Kilgore v. Koen

• Citation: 133 Or. 1,288 P. 192
• Parties: KILGORE v. KOEN.
• Decision Date: 27 May 1930
• Court: Supreme Court of Oregon

288 P. 192

133 Or. 1

KILGORE v. KOEN.

Supreme Court of Oregon

May 27, 1930

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by C. V. Kilgore against E. A. Koen. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

This is a civil action for libel. The cause was tried to the court and a jury. At the conclusion of plaintiff's testimony defendant moved the court for a judgment of nonsuit, which was granted. Plaintiff appeals.

Arthur G. Beattie, of Oregon City (Schuebel, Beattie & Miller, of Oregon City, on the brief), for appellant.

Livy Stipp, of Portland, for respondent.

BEAN, J.

The plaintiff, C. V. Kilgore, was a teacher in the grade schools of Molalla, Clackamas county, Or., where he had been employed for some time. The defendant was the owner and editor of the Banner Courier, published at Oregon City, Clackamas county Or.

The plaintiff alleges that the defendant maliciously published articles in such newspaper, which were false and defamatory to his damage. A portion of the articles are set forth in the body of the complaint, and the whole articles are attached as exhibits to the pleading for our consideration. The first article complained of is headed, "School Principal is Accused of Theft," and recites, in substance, that C. V Kilgore of the Molalla grade school is under arrest charged with burglary, with his preliminary examination set for Saturday; that he was arrested Saturday morning on land that he owns, and the direct accusation that he must face in court is breaking into the barn of O. F. Cady, and stealing a single harness. The article then proceeds:

"The defense of Kilgore is expected to be that he bought the harness early Saturday morning from an unknown man, but the deputy sheriffs who worked up the case, feel that they have a water-tight case against the school principal, having in their possession earth containing the peculiar footprints.

"When Cady went to his barn Saturday morning he found the harness missing. He called the sheriff's office and two men went out. The officers found footprints leading from the barn that were peculiarly marked in that the hobnails were placed at a certain point on the shoes. These tracks led first towards the woods, then veered off and went to the garage on the Kilgore place. From there they led to the Kilgore house. There they found Kilgore wearing the shoes that had made the fresh tracks from the Cady barn to the Kilgore garage and home. They placed him under arrest and found the missing harness in Kilgore's car in the garage."

It is then stated that Kilgore was brought to Oregon City and arraigned before a justice and bail was fixed which he furnished and in regard to his being employed in the school at Molalla. The particular portion of the article complained of and set forth in the complaint, to which we add those portions in italics, is as follows: " O. F. Cady told the officers that he had reason to suspect Kilgore. Some time ago forty Rhode Island red hens were stolen from the Cady place, and at that time Cady tracked some one to the Kilgore place and there found about the same number of red hens. Cady inquired of Kilgore as to where he got them getting the answer that they were purchased from the O. A. C. A letter from Cady brought the information that the college had had no dealings with Kilgore, and that they did not handle that particular breed of chickens. Because of this happening the officers at once suspected Kilgore, and their suspicions were strengthened by the finding of the easily identified tracks leading from the Cady place to the home of Kilgore. " It also states that the friends of Kilgore point out their reasons for believing that he is innocent, among which is that other articles had been taken from the Cady barn, but none were found upon search of the Kilgore home.

The second item and alleged cause of action is contained in the following paragraph. That portion which we italicized is not referred to in the body of the complaint, except as it appears in the exhibit thereto, and reads as follows: "The two deputies who worked up the case insist that the testimony is enough to hold Kilgore for trial, they having followed the peculiar fresh footprints from the Cady barn to the home of Kilgore, and there found not only the harness, but found on Kilgore the shoes that exactly matched the footprints. Earth containing the footprints was taken up and is in the county clerk's office. It is expected to keep this record in shape for presentation when the case comes to trial. Since the arrest the officers have been busy, and have some interesting leads. A man named Tracy is laying claim to the chickens found on the Kilgore place, and which Tracy insists were stolen from him some months ago."

