Hinkle v. Alexander

• Decision Date: 07 June 1966
• Citation: 244 Or. 267,417 P.2d 586
• Parties: Wayne F. HINKLE, Appellant, v. Clint ALEXANDER, Respondent. . Argued and Submitted on Appellant's Petition for Rehearing
• Court: Oregon Supreme Court

Page 586

417 P.2d 586

244 Or. 267

Wayne F. HINKLE, Appellant, v. Clint ALEXANDER, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Appellant's Petition for Rehearing June 7, 1966 Decided Aug. 12, 1966.

John C. Anicker, Jr., Oregon City, argued the cause for appellant. On the briefs were Jack, Goodwin & Anicker, Oregon City.

George L. Hibbard, Oregon City, argued the cause for respondent. With him on the brief were Hibbard, Jacobs, Caldwell & Kincart, Oregon City.

Before McALLISTER, C.J., and PERRY, SLOAN, HOLMAN, LUSK and SCHWAB, JJ.

SLOAN, Justice.

A rehearing was allowed in this case for the purpose of resolving the question stated in the concurring opinion in Murphy v. Harty, 1964, 238 Or. 228, 250, 393 P.2d 206, 217, and renewed in the concurring opinions in Fowler v. Stradley, 1964, 238 Or. 606, 614, 395 P.2d 867, 873, and in the concurring opinion originally filed in this case. The question is: Should we adhere to the common law rule in respect to defamation by libel which is adopted as Restatement, 3 Torts, Ch. 24, § 569 (1938):

'One who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the publication a libel is liable to the other although no special harm or loss of reputation results therefrom.'

In contrast to the common law rule is that which limits actionable libel, in the absence of a claim for special damages, to the publishing of matter defamatory on its face or Per se, as in slander. Basically, this requires that the defamation must accuse the victim of the commission of a crime, or derogatory words in reference to the person's business, trade or profession, or an assertion of unchastity to a woman, or of having a loathsome disease. If the implication of the defamatory words is not within one of these four classifications it is held that the defamation, if any, is a libel Per quod and special damages must be alleged and proven. See Prosser, Torts (3d ed. 1964) page 782.

As noted in the concurring opinions above mentioned, our prior decisions are not conclusive on the subject. In Ruble v. Kirkwood, 1928, 125 Or. 316, 266 P.2d 252, we followed the rule that in libel, as in slander, it was necessary that the publication be defamatory on its face otherwise it would be necessary to allege and prove special damages. Two years later in Reiman v. Pacific Devel. Society et al., 1930, 132 Or. 82, 284 P. 575, we said that the Ruble case was not intended to limit libel to the same restrictions that applied to slander and we followed the common law rule. In Hudson v. Pioneer Service Co., 1959, 218 Or. 561, 346 P.2d 123, we appear to have followed the libel Per se rule. However, in that case as well as in Murphy v. Harty, 1964, 238 Or. 228, 393 P.2d 206, we did look to extrinsic facts to determine whether or not the published matter was libelous Per se. In each of these cases the alleged defamation, as in the instant case, was an assertion that the plaintiff had failed to pay his creditors. In Hudson, it was said that because plaintiff was a logger, credit was not essential to his occupation and harm to his credit would not impair his ability to work, therefore, as to him the publication was not libelous Per se. In Murphy, the plaintiff was a minister, and in reliance upon accepted authority, we held that such a claim about a minister was libelous Per se; not, however, as a business libel but as a personal one.

Our situation is much like that reported in the Wisconsin case of Martin v. Outboard Marine Corporation, 1962, 15 Wis.2d 452, 113 N.W.2d 135. In that case, after reviewing its prior inconsistent decisions, the court decided, 'We adhere to and adopt the common-law rule of libel, as stated in sec. 569* of the Restatement of Torts on Defamation, that all libels are actionable without alleging or proving special damages.' (*Footnote omitted). 113 N.W.2d at 139.

