Fowler v. Stradley

• Decision Date: 21 October 1964
• Citation: 238 Or. 606,395 P.2d 867
• Parties: , 11 A.L.R.3d 873 Thelma Chapman FOWLER, Appellant, v. Willard O. STRADLEY and Dale W. Morris, dba, Valley Rental Service, Respondents.
• Court: Oregon Supreme Court

Page 867

395 P.2d 867

238 Or. 606, 11 A.L.R.3d 873

Thelma Chapman FOWLER, Appellant, v. Willard O. STRADLEY and Dale W. Morris, dba, Valley Rental

Service, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 4, 1964.

Decided Oct. 21, 1964.

Richard D. Curtis, Eugene, argued the cause and submitted the brief for appellant.

Hale G. Thompson, Eugene, argued the cause for respondents. On the brief were Thompson, Mumford & Woodrich, Eugene.

Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN, and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Thelma Chapman Fowler, from a judgment which the circuit court entered in favor of the defendants, Willard O. Stradley and Dale W. Morris, after it had sustained their motion for a judgment of involuntary nonsuit. The action which terminated in that manner charged the defendants with the defamation of the plaintiff who is an attorney in good standing practicing her profession in Eugene. The defendants constitute a partnership and do business in Eugene under the partnership name of Valley Rental Service. The plaintiff had performed professional service for them in 1958. That service became the precursor of this action. The complaint prayed for general and punitive damages.

The plaintiff, as appellant, presents these two assignments of error:

'The court erred in ruling that the complaint failed to allege matters sufficient to constitute a libel per se.'

'The court erred in sustaining defendants' motion for a judgment of involuntary non-suit.'

In May of 1958 the plaintiff, at the defendants' request, prepared for them a partnership agreement which included a Buy and Sell Provision. For her services she charged the defendants $115 which they paid. The defendants found no fault with the partnership agreement and were operating under it at the time of the trial.

Before the defendants employed the plaintiff to prepare the partnership agreement they did not inquire of her as to the likely amount of her charge. Nor did they ask other attorneys as to the amount charged by a lawyer for the preparation of a partnership agreement. They had assumed that the fee would be $35 or $50. When the defendants received the plaintiff's statement of her charge they voiced no disapproval and asked no questions. They paid it promptly.

The above incidents occurred prior to May 1958. The exact time is not revealed by the record. May 22, 1958, the plaintiff learned that the defendants were dissatisfied with the fee which she had charged and they had paid. Upon that day she wrote the defendants a letter of which the following, omitting formal matters, is a copy:

'As I understand that you were more than a litte upset with my recent statement to you although you promptly paid it, enclosed herewith is my check in the sum of $115.00.

'My purpose in practicing law is to be of assistance to my clients; it is generally accepted that law at the present time is not a lucrative field; service is more important than fees and I value your good will more than any sum of money; this should have been indicated by my request that you call me if you had any question on the amount of the fee.

'I trust you have found the partnership papers satisfactory and I would be happy to complete the change of title on the property if you wish--without charge to you--as I feel it is an unfinished matter under the existing circumstances.

'Again let me assure you that I value good-will from you more than any amount of fee and that your objections in this matter should in no wise reflect upon Lloyd Thomas. He is a good insurance representative and considers his clients' needs carefully.'

The above letter was accompanied with the plaintiff's check in the amount of $115 payable to the defendants.

The defendants' place of business includes a room to which the plaintiff's brief refers as a 'restroom.' The defendants' brief terms it 'a storeroom and utility room.' The record does not disclose its size. In it there is a toilet and a wash bowl. A part of its walls contain shelves upon which the defendants placed supplies and items of equipment. Other parts of its walls were posted with printed material which a witness for the plaintiff described as 'instructions and maintenance bulletins to go with the equipment which the company had to operate and maintain.' Apparently the defendants, instead of maintaining a file for the bulletins, posted them on the walls.

