. In action for libel, where proof failed to show that plaintiff was entitled to recover any special damages because of business losses, error in giving instruction permitting recovery for any loss to plaintiff's business could not be cured by deduction of $50 from judgment on verdist awarding plaintiff $5,000 general damages and $50 special damages, where pleadings were not read to jury which were not instructed to read them, and the instructions nowhere employed the words "general" or "special" and the only kinds of damages mentioned in the instructions were nominal, compensatory and exemplary, and jury had been correctly told that exemplary damages were not recoverable.

Trial — Verdict

8. A jury's verdict must be unambiguous.

Appeal and error — Damages

9. There is no presumption that juries are familiar with legal terms, and it could not be assumed that jurors knew offhand the meaning of the terms "general damages" and "special damages" which are not parts of the layman's speech, but are legal devices resorted to for the purpose of denoting particular kinds of damages.

Appeal and error — Instructions — Error

10. When a requested instruction has been erroneously refused, prejudice is presumed, and the party in whose favor the error was committed has the burden of overcoming the presumption by showing that the error did not in fact influence the verdict, or that the record indicates that some other incident neutralized the error.

BAILEY, J., and KELLY, C.J., dissenting.

                  See 33 Am. Jur. 196
                  37 C.J., Libel and Slander, § 5432
                

Before KELLY, Chief Justice, and RAND, BAILEY, LUSK, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ROBERT TUCKER, Judge.

Action by Ralph DeLashmitt against the Journal Publishing Company for libel. From a judgment for plaintiff for $5,050, the defendant appeals.

REVERSED.

Charles A. Hart, of Portland (Carey, Hart, Spencer & McCulloch and Hale McCown, all of Portland, on the brief), for appellant.

Paul A. Sayre and Lamar Tooze, both of Portland (Cake, Jaureguy & Tooze, of Portland, on the brief), for respondent.

ROSSMAN, J.

This is an appeal by the defendant, publisher of the Oregon Daily Journal, from a judgment in favor of the plaintiff in a libel action. The judgment, in the amount of $5,050, was based upon a verdict.

Upon the trial the defendant conceded that it published the article quoted in the complaint; that the article was false; that the plaintiff bore a good reputation; that he was engaged in the retail florist business; and that he was entitled to some damages. The sole issue tried in the circuit court was the amount of damages. In mitigation the answer alleged that the defendant published the item through mistake, without malice, and that immediately after the error was discovered it published a correction. The libelous article appeared in the issue of December 3, 1938. A copy of it follows:

"Fined as Peeper — Ralph Delashmitt, 1733 N.E. 53d avenue, was fined $25 in municipal court Friday on a charge of being a Peeping Tom. Delashmitt was captured by Lambert L. Beard, 5833 N.E. Halsey street, who testified he found Delashmitt looking into the windows of his home."

The complaint, after alleging in some detail that as a result of the publication the plaintiff suffered humiliation and that his reputation, credit and health were injured, concluded those averments with the following: "Plaintiff has been generally damaged in the sum of $15,000.00." The next paragraph of the complaint states:

"* * * that immediately after the publication of said libel the volume of plaintiff's business declined materially; that this plaintiff believes and therefore alleges that he has lost a number of permanent customers, and that his volume of business has been materially decreased by the said publication, as hereinbefore set forth; that plaintiff believes and therefore alleges that by reason of the said publication, as hereinbefore set forth, this plaintiff's business, and therefore this plaintiff, has been specially damaged by loss of trade, good will and otherwise in a sum not less than $2,500.00."

Upon the trial it developed that the plaintiff caused the arrest of a "Peeping Tom" who plead guilty in the Portland municipal court and was fined $25. A reporter in the defendant's employ, before writing the above article, consulted the records of the police department. Either because the records departed from their usual style or because of haste, the reporter mistook the name of the accuser for the name of the accused and thus transposed them when he wrote his account of the affair. The article as published was given no headline. It appeared in the Saturday afternoon edition upon page 5 in a column with many other items entitled Town Topics. That afternoon a friend of the plaintiff called his attention to the article and thereupon the plaintiff telephoned to a representative of the defendant directing attention to the error. The next day, Sunday, the defendant's newspaper published a correction of the item upon page 4 of the main section of the paper. It carried the following headline in large type: "Florist Annoyed By False Report." The corrective article clearly stated that the plaintiff was the one who caught the culprit and that the previous report concerning the matter was false. The article consumed twice as much space as the erroneous one. Shortly a newspaper entitled The Rose City Herald, which circulates in the plaintiff's neighborhood, also published a corrective article.

1. As we have seen, the complaint sought the recovery of damages for injury to the plaintiff's business as well as for injury personal to the plaintiff. By reverting to the defamatory article, it will be noticed that it made no mention of the plaintiff's business. That being true, no damage for loss of business was recoverable, unless plead and proved. Mannix v. Portland Telegram, 136 Or. 474, 284 P. 837, 297 P. 350, 300 P. 350.

In an endeavor to support his claim for special damages, the plaintiff depended entirely upon the fact that his volume of business in the several months following the publication of the defamatory article was less than in the corresponding months of the previous year. For instance, his gross sales in December, 1938, that being the month in which the article was published, were $1,551.71, and his sales in December, 1937, were $1,764.97. His sales in January, 1939, were $62 less than in January, 1938. The sales in February, 1939, however, were $1.11 more than in February, 1938. But his sales in March, April and May of 1939 were less than the sales in the corresponding months of 1938. Possibly if all other circumstances affecting his business had been the same for the two years, it would be permissible to conclude that the article had had an injurious effect upon his business. However, we notice that each month of 1938 showed a decrease in the sales from 1937. And it is very material to note that the six months immediately following the publication showed a smaller decline from 1937 than the six months previous to the publication. The two percentages are 6.1 per cent and 17.5 per cent. The decline of December, 1938, from December, 1937, was 12 per cent, but the decline of November, 1938, from November, 1937, was 17.3 per cent.

The plaintiff testified: "We had a less volume of business in 1939 than we had in 1938. However, I believe it was a slow year in all of the florists' industry and also in the retail trade that year." Further, referring to the article, he said: "I believe our business suffered to a certain extent. It is hard to say any set amount that we did lose...