The New York Court of Appeals in the recent case of Hinsdale v. Orange County Pub., 1966, 17 N.Y.2d 284, 270 N.Y.S.2d 592, 217 N.E.2d 650, reviewed and reconciled its prior decisions and, without saying so in as many words, followed the common law rule that it had applied in some of its decisions, but not in others.

The opinion of the Wisconsin court is very persuasive. So is the New Jersey case of Herrmann v. Newark Morning Ledger Co., 1958, 48 N.J.Super. 420, 138 A.2d 61, beginning at page 73.

The question of which of the two rules should be adopted in the proposed Restatement 2nd on the subject of Defamation is currently of consuming interest to the members of the American Law Institute and of other members of the bench and bar who are following the debate with equal interest. Professor Prosser is strongly urging that the Restatement 2nd should adopt the rule which, he asserts, is now followed by a majority of the American courts, I.e. that special damages must be established unless the defamatory meaning of the publication is apparent from the published matter. Professor Prosser has advanced his arguments in an exhaustive brief prepared for the members of the American Law Institute and which has been published in somewhat condensed form in 79 Harv.L.Rev., at page 1629, by the title of More Libel Per Quod. He had earlier presented the same point of view in the third edition of Prosser on Torts, 1964, beginning at page 780, and in an article, Libel Per Quod, in 46 Va.L.Rev. 839.

His oppposing advocate is Laurence H. Eldredge, Philadelphia lawyer and former Revising Reporter on Torts for the American Law Institute. He supports the present Restatement rule with an energy and zeal equal to that of Professor Prosser. He also has prepared an exhaustive brief for the members of the American Law Institute and which has also been published at 79 Harv.L.Rev. 733, entitled The Spurious Rule of Libel Per Quod. Mr. Eldredge's analysis of the case authority causes him to conclude that 'When we turn away from the area of confusion, misconception and misstatement, we find an impressive and constantly increasing body of American law that is in accord with the English law and section 569 of the Restatement of Torts.' Id., at 743. He also contends that the trend of decision since the Restatement was published in 1938 is contrary to Professor Prosser's conception of it. He can also state, without much contradiction, that 'It is not without significance that the rule that for a libel by extrinsic facts there can be no recovery in the absence of proof of special damages has been universally denounced by the scholars who have given it consideration, including Dean Prosser himself.' Id. at 743. In support of the last statement he makes footnote reference to Prosser on Torts (1st ed. of 1941), 1 Harper & James, Torts, 1956, §§ 5.5, 5.9 and the writings of other scholars of established authority. One of these, Professor Henn in Libel-By-Extrinsic-Fact, 1961, 47 Cornell L.Q. 14, at page 45, observes that 'Most of the cases which Dean Prosser cites in support of the fact that the courts are assimilating libel-by-extrinsic-fact to slander do not appear to be in point.'

Of the particular local interest is an article by then Dean Carpenter of the University of Oregon Law School at 7 Or.L.Rev.1928, at pages 356--357, where he denounced the injection of the limitations of a slander action into the law of libel in these words.

'While the origin of this departure from the orthodox law of libel is obscure, it probably arose out of a failure to observe the well established distinction between the law of libel and of slander. The departure is unfortunate, in the first place, because there is no foundation in principle for such distinction, and in the second, the distinction which exists in slander between words actionable Per se and those actionable only on proof of special damage, does not parallel that which these American courts have introduced into the law of libel. The result is to clutter the law up further with anomalous distinctions which have no merit and which lead to further confusion.

'It would be even more unfortunate if the courts should impose upon the comparatively simple and just rules of libel, the antequated harsh rules of slander, which have been condemned as odious and detested.* Rules which for example, permit a woman to recover for a ridicule of her hat but deny her recovery if she is unmarried and is called a prostitute,* should not be substituted for simple and just rules.' (Footnote omitted).

At the cited reference to Harper & James it is said: 'The question is libel or no libel, and once it is determined that words are defamatory, damage is 'presumed' as a matter of substantive law. Id.,...