Mannix v. Portland Telegram

• Decision Date: 20 June 1933
• Citation: 144 Or. 172,23 P.2d 138
• Parties: MANNIX v. PORTLAND TELEGRAM.
• Court: Oregon Supreme Court

23 P.2d 138

144 Or. 172

MANNIX v. PORTLAND TELEGRAM.

Supreme Court of Oregon

June 20, 1933

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Heaitt, Judge.

Action by Marie E. Mannix, administratrix of the estate of Thomas Mannix, deceased, substituted for Thomas Mannix as plaintiff against the Portland Telegram, for libel. From judgment for plaintiff, defendant appeals.

Affirmed.

This is an appeal from a judgment rendered in the circuit court of Multnomah county, in an action by Thomas Mannix against the Portland Telegram, a corporation, for damages for libel. The judgment is for $18,000 actual damages and $15,000 punitive damages. The case was formerly appealed to this court. See Mannix v. The Portland Telegram, 136 Or. 474, 284 P 837, 297 P. 350, 300 P. 350.

The action is based on an article published on October 2, 1928 in the Portland Telegram, a newspaper published in Portland by the defendant corporation. The article reads as follows:

"Lawyer Betrayed Him Says Accused.

"Declaring that he had 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' 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 Henry 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 I 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 a 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 money 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."'

"M'Donald 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 fair grounds 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."

Defendant's answer admits that it published the article; denies that it was a libel or false or malicious; affirmatively alleges that the article was a fair statement of the facts and circumstances which occurred at the time and place mentioned therein, and that it was not published with malicious intent. The reply put in issue the material allegations of the answer, except as alleged in the complaint.

ROSSMAN J., dissenting.

Competent evidence as to reputation of plaintiff in libel action should relate to time of publication of the libel and before.

John M. Pipes and John C. Veatch, both of Portland (Joseph, Haney & Veatch and John M. Pipes, all of Portland, on the brief), for appellant.

Frank J. Lonergan, of Portland (Lonergan & Wagner, of Portland, on the brief), for respondent.

The complaint was amended before the trial so as to conform to the decision of this court on the former appeal, by alleging plaintiff's good standing as a lawyer. Upon the trial, the defendant contended that it published the story as a news item and without malice. As held upon the former appeal, the publication set forth is libelous per se.

Soon after this action was commenced, on October 19, 1928, the deposition of Harry McDonald was taken before Judge Kanzler in his courtroom in Multnomah county. The deposition was not used upon the trial of the cause. On October 19 the defendant published an account of the taking of the deposition. This article was headed: "Knight Reiterates His Charges against Mannix in Warm Court Session." Next, in type larger than the type of the article, appears the following: "Before Presiding Circuit Judge Kanzler, whose court room was crowded with prominent Portland attorneys and several circuit judges who sat as spectators, Harry Knight, alias McDonald, late Thursday reiterated charges which he made against Tom Mannix, Portland attorney, two weeks ago in an interview given out in jail."

The text of the article was of similar import to the publication of October 2, on which the complaint is based. The publication was received in evidence over defendant's objection and introduced as an exhibit. This ruling was assigned as error.

The defendant contends that the taking of the...