Mannix v. Portland Telegram

Citation136 Or. 474,300 P. 350
PartiesMANNIX v. PORTLAND TELEGRAM.
Decision Date09 June 1931
CourtSupreme Court of Oregon

In Banc.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 297 P. 350.

See also, 284 P. 837.

BEAN C.J., and CAMPBELL, J., dissenting.

Joseph, Haney & Veatch, of Portland, for appellant.

Frank J. Lonergan, Thomas G. Greene, John A. Collier, E. B Seabrook, W. Lair Thompson, Nicholas Jaureguy, and J. O Bailey, all of Portland, for respondent.

John W. Kaste, of Portland, amicus curiæ.

KELLY, J.

In a petition for rehearing, our attention is called to the fact that defendant requested an instruction similar to the one given by the court that in the assessment of damages consideration might be given by the jury to the effect of the publication upon the plaintiff's reputation and standing as a lawyer. In our original opinion, 297 P. 350, we held that the giving of this instruction constituted error. It is now argued that, if any error was committed by the court in that respect, it was invited error and not available as grounds of reversal.

The learned judge of the trial court did not refer to defendant's request when defendant excepted to the giving of this instruction; and the writer was governed by the thought that attention would have been called to the request for such instruction at that time if any such request had been made.

Whether this court should suffer a judgment for $35,000 to stand when based upon instructions as to law, which this court deems to be erroneous merely because such error was invited by counsel for the unsuccessful party, is a question not necessary in passing upon this motion for a rehearing.

Basically the theory of pleading is that it is the means whereby the parties litigant make known to each other the facts upon which they rely and the nature of the relief sought. In the case at bar, there is no allegation in the second amended complaint that the published article affected plaintiff in his capacity as a lawyer. There is no allegation that, as a lawyer, he lost any business because of it. On principle, this amended complaint is insufficient to support a recovery either upon the ground of injury to his standing as a lawyer, or upon the ground of loss of business.

Plaintiff insists that the court should follow the doctrine of Sanderson v. Caldwell, 45 N.Y. 398, 6 Am. Dec. 105. In this connection, it is well to bear in mind that in this New York case, repeatedly insisted upon by plaintiff as the controlling precedent by which this court at all hazards must be governed, after averring that the plaintiff at the time of the publication complained of was a practicing lawyer and after setting out the libelous article, the complaint alleges: "That said defendants in said libel referred to meant plaintiff in this action and did by such article charge and intend to charge the plaintiff with being in the habit of the use of spirituous liquors to excess or to intoxication and to such a degree of intoxication as to disqualify him for the proper transaction of his professional business and of impropriety, dishonesty, and fraudulently obtaining money of and from the soldiers and sailors of his district, the boys in blue; and did also in and by said libel charge and intend to charge the plaintiff with taking advantage of the soldiers and sailors in his professional capacity as lawyer and in making unfair, unreasonable, and extortionate charges against them for professional services and with compelling them to pay such charges."

The writer is of the opinion that in a case where the defect appearing in the case at bar is not manifest in the pleadings we can find no basis by which we may be guided, even though statements unnecessary to the decision in such case appear therein.

The report of Pattangall v. Mooers, 113 Me. 412, 94 A. 561, L. R. A. 1918E, 14, Ann. Cas. 1917D, 689, does not specifically set forth the allegations of the complaint, nor is the sufficiency of the complaint discussed, but the opening sentence of the opinion is as follows: "This is an action for slander for certain oral statements by the defendant, alleged to be false and defamatory, and to have been made maliciously concerning the plaintiff, with intent to injure him in his good name and reputation as an attorney at law, and likely to so injure him."

In Williams v. Hicks, 159 Wis. 90, 150 N.W. 183, 184, it is said in the statement of the case by the court: "Plaintiff was a lawyer in good standing and it was claimed that the article in question was willfully and maliciously composed and published with intent to injure him in his good name and fame as a lawyer and to bring him into public contempt and ridicule."

The complaint contained allegations to the effect stated, and also all the essential allegations to support a recovery.

