Irwin v. Ashurst

• Citation: 74 P.2d 1127,158 Or. 61
• Parties: IRWIN v. ASHURST et al.
• Decision Date: 04 January 1938
• Court: Supreme Court of Oregon

74 P.2d 1127

158 Or. 61

IRWIN v. ASHURST et al.

Supreme Court of Oregon

January 4, 1938

In Banc.

Appeal from Circuit Court, Klamath, County; L. G. Lewelling, Judge.

Action by Josephine M. Irwin against Edward B. Ashurst and others. Verdict and judgment for defendants, except named defendant whose motion for a nonsuit was granted at the close of plaintiff's case, and plaintiff appeals.

Affirmed.

RAND J., dissenting in part.

Arthur I. Moulton, of Portland (John Irwin, of Klamath Falls, on the brief), for appellant.

A. W Schaupp and Henry Perkins, both of Klamath Falls, for respondent Edward B. Ashurst.

William Ganong, of Klamath Falls, for respondents George Kincaid David R. Vandenberg, and RFJI Broadcasters.

BELT Justice.

This is an action to recover damages against the defendants who are alleged to have conspired to defame the character of the plaintiff. At the conclusion of the plaintiff's case in chief, the motion of the defendant Ashurst for nonsuit was allowed, but the cause was submitted to the jury as to the other defendants, resulting in a verdict in their favor. From the judgments of dismissal, the plaintiff appeals.

The facts out of which this action arose are as follows: The plaintiff was a witness for the state in a criminal action being tried in the circuit court for Klamath county, wherein one Marion Meyerle was charged with murder in the first degree. The defendant, Edward B. Ashurst, who is the circuit judge of the Thirteenth judicial district, presided at the trial. The defendant, David R. Vandenberg, was counsel for the defendant on trial in the murder case. The defendant KFJI Broadcasters, a corporation, is engaged in the business of operating a commercial radio broadcasting station at Klamath Falls, Or. The defendant, George Kincaid, is the general business manager of the radio broadcasting company.

The trial judge, with the consent of counsel, permitted the installation of a microphone in the courtroom for the purpose of broadcasting the proceedings in the murder trial. While the plaintiff, a woman fifty-five years of age, was testifying as a witness for the state in the murder case, it is alleged she was asked, among other things, on cross-examination, whether she used narcotics. The record, as made by the official court reporter, discloses the following questions and answers:

"Q. As much as I hate to I am going to have to ask you a personal question, Mrs. Irwin. Do you use narcotics? A. No, sir, not now.

"Q. You don't use any at all? A. I was ill for ten years and the doctor gave me morphine at the time I had operations.

"Q. You don't use them at all any more? A. No."

During the argument of the defendant Vandenberg to the jury it is alleged that he made the following statement of and concerning the plaintiff, which was broadcast to the general public: "Did you watch her? Did you see how she acted? The mind of a dope fiend, she was full of it, she was full of it when she testified; she showed she was an addict; why, she's a lunatic, she's a crazy lunatic; she's a dope fiend; how nervous she was all through her testimony; she's a hop head; her whole testimony is imagination and delusion from taking dope; all through her testimony showed it; that she testified she had taken dope for ten years, and you may well know that she is still taking it; that you know when a person has taken dope for ten years, that they never stop it; she's a dope fiend; that she is lower than a rattlesnake; that a rattlesnake gives you warning before it strikes, but this woman gives no warning; that she is under a delusion from taking narcotics as long as she has; that she has a delusion; that all the testimony made regarding Marion Meyerle is only in her mind; that on account of her being an addict, that I wouldn't believe a word she said; that for this reason her testimony is out of the case. That her husband, Lawyer John (the husband of the plaintiff, John Irwin) knew what was necessary to convict one of murder in the first degree, and that Lawyer John run the bullets, and that she fired them; that Lawyer John fixed up the testimony and drilled her, and Mrs. Irwin swore to it."

It is the theory of the plaintiff that the above argument was false and malicious and that, by reason of the unlawful broadcasting of the same, all the defendants who participated in such wrongful act are joint tortfeasors. It is also contended by plaintiff that the matter broadcast of and concerning the plaintiff was libelous per se.

