Lee v. Paulsen

• Citation: 273 Or. 103,539 P.2d 1079
• Parties: James LEE, Appellant, v. Jack PAULSEN et al., Respondents.
• Decision Date: 09 September 1975
• Court: Supreme Court of Oregon

Page 1079

539 P.2d 1079

273 Or. 103

James LEE, Appellant, v. Jack PAULSEN et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 9, 1975.

Decided Sept. 9, 1975.

Rex Q. Smith, Portland, argued the cause for appellant. With him on the briefs were Mark M. McCulloch and Powers & McCulloch, Portland.

James H. Gidley, Portland, argued the cause for respondents. With him on the briefs were Cosgrave & Kester, Portland.

DENECKE, Justice.

The plaintiff teacher brought this defamation action against the defendants who are school officials and school board members. The trial court granted defendants' motion for an involuntary nonsuit upon the ground that the publication was absolutely privileged.

The plaintiff was a nontenured teacher. He was notified his contract was not going to be renewed. Plaintiff's attorney wrote the school district's attorney asking to be provided with the specific reasons for the nonrenewal of the contract and for a public hearing. The district's attorney replied by letter furnishing the specific reasons. He further stated that no evidence would be provided by the district at the hearing and no school officials or board members could be questioned. Plaintiff read this letter.

At the public hearing or meeting the plaintiff's attorney requested that the reasons, as contained in the letter sent to him, be stated by the board. The statements were made and this publication is charged as defamation. We will assume for the purposes of this decision that the publication is defamatory.

The cases and scholars agree that there is an absolute privilege for publications that are consented to. Sec. 583 of the Restatement of Torts provides: 'Except as stated in § 584, the publication of false and defamatory matter of another is absolutely privileged if the other consents thereto.'

It should be remembered that usually the question of whether or not a defamatory statement is privileged, either absolutely or conditionally, depends upon the balance that the court strikes between competing interests. In Ramstead v. Morgan, 219 Or. 383, 387, 347 P.2d 594 (1950), we held the communication involved was absolutely privileged because the relationship occasioning the communication was so important that the law freed the publishing party from liability regardless of the fact that the publishing party might use the occasion to publish defamatory and malicious statements. The important interest in Ramstead was having citizens communicate with the organized Bar concerning possible misconduct of attorneys. We were of the opinion that this interest was so important that the communication should be absolutely privileged.

1 Harper and James, The Law of Torts 400, § 5.17 (1956), observed that this balancing of interests is not present in cases in which absolute privilege is invoked because the plaintiff consents to or requests the publication.

'It will be noted that the * * * privilege in these cases (consent) is outside the usual rationale of the doctrine of privilege in other situations where a fine balancing of interest and/or duty supports the immunity. The fact that he was brought within the orbit of defamation by the plaintiff's contrivance does not give to the recipient any interest he did not otherwise have.'

In the consent cases Harper and James point out that no public interest is being served by encouraging publication which is free from the threat of being the subject of a defamation suit.

The reason for the imposition of the privilege when the plaintiff consents or requests the publication 'is based upon the unwillingness of the courts to let the plaintiff 'lay the foundation of a lawsuit for his own pecuniary gain. " Harper and James, supra at 400, quoting from Richardson v. Gunby, 88 Kan. 47, 54, 127 P. 533 (1912).

Prosser states:

'One who has himself invited or instigated the publication of defamatory words cannot be heard to complain of the resulting damage to his reputation; * * *.' Prosser, Torts 784, § 114 (4th Ed.1971).

Shinglemeyer v. Wright, 124 Mich. 230, 82 N.W. 887, 890 (1900), illustrates this rationale. In a private conversation between the parties the defendant charged the plaintiff with stealing his wheel. Plaintiff called a policeman. When he came she told him that the defendant had accused her of stealing his wheel and, in effect, asked him to hear the defendant's version. Defendant told the officer that the plaintiff had stolen his wheel. Plaintiff brought a slander action based upon the defendant's statement to the officer.

The court held for defendant, stating:

'In regard to the statement by defendant in the presence of the officer Henry, it was not a publication for which the law gives a remedy. She herself solicited the statement, and sent for the officer for the express purpose of having the defendant repeat the statement in his presence. It would not have been stated to him except by her invitation.' Shinglemeyer v. Wright, supra, at p. 890, starting at 3.

We emphasize that in both the present case and Shinglemeyer v. Wright, supra, when the plaintiff requested the publication he or she knew the exact language that would be used in the publication. This knowledge is essential in order for the publication to be absolutely privileged except in the circumstances present in Christensen v. Marvin, Or., 539 P.2d 1082 decided this date.

Comment D. to § 583 of the Restatement of Torts states that the communication is absolutely privileged if 'he know(s) the exact language of the publication * * *.'

Nelson v. Whitten, 272 F. 135 (E.D.N.Y., 1921) illustrates the opposite circumstances. The plaintiff had been employed by the defendant as master of a vessel. Plaintiff asked defendant for a letter respecting his services. The defendant wrote in part:

'As to your qualifications as a captain I can say you were an excellent housekeeper. Your knowledge of navigation is exceedingly meager.

'I am so much in doubt as to your loyalty and integrity that I could not conscientiously give a recommendation to any one desiring to employ you.' p. 136

The letter was published to a third party and plaintiff brought a libel action. The defendant defended upon the ground that the plaintiff had consented. The court held for plaintiff stating, 'Because of a request for such statement, plaintiff did not invite defendant to make public anything false and defamatory.' p. 136

In the present case the plaintiff did invite the defendant to make public a statement which plaintiff believed was false and defamatory. Defendants are absolutely privileged unless the publication falls within an exception to the rule that consent to publication creates an absolute privilege.

Plaintiff claims his...