The newspaper proceeds to mention his connection with the school and that the sentiment at Molalla is divided; that Kilgore has his strong friends, and to the effect that the sheriff takes the position that the case should be investigated. The third item in the newspaper and cause of action is not relied upon, upon this appeal, and therefore will not be referred to.

The plaintiff was tried in the circuit court upon the charge and acquitted.

The defendant demurred to the complaint, which demurrer was overruled, and afterward answered admitting the publication of the articles, but denied that they were maliciously published or were false or defamatory and denied the damage, and further pleaded that at the time of the arrest the sheriff's deputies stated to defendant the facts upon which the arrest was made, which he published in the newspaper as detailed by the officers without any maliciousness toward plaintiff, and as an article of news with respect to the arrest of plaintiff to inform the public thereof and pleads justification; and claims that the articles complained of were qualifiedly privileged.

Plaintiff contends that the libelous words impute a crime and that the libelous words are libelous per se and are presumed to be malicious and are not privileged.

The defendant takes the position that the publication of the articles concerning the charge for which plaintiff was arrested and tried was published as the report of the law officers; that it made no charge or imputation that the plaintiff was guilty of a crime, and is qualifiedly privileged.

Upon the trial the plaintiff as a witness testified, in substance, that he was a principal in the Molalla public school and had taught school for twenty-six years; that he was married and had one boy left in the family. There was no attempt upon the part of plaintiff to indicate or prove any actual or express malice on the part of defendant in the publication of the articles complained of. Plaintiff then rested, whereupon the motion for a nonsuit was granted. The defendant moved to strike portions of defendant's answer and requests a ruling thereon in the event that the ruling upon the motion for a nonsuit is not sustained.

The plaintiff assigns error in granting defendant's motion for a nonsuit, which is in the nature of a demurrer to the evidence. The ruling on the motion for a nonsuit raises the questions of law pertaining to the case. Privileged communications are usually divided into two classes: (1) Absolute privilege; and (2) conditional or qualified privilege, or, as is sometimes called, "quasi privilege." In cases of absolutely privileged communications, the occasion is an absolute bar to the action, while in cases of conditionally or qualifiedly privileged communications, the law raises only a prima facie presumption in favor of the occasion, where it is said to be conditioned upon the want or absence of express malice. 36 C.J., p. 1238, § 203. See also Upton v. Hume, 24 Or. 436, 33 P. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863.

A "qualifiedly privileged communication," which we have to consider in this case, is a defamatory communication made on what is called an occasion of privilege without actual malice. As to such communications there is no civil liability. The fact that a publication is qualifiedly privileged simply relieves the publication from the presumption of malice which would otherwise prevail. 36 C.J. § 205, p. 1241.

It is so well settled that it seems unnecessary to state, except to avoid misunderstanding, that in the absence of a statute, newspapers as such have no peculiar privilege but are liable for what they publish in the same manner as the rest of the community. This rule is not inconsistent with the "liberty of the press," as this right is recognized and is guaranteed by both the federal and state Constitutions in this country. 36 C.J. § 261, p. 1271.

It is sometimes held that newspapers are not to be held to the exact facts, nor to the most minute details of the transactions they publish; that what the law requires is that the publication shall be substantially true; and that mere inaccuracies, not affecting materially the purport of the article, are immaterial. 36 C.J. § 262.

As a general rule, fair and impartial reports of judicial, executive, or legislative, and sometimes other public official proceedings, are considered qualifiedly privileged. 36 C.J. § 263, p. 1276.

In most jurisdictions, a full, fair, and impartial report of a judicial proceeding is qualifiedly privileged, although the report contains matters that would otherwise be defamatory and actionable and no action will lie therefor except on proof of malice in making it.

If the proceeding relates to a matter within the jurisdiction of the court, the report is privileged, regardless of how the jurisdiction was invoked or exercised, or whether it had jurisdiction of the person. Fair and accurate reports of proceedings in police courts...