Dell v. K. E. McKay's Market of Coos Bay, Inc.

Decision Date18 December 1975
PartiesGeorge DELL, Respondent, Cross-Appellant, v. K. E. McKAY'S MARKET OF COOS BAY, INC., Cross-Respondent, and J. M. Ridgway Co., Inc., and Don Rhudy, Individually, Appellants.
CourtOregon Supreme Court

Richard A. Roseta, Eugene, argued the cause for appellants. With him on the briefs were John E. Jaqua and Jaqua & Wheatley, eugene.

Paul D. Clayton of Luvaas, Cobb, Richards & Fraser, Eugene, argued the cause and filed briefs for respondent, cross-appellant.

Richard Bryson, Eugene, argued the cause for cross-respondent. With him on the brief were Calkins & Calkins and Bryson & Roberts, Eugene.

McALLISTER, Justice.

This is an action for defamation brought by plaintiff George Dell against K. E. McKay's Market of Coos Bay, Inc., J. M. Ridgway Co., Inc., and Don Rhudy. The action is based on a defamatory statement allegedly made by Rhudy. Dell alleged that in making the statement Rhudy was acting as the agent of both McKay's and Ridgway.

The jury returned a verdict for plaintiff against Ridgway and Rhudy for $40,000 general damages, but found in favor of McKay's. The defendants Ridgway and Rhudy have appealed from the judgment against them and plaintiff Dell has cross-appealed from the judgment in favor of McKay's.

George Dell was the assistant manager of McKay's Market in Florence. McKay's, which had a chain of markets, contracted with Ridgway for an audit of its stores, which apparently was for the purpose of checking the honesty of McKay's employees. Rhudy was in charge of the audit made of the Florence store. Evidence was obtained by Rhudy and his crew that Dell, while working as a checker, had failed to record all moneys received.

Rhudy informed McKay's personnel manager, Dennis Atkinson, and the manager of the Florence store, Rick Beck, of the results of Ridgway's audit of the Florence market. The three men summoned Dell to a meeting, which, for the sake of privacy, was held in the conference room of a local bank, at which meeting Rhudy informed Dell of the audit results. Because Dell could not explain his failure as a checker to record all sales made by him, he was discharged on the spot by Atkinson, who testified that he fired plaintiff for failure to record all sales on the register.

Dell returned to the market and informed his wife, who worked as a checker for McKay's, that he had been fired. The couple immediately went to their home where Dell told his wife what had happened and that he had been accused of stealing. After talking with her husband for about 30 minutes, Dell's wife told her husband that she was going back to the market and talk to Beck and Atkinson. She returned to the store and went to the back room where she found Rhudy, Atkinson, Beck and another McKay employee named Gary A. Nores. Mrs. Dell first tried to talk to Atkinson and Beck but apparently neither wanted to talk to her. Dell's wife than asked Phudy why her husband had been fired and Rhudy allegedly replied: 'George has stolen $10.00 a day, and at least $50.00 a week since coming to work for the store.' This was the statement upon which Dell based his cause of action for defamation as against Thudy, Ridgway and McKay's.

Paragraph IV of plaintiff's complaint alleged that McKay's, by and through its agents and employees, maliciously spoke to and in the presence of Pete Hess and divers other persons the following words of and concerning plaintiff: 'He had been stealing from the store and was fired.'

Defendant Rhudy 1 assigns as error the failure of the court to strike testimony that was introduced for the purpose of showing republication of the statement alleged in paragraph IV quoted above. Before the case was submitted to the jury the court struck paragraph IV from the complaint, leaving as the only basis of plaintiff's complaint the slanderous statement allegedly made by Rhudy.

The court did not, however, instruct the jury to disregard the republication testimony which had been received only as against McKay's. The court had concluded that the testimony could be considered by the jury as a republication of the statement made by Rhudy.

