Action
by Thomas Mannix against the Portland Telegram, a
corporation. Judgment for plaintiff, and defendant appeals.
Reversed
and remanded.
See
also 284 P. 837.
On the
2d day of October, 1928, being the publisher of a newspaper
in Portland, Or., known as "Portland Telegram,"
defendant published the following:
"Lawyer
Betrayed Him, Says Accused.
"Declaring
that he kept his silence as long as human endurance would
permit Harry Knight, alias Harry McDonald, held in the
Multnomah county jail on an old murder charge in Missouri
called in newspapermen Monday night and in the presence of
three reporters, one county official and two jailers
hurled at Tom Mannix, Portland attorney, to whom McDonald
said he had gone for legal advice, charges of a grave
nature, involving an alleged plot on Mannix's part to
get the fortune of Tony Neppach, a client of Mannix.
"According
to McDonald's story, Mannix had known for nearly two
years that McDonald was wanted in Missouri, McDonald having
informed him of this fact when he said he engaged Mannix as
his attorney. It was through Mannix that McDonald was
arrested. Mannix stated he had become suspicious of Knight
known then in Portland as Harry McDonald, and had traced
him through Bertillon records. McDonald also accused Mannix
of 'bleeding' him. McDonald said that since the
first of the year he had paid Mannix sums ranging from $100
to $500 at various times.
"Mannix
Denies Charges.
"When
the Telegram informed Mr. Mannix of McDonald's charges
he branded them as 'utterly false.' He denied that
he conferred with McDonald as his attorney or that he knew
McDonald was wanted in the East for jumping bail on a
sentence for murder, until a few days ago.
"
'A man named Nelson gave me the tip a week ago
concerning McDonald being wanted in Missouri' Mannix
said. 'I have been McDonald's constant enemy since
I met him in June and from time to time I warned Mr
Neppach against him. It was on this tip that we traced down
his record and he was identified.'
"Mannix
said McDonald 'propositioned him' to trim Neppach
and that he flatly refused to enter into such a deal and
again warned Neppach that McDonald 'was crooked and out
to get his money.'
"Neppach
Lauds Attorney.
"Neppach
said Mannix told him that 'McDonald was out to trim
me.' Neppach said his dealings with Mannix had
convinced him that Mannix was above reproach and that
'McDonald was trying to trim both of them.'
"
'McDonald's charges are ridiculous and false'
said Mannix. 'I never took a nickel from McDonald and
there are attorneys who know it.'
"McDonald
told how he constantly was fearful that Mannix would betray
him. 'I took him into my confidence as my attorney'
McDonald said, 'and told him everything. Mannix told
how he traced me through police records. That's all
bunk. He knew who I was because I had told him. He betrayed
the confidence of a client.'
"Prisoner
Tells Story.
"McDonald's
statement in brief, follows:
"
'When I came to Portland I wanted to go into business
before the public and I inquired around for an attorney.
Tom Mannix was recommended and I went to him. I took him
out to my house and in the presence of my wife I told him
the whole story of how I was accused wrongfully in
Missouri, tried and convicted. He said he would regard my
statements as those of a client to his attorney.
"
'It was during the time Condit & Conser were going
through bankruptcy that I was asked to take over the
business. At that time I had a furniture business. Tony
Neppach, who was financially involved in the Condit &
Conser concern, told me he would back me and that he would
loan me all the money I wanted to operate the new
venture.'
"Says
Home Visited.
"
'It was about this time that Mannix came to my home at
1062 Union Avenue North and made me a proposition, which I
turned down. I told him I did business on the square and
that I wouldn't go that route. Mannix said he was very
powerful in Portland. He told me he owed Neppach several
thousand dollars and that Neppach was getting old and had
no heirs to give his fortune to. He said we both could make
some money.
"
' "What do you mean?" I asked him.
"
' "You know what I mean," Mannix said to me.
"
' "You know my name and you've got the dope on
me," I said to Mannix. "But you can't go that
route." '
"Promise
Recounted.
"
'I told Mannix that I couldn't do business with a
man who wasn't on the square and that I would get
another attorney. He promised not to tell who I was. So I
got Dan Powers to represent me. Mannix came to me later and
told me I had made the mistake of my life.