A week after the defendants received the plaintiff's letter one of them, Dale Morris, wrote in its upper left corner 'Strad and Dale read this daily lesson #15' and in its upper right corner wrote 'Going fee is 35 to 50 dollars.' Stradley is the surname of one of the defendants; Dale is the Christian name of the other. Morris fastened together the letter, the plaintiff's statement (for $115) and the plaintiff's check which returned the fee; he then posted the combined documents upon the wall of the utility room. It remained there until October 1962 when a letter from counsel for the plaintiff demanded its removal. Since Morris attached the plaintiff's check to her letter when he fastened the letter to the wall in May of 1958, and since it remained there until the letter was removed in October 1962, it appears that the defendants did not accept the return of the fee. The record does not reveal the significance of the words 'Strad and Dale read this daily lesson #15.'

The defendants had three to five employees. The latter had access to the utility room. An occasional customer of the defendants used the plumbing of the utility room when he visited the defendants' place of business. One of them who was a friend and client of the plaintiff saw the plaintiff's letter in October, 1962, while it was fastened to the wall. He told the plaintiff about it and thereupon the letter from counsel for the plaintiff, which we have mentioned, caused its removal.

The plaintiff argues that the posting of her check, statement and letter, with the defendants' notations thereon, constitutes defamation. She depends especially upon Peck v. Coos Bay Times Publishing Co., 122 Or. 408, 259 P. 307; Marr v. Putnam, 196 Or. 1, 246 P.2d 509. Those decisions gave extensive attention to the rules which determine whether a challenged writing is defamatory. Murphy v. Harty, Or., 393 P.2d 206, which was decided after the briefs in this case were filed, gave further attention to that legal principle. Since the rule has received careful attention by this court, some of it very recently, we do not need to analyze the principle in this case.

Marr v. Putnam, supra, held:

'Whether an article is libelous per se is a matter of law for the court to determine. Peck v. Coos Bay Times Publishing Co., supra, 122 Or. 408, 418, 259 P. 307, 311, and cases cited; Kilgore v. Koen, 133 Or. 1, 9, 288 P. 192. In the Coos Bay Times case this court approved the following definition of libels actionable per se taken from 36 C.J., Libel and Slander, § 28, p. 1164; 53 C.J.S., Libel and Slander, § 13, p. 59:

"* * * defamatory words to be libelous per se must be of such a nature that the court can presume as a matter of law that they will tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided."

The following is taken from Restatement of the Law, Torts, Chapter 24, § 573, page 177:

'One who falsely and without a privilege to do so, publishes a slander which ascribes to another conduct, characteristics or a condition incompatable with the proper conduct of his lawful business, trade, profession, or of his public office whether honorary or for profit, is liable to the other.'

The question now occurs whether the defendants' publication ascribed to the plaintiff conduct, in charging $115 for her services, that defamed the plaintiff. The test is how the defendants' words would be understood by readers of ordinary intelligence.

The plaintiff contends that the above quoted publication accused her of having charged an exorbitant fee. She argues that an accusation of that kind made against a practicing attorney is defamatory. She cites Sanderson v. Caldwell, 45 N.Y. 398, 6 Am.Rep. 105; White v. Hanks, 255 S.W.2d 602 (Ky); Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 72 A.2d 820; Clemmons v. Danforth, 67 Vt. 617, 48 Am.St.Rep. 836; 33 Am.Jur., Libel and Slander, Sec. 69. None of those decisions held that a statement, without more, that declared that an attorney charged an exorbitant fee was defamatory.

We will now review those cases and several others that have come to our attention.

In the Sanderson case the plaintiff, an attorney, became a candidate for public office. The defendant's newspaper described him as an 'extra-radical candidate,' and said he 'did a good thing, in his sober moments, in the way of collecting soldiers' claims against the government, for a fearful per centage. The blood-money he got from the 'boys in blue,' in this way, is supposed to be a big thing * * * the soldiers and sailors are out in full force against him.' The court, in holding that the article was libelous per se, said:

'To say of one, that in his sober moments he collected soldiers' claims against the government at a fearful per centage, is, or at least may be, equivalent to a charge of drunkenness, and of unjust and extortionate conduct in the prosecution of his business.

'If the words 'sober moments,' in connection with the context, referring to the plaintiff as an 'extra radical candidate' for the Assembly, could have been construed in an innocent sense, it was for the jury to ascertain the real sense in which they were used * * *.'

In that case the publication charged drunkenness, 'blood-money,' extortionate conduct, and other wrongs.

White v. Hanks, supra, did not concern attorneys. Both plaintiff and defendant were automobile dealers. One of them sold to the other a used automobile and thereupon the...