Whether broadcasting defamatory matter over the radio is libel or slander constitutes an interesting question. Manifestly the earlier cases of libel and slander arose before the process of radio broadcasting was known. Old precedents, setting forth distinctions made by the courts between libel and slander, seem inapplicable to the radio which may be used as a most powerful agency for the defamation of character. In Sorensen v. Wood, 123 Neb. 348, 243 N.W. 82, 82 A.L.R. 1098, and Miles v. Louis Wasmer, Inc., 172 Wash. 466, 20 P.2d 847, the broadcasters read from manuscripts and the courts had no hesitancy in holding the defamatory matter libel. Would they have so held had no manuscript been used by the broadcaster? Assume that a person writes a speech of a defamatory nature and, after committing the same to memory, speaks over the air without referring to his manuscript. Would such broadcast be held slander and not libel? The person who hears the defamatory matter over the air ordinarily does not know whether or not the speaker is reading from a manuscript. Furthermore, what difference does it make to such person, so far as the effect is concerned? For a discussion of the subject, see 2 Journal of Radio Law 673; 46 Harvard Law Review 133; 66 U.S. Law Review 637; 16 Boston Univ. Law Review 1; 19 Minn. Law Review 611, 639; 12 Notre Dame Lawyer 15.

In the instant case it is not necessary to a decision to determine whether the alleged defamatory matter constitutes libel or slander. Hence, the question will be reserved. In keeping with the contention of plaintiff, it will be assumed but not decided that libel is involved.

The defendant Ashurst was judge of a court having competent jurisdiction over the subject-matter at the time the judicial proceedings were broadcast. There is no evidence tending to show that he participated in any conspiracy to defame the character of the plaintiff. It is well settled in England and in this country, on the ground of public policy, that a judge has absolute immunity from liability in an action for defamatory words published in the course of judicial proceedings. Newell on Libel and Slander, 4th Ed. § 360; Watts v. Gerking, 111 Or. 641, 222 P. 318, 228 P. 135, 34 A.L.R. 1489; Shaw v. Moon, 117 Or. 558, 245 P. 318, 45 A.L.R. 600; Siverson v. Olson, 149 Or. 323, 40 P.2d 65. The mere fact, in itself, that the defendant Ashurst permitted the installation of a microphone to report judicial proceedings affords no basis for liability.

Counsel for plaintiff recognizes the force and effect of the rule above stated, but asserts it has no application here for the reason that the installation of the microphone in the courtroom for the purpose of broadcasting the alleged defamatory matter was an "extra-judicial and illegal act." In other words, plaintiff contends that the absolute privilege of the court "does not extend beyond the four walls of the court room."

Undoubtedly there is a diversity of opinion as to the propriety of installing a microphone in the courtroom for the purpose of broadcasting judicial proceedings, especially in cases involving sordid details of crime. This court is not prepared to say that it is unlawful per se to install a microphone in a courtroom to report judicial proceedings. The American Bar Association frowns upon such practice. It is a matter for the determination of the trial judge.

It is difficult to see any difference in principle between radio broadcasting of court proceedings and the publication of the same in newspapers. The fundamental principles of the law of libel applicable to the publication of judicial proceedings by newspapers apply also to the broadcasting of such proceedings by radio stations. Sorensen v. Wood, supra; Miles v. Louis Wasmer, Inc., supra. In the instant case there was no comment by the radio company concerning the proceedings. All it did was to transmit to the public a true and accurate report of what was going on in the trial of the murder case.

Eliminating from further consideration the alleged liability of the defendant Ashurst, we now discuss the case against the defendant Vandenberg, who acted as counsel and whose argument to the jury is alleged to have been libelous per se. Of course, if no cause of action exists against Vandenberg, it follows that the defendant broadcasting company and its manager are not liable. Otherwise stated, if the argument made by Vandenberg in a court proceeding was qualifiedly privileged, the publication thereof by the defendant broadcasting station would likewise be privileged: Israel v. Portland News Pub. Co., 152 Or. 225, 53 P.2d 529, 103 A.L.R. 470.

Under the rule in England, no action will lie against a barrister for defamatory words spoken as counsel in the course of any judicial proceeding, even though they were irrelevant to the issue and uttered maliciously Newell on Libel and Slander, § 362. Such absolute privilege with reference to counsel does not obtain in this country. A communication made by an attorney in a judicial proceeding is absolutely privileged if it is pertinent and relevant to the issues, although it may be false and malicious. Pitts v. King, 141 Or. 23 15 P.2d 379, 472; 36 C.J. 1252. He cannot, however, in a judicial proceeding, utter...