"
'Next thing I knew I was arrested on the charge of
larceny by bailee, involving the sale of five cars.
Neppach, who brought the charge through Mannix, then had
control of all my property and was amply secured for any
business dealings I might make. I was paying him 1 per
cent. interest on all moneys involved in each sale besides
8 per cent. on the loans he had made me.
"
'Well, I felt uneasy, I knew I would have to go before
the federal court. So I again went to Mannix and I said to
him, "Tom, you know who I am. You wouldn't ask me
my name in court, would you?"
"
'He said, "Oh forget it. We'll fight it out.
If you win, all right, and if I win, all right." '
"McDonald
Uneasy.
"
'His actions made me more uneasy than ever. I learned
that he and Dan Powers once had law offices together, and
so I went to Powers and asked him if Mannix would betray a
confidence. He wanted to know why I asked, but I refused to
tell him. He said Mannix had always been square.
"
'I gave Mannix various sums, ranging from $100 to $500,
to keep mum. He said to me one day as he smiled, "You
know this is but a loan."
"
'The next I knew I was arrested at the fairgrounds in
Salem. I called Dan Powers and told him the only man in
Portland who knew of the old charge in Missouri was Mannix.
"
'I learned also that Mannix and another lawyer A. L.
Wirin, in my absence, had gone to my office and represented
themselves to be attorneys representing trustees, and
seized all my papers and personal effects.'
"McDonald
said he wanted it understood that no official had protected
him while he lived in Portland as Harry Knight. He said the
only man who knew his secret was Mannix. He said the total
amount he had paid Mannix in 'hush' money would
amount to between $2,000 and $2,500. He declared that he
would not have involved Mannix had it not been for the fact
that when he was taken into federal court Monday to be
examined as to his assets in the bankruptcy proceedings
Mannix had brought for Neppach, Mannix 'razzed' him
about his true name and made references to his trouble in
Missouri. 'That broke the camel's back,' he
said.
"McDonald
related a long story about the Missouri affair, declaring
he did not kill the man he was convicted of killing. He
said he had been framed. He also denied that he was
involved in a bank holdup."
On
February 8, 1929, plaintiff instituted this action to recover
damages because of such publication.
On July
6, 1929, an amended complaint was filed.
In his
amended complaint, among other things, plaintiff alleges that
he is a lawyer by profession; that for several years past he
has been the attorney for A. Neppach; that he never received
from Harry Knight, alias McDonald, any sum whatsoever; that
at no time was there any relation of attorney and client
between plaintiff and said Knight, alias McDonald; that
defendant published said article willfully, maliciously and
falsely, and without just cause and with actual malice; that
plaintiff has practiced his profession in Portland since
1911, and has enjoyed a large and lucrative practice and has
never betrayed any one's confidence directly or
indirectly, and the profession of law upholds as one of its
chief canons of ethics the duty of a lawyer, at every peril
to himself, to regard as sacred the information received by
him from clients. And, further, the betrayal of a client is
viewed by the legal profession, as well as by every one else,
with peculiar abhorrence, and therefore the publication of
the aforesaid libel has brought this plaintiff into the
public hatred and contempt of those who read the aforesaid
libel and believe it and the public generally. Plaintiff
alleges actual damages in the sum of $75,000, and punitive
damages in the sum of $25,000, because of said publication.
In its
answer, defendant admits that it published said article,
denies that it was a libel or false or malicious, and
affirmatively alleges that said article was and is a fair
statement of the facts and circumstances which occurred at
the time and place mentioned therein, and is a true and
correct account of what was said and done by the parties
mentioned in said article; and that said article was not
published with malicious intent.
The
material allegations of the answer are denied in the reply,
except as the same are alleged in the amended complaint.
Defendant
contends that the circuit court erred in refusing defendant
the right to cross-examine plaintiff concerning
plaintiff's testimony that defendant had made prior
attacks upon plaintiff.
In his
direct examination, plaintiff testified to the circumstances
under which he was first apprised of the alleged statements
contained in the article published:
"Q.
Under what circumstances did you learn that? * * * A. About
7:30 in the morning or a quarter to eight I was called on
the telephone by Mr. Phillips--no, a man named Bailey, who
was a reporter for the Telegram, Seth Bailey, I think his
name was.
"Q.
He told you who he was over the...