Plaintiff's wife testified that the statement made to her by Rhudy was made in a loud voice and that the three McKay employees who were present in the room were nearby. If the jury believed that the other persons heard Rhudy's statement, the jury could have found that Rhudy was liable for any republication by the other persons present, in which event the republication testimony was admissible as against Rhudy. We think the court did not err in permitting the jury to consider the republication testimony as against Rhudy. Prosser on Torts (4th ed) 762, § 112; Restatement of Torts § 576.

We find no merit in this assignment of error.

Defendant Rhudy also alleges that the court erred in permitting testimony regarding plaintiff's mental anguish or emotional distress because neither mental anguish nor emotional distress was pleaded and because such testimony was not causally connected with the statement allegedly made by Rhudy. This assignment of error wholly fails to comply with our Rule 6.18, which requires:

'Each assignment of error shall be clearly and succinctly stated under a separate and appropriate heading. The assignment of error must be specific and must set out verbatim the pertinent portions of the record. Assignments of error which the court can consider only by searching the record for the proceedings complained of will not be considered.'

Since we could consider this assignment of error only by a painstaking search of the voluminous record for the testimony objected to and the objections made thereto, if any, we decline to consider this assignment of error.

Defendant assigns as error the failure of the court to remove from the jury the plaintiff's claim for lost wages as a result of the alleged slander. The verdict submitted to the jury provided a space for the allowance of both general damages and special damages. The jury inserted $40,000.00 in the space for general damages and '$None' in the space for special damages. This issue was rendered moot when the jury disallowed plaintiff's claim for special damages.

The defendant assigns as error the denial of his motions for a nonsuit and for a directed verdict. Since the defendant did not rest on his motion for a nonsuit, but proceeded with his defense, we will consider only the motion for a directed verdict on the basis of the whole record. Ballard v. Rickabaugh Orchards, Inc., 259 Or. 200, 203, 485 P.2d 1080 (1971).

The court did not err in denying the motion for a directed verdict. There was direct testimony by Mrs. Dell that the defamatory statement was made by Rhudy and further testimony from which the jury could have found that Rhudy's statement was...

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12 cases
  • Skaskiw v. Vt. Agency of Agric.
    • United States
    • Vermont Supreme Court
    • 19 d5 Dezembro d5 2014
    ...presence of a privilege. Helmstadter v. N. Am. Biological, Inc., 5 Neb.App. 440, 559 N.W.2d 794, 801 (1997) ; Dell v. K.E. McKay's Mkt., 273 Or. 752, 543 P.2d 678, 681 (1975) ; see also Burbage, 447 S.W.3d at 254 (stating that plaintiff has burden where complaint shows presence of condition......
  • Sue Skaskiw & Vt. Volunteer Servs. for Animals Humane Soc'y v. Vt. Agency of Agric.
    • United States
    • Washington Supreme Court
    • 19 d5 Dezembro d5 2014
    ...show the presence of a privilege. Helmstadter v. N. Am. Biological, Inc., 559 N.W.2d 794, 801 (Neb. Ct. App. 1997); Dell v. K.E. McCay's Mkt., 543 P.2d 678, 681 (Or. 1975); see alsoBurbage, 2014 WL 4252274, at *3 (stating that plaintiff has burden where complaint shows presence of condition......
  • Franson v. Radich
    • United States
    • Oregon Court of Appeals
    • 15 d3 Abril d3 1987
    ...raised by motion to dismiss if the amended complaint alleges facts which, if true, establish the privilege. See Dell v. K.E. McKay's Market, 273 Or. 752, 759, 543 P.2d 678 (1975); Lee v. Nash, 65 Or.App. 538, 671 P.2d 703 (1983), rev. den., 296 Or. 253, 675 P.2d 491 (1984). If the absolute ......
  • State v. Tidyman
    • United States
    • Oregon Court of Appeals
    • 9 d1 Novembro d1 1981
    ...this assignment of error we would be required to search the entire record. We decline to do so. ORAP 7.19. Dell v. K. E. McKay's Market, 273 Or. 752, 543 P.2d 678 (1975); Thomas v. Penfold, 23 Or.App. 168, 541 P.2d 1065 (1975), rev. den. (1976). The motions to suppress were properly MOTION ......
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