In Cyrowski v. Polish-American Publishing Co., 196 Mich. 648, 163 N.W. 58, 61, we find this statement: "The plaintiff claimed that he had become a leader among the Polish people, and that he had established himself in a position of trust and confidence among them, and as a result of the libelous attack his good reputation was destroyed, which resulted in great pecuniary damage to him in the loss of business as a practicing attorney. This element of damage is particularly set forth in the declaration."

In Krug v. Pitass, 162 N.Y. 154, 56 N.E. 526, 76 Am. St. Rep. 317, the sufficiency of the complaint is not discussed.

In Moore v. Francis, 121 N.Y. 199, 23 N.E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810, the sufficiency of the complaint is not discussed.

In Kutcher v. Post Printing Co., 23 Wyo. 178, 147 P. 517, 518, 149 P. 552, the question was whether the petition stated facts upon which damages could be awarded because of the effect upon plaintiff in relation to his incumbency in the office of mayor. We quote the sixth paragraph of the petition:

"Sixth. That in and by said words and matter hereinabove quoted and set forth and so published by the defendants as aforesaid the said defendants, among other things intended to, and did, accuse the said plaintiff of, and then and there and thereby intended to convey, and did convey, to the readers of said newspaper, of and concerning the plaintiff and which was by said readers so understood, each and all of the following: (a) That the said plaintiff as such said mayor of the said city of Sheridan did unlawfully permit a dive, namely, a disorderly place, to be carried on and conducted in the said city of Sheridan in violation of the laws and ordinances governing the said city of Sheridan, by the said Maple Leaf Club. (b) That the said Maple Leaf Club owned and had in its possession, within the said city of Sheridan, gambling paraphernalia at the place where it conducted said club used by its members for the purpose of gambling, and that the said plaintiff as such said mayor wrongfully and unlawfully failed to perform a duty to confiscate said gambling paraphernalia. (c) That the said plaintiff as such said mayor of the said city of Sheridan did knowingly and unlawfully permit one Toomer, within the said city of Sheridan, to violate the laws and ordinances governing the said city of Sheridan, and that the said plaintiff as such said mayor did unlawfully and corruptly protect the said Toomer in the violation of the said laws and ordinances. (d) That the said plaintiff as such said mayor of the said city of Sheridan did unlawfully and knowingly and in violation of the laws and ordinances governing the said city of Sheridan permit the said Toomer to sell liquor within the corporate limits of the said city of Sheridan on Sunday. (e) That the said plaintiff as such said mayor of said city of Sheridan did knowingly, unlawfully, and in violation of the laws, ordinances, and orders governing the said city of Sheridan, permit open violations of the said liquor laws and ordinances prohibiting the sale of liquor within the said city. (f) That the said plaintiff has wholly failed to perform the duties of his office as such said mayor of the said city of Sheridan, was and is a corrupt official, was and is guilty of malfeasance in office as such said mayor, and has connived with and protected persons within the said city of Sheridan in the violation of the laws and ordinances of the said city of Sheridan."

These are the cases relied upon to support plaintiff's claim that we erred in holding that the complaint in the case at bar should obtain an allegation that the libel affected him in his professional capacity. We will now review the cases cited by plaintiff in support of his contention that the instructions pertaining to alleged loss of business should have been given.

Ben-Oliel v. Press Publishing Co., 251 N.Y. 250, 167 N.E. 432, merely holds that the complaint in that case was not subject to demurrer because special damages were not pleaded. The question of the necessity of pleading loss of business as an element of damage in order to warrant its submission to the jury is not mentioned, referred to, or suggested.

Secor v. Harris, 18 Barb. (N. Y.) 425, holds that the alleged oral statement of defendant concerning plaintiff was actionable per se. No discussion is had with reference to the necessity of alleging loss of business in order to warrant the submission of the question of loss of business.

In Brown v. Durham (Tex. Civ. App.) 42 S.W. 331, the question decided, which most nearly approaches the one we are discussing, was whether, inasmuch as the plaintiff had alleged in his complaint: "That plaintiff was a tie contractor and that the publication was made for the sole purpose of injuring him in his character reputation and business and credit in his dealings...

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