Israel v. Portland News Pub. Co.

• Decision Date: 14 January 1936
• Citation: 152 Or. 225,53 P.2d 529
• Parties: ISRAEL v. PORTLAND NEWS PUB. CO.
• Court: Oregon Supreme Court

53 P.2d 529

152 Or. 225

ISRAEL v. PORTLAND NEWS PUB. CO.

Supreme Court of Oregon

January 14, 1936

Department No. 1.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action by Mark M. Israel against the Portland News Publishing Company. From an order setting aside verdict and judgment for the defendant and granting a new trial, the defendant appeals.

Order set aside and case remanded with instructions.

Harold J. Warner and Wilber Henderson, both of Portland (S. S. Hahn, of Los Angeles, Cal., on the brief) for appellant.

O. A Neal, of Portland (William S. Shenker, of Portland, on the brief), for respondent.

CAMPBELL Chief Justice.

This is an action for damages brought by plaintiff, Mark M. Israel against defendant, the Portland News Publishing Company, a corporation, based on an alleged libel published in defendant's newspaper, a newspaper of general circulation, published in Portland, Ore.

The case was tried before a jury which returned a verdict in favor of defendant.

Thereafter plaintiff seasonably moved the court for an order setting aside the verdict and judgment and granting a new trial, assigning several grounds as the basis therefor. The court granted the said motion and ordered a new trial, and it is from that order that defendant appeals.

On November 21, 1933, W. Frank Akin was found shot to death in his apartment in Portland. He was a public accountant and had been employed as a special investigator. At the time of his death, he was investigating the fiscal affairs of the Port of Portland on behalf of the Governor of Oregon. Widespread publicity throughout the state was given by the press to the mysterious slaying. The identity of Akin's slayer or the motive for the slaying has not been determined up to the present time.

Various theories as to the motive for the murder and the identity of the slayer were advanced, one of which was made public by the plaintiff herein in an interview with a sergeant of the state police in the presence of a newspaper reporter of the Morning Oregonian, a newspaper of general circulation, "covering the whole Northwest," published in Portland, Ore. The newspaper account of the interview was published in the Morning Oregonian on November 23, 1933, and, omitting the head lines, is as follows:

"Traces of 'another woman' in the W. Frank Akin murder mystery were revealed yesterday in a startling story unfolded to state police by Mark M. Israel, jewler and loan broker, of 2034 Northeast Twenty-first avenue.

"The lengthy statement made by Israel to Sergeant S. C. Linville at state police offices provided authorities with the first tangible motive for the slaying of Akin, who was found shot to death in his living quarters at the Arbor Court Apartments, 1329 Southwest Fourteenth avenue, about 9 A. M. Monday morning.

"Israel, who said Akin had checked his books and made out his income tax reports for about four years, told Linville that the murdered man had told him on a number of occasions that a woman, with whom he had an affair, had repeatedly threatened his life.

"Akin Afraid of Woman

"'I talked with Akin lots of times,' Israel said, 'and he told me about his woman and added that the only reason he kept seeing her was that he was afraid she would kill him. He said she had threatened to do so a number of times and on several occasions went so far as to point a gun at him.'

"Continuing his sensational narrative, Israel said that Akin had informed him that about five years ago he (Akin) had taken the woman on an automobile trip through the Grand Canyon. On their return to Portland, Akin's alleged paramour told him she would prefer a Mann Act charge against him if he ever deserted her, Israel said.

"Story Heard Often

"'He confided in me often when he used the balcony of my store, the Century Loan & Jewelry Company, at Third and Washington streets, for an office. After this affair had lasted some time, Akin told me that he had confessed his infidelity to his wife and offered to give her a divorce. Mrs. Akin, I was told forgave her husband, but told him that he could leave with the other woman any time he desired.'

"Name Never Heard

"'I know he went around armed,' the jeweler related, 'because I gave him shells for the weapon several times.'

"In all of these asserted conversations, Akin never once mentioned the name of the woman, always referring to her as 'my girl' or 'her'.

"Mrs. Akin previously had emphatically denied that any woman had entered her husband's life since their wedding and added that their married life had been exceptionally happy. Mrs. Bertha Goul, the dead man's sister, who was present at the time Mrs. Akin made the above assertions, amplified the statements by saying the couple had always been considered ideal mates and seldom if ever had any disagreements."

On the morning of November 23d, the editor of defendant's newspaper, after reading the above article, directed one Miss Katherine Anderson, one of the reporters of defendant's newspaper, to contact the widow of Akin and ascertain what information could be garnered from her as to the truth or falsity of the aforesaid article.

On the same day, Miss Anderson got in touch with Mrs. Akin by telephone. After conversing a few minutes, due to her recent bereavement, Mrs. Akin was unable to continue the conversation, and one Mrs. Bertha Goul, Mr. Akin's sister, communicated the rest of Mrs. Akin's statement to Miss Anderson. Miss Anderson thereupon wrote the following story, based on the statement of Mrs. Akin, which was published in the second edition of defendant's paper on the same day:

"Akin's Widow Flays Gossip

"Brands Israel Story False: Tells of Dealings With Sponsor of Scandal.

"By Katherine Anderson.

"The scandalous tale related to police by Mark Israel, pawnshop dealer, about a 'jealous woman' in the life of W. Frank Akin, slain port investigator, was branded absolutely false Thursday by the widow of the murdered man.

"'It is silly, in the first place', she said, 'to suppose Frank might have confided in Israel on any private matter. He had no regard for Israel's integrity and frequently said so after being engaged to audit the books of that firm.

"'He told me he knew Israel was stealing from his own father-in-law and he said he had no use for that kind of a man. Israel hated him after that, and he hated Israel. Can you imagine the police believing that those two would have confided in each other? That Frank would have confided secrets of his private life to him?

"'It is ridiculous on the face of it, and the police are using it for a smoke screen in this whole thing. I suppose they will attempt to find all kinds of things to hurt him."'

It is the above story that offends the plaintiff, and which he alleges contains the defamatory matter, and further alleges was published by the defendant in its newspaper "willfully, maliciously and falsely and without just cause or excuse."

Defendant, in its first affirmative answer, pleaded the foregoing facts and claimed that the article of which plaintiff complains was communicated by the widow of said W. Frank Akin, and in defense of his good name as well as her own, and published in good faith and without malice.

For a second affirmative defense, it alleges that the facts in the article published were generally known among plaintiff's friends.

The jury returned its verdict in favor of defendant on November 23, 1934, judgment being entered thereon by the court on the same day. On December 14, 1934, and within the time allowed by the court, plaintiff filed his motion for a new trial which the court, on January 18, 1935, allowed:

One of the grounds of plaintiff's motion for a new trial was that: "The court erred in instructing the jury that the article as published was qualifiedly privileged, even if it be conceded for the purpose of this assignment of error, that there was sufficient proof of communication of the substance of the article by Mrs. Akin (which of course we do not concede) for the reason that the article far exceeded the occasion and therefor the article was not qualifiedly privileged."

As another ground of the said motion, the refusal of the court to give plaintiff's requested instruction No. 14 is assigned as error. Part of said instruction is as follows: "The language *** not being within any of the classes of privileged communications, the law implies malice in the author. ***"

The court instructed the jury that the communication, as a matter of law, was privileged.

After the court instructed the jury, counsel for plaintiff addressed the...