Peck v. Coos Bay Times Pub. Co.

• Decision Date: 14 September 1927
• Parties: PECK v. COOS BAY TIMES PUB. CO. ET AL.
• Court: Oregon Supreme Court

259 P. 307

122 Or. 408

PECK v. COOS BAY TIMES PUB. CO. ET AL.

Supreme Court of Oregon

September 14, 1927

Appeal from Circuit Court, Coos County; Walter H. Evans, Judge.

Action for libel by A. K. Peck against the Coos Bay Times Publishing Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Goss & Murphy, of Marshfield, for appellants.

Peck &amp Brand, of Marshfield, for respondent.

BELT J.

Plaintiff who is a lawyer and has been engaged in the practice of his profession at Marshfield, Or., for many years, commenced this action in libel to recover damages alleged to have been sustained on account of the publication by the defendants Coos Bay Times Publishing Company and its manager and editor, M. C. Maloney, of two articles which are set forth in the complaint.

It is alleged that on May 28, 1923, the following article, which is the basis of the first cause of action, was published:

"A Bouquet of Bitter (Sweet) Peas.

"Peck and Parker and Perkins are peeved. These alleged promoters of political prestige and other prejudices propose to make the whole Pacific Coast reel and rock with their roars. Because Governor Pierce refused to do the bidding of K. K.--we mean A. K.--Peck, who seeks to be political dictator of Coos county, the very air is made vibrant with their vitriolic vaporings. These royal sons of the invisible regency threaten revolution and rebellion because their Peck-sniffian leader, He-Who-Must-Be-Obeyed, is refused recognition.

"The Times understands from excellent authority that J. E. Norton stood an excellent chance of securing the appointment as highway commissioner, until the daily news came out with its front page pronunciamento telling Governor Pierce that he had to take certain action and threatening secession of the entire 300 (?) stockholders if he didn't. Then the Governor manifested a little of the 100 per cent. American independence that Peck puffs about and refused to accept the dictatorship of Peck, the would-be Cæsar of Coos. The result is another thunderbolt from the terrible trio of terrorists. The front page reeks with red threats of rebellion. We do not know whether the K. in K. K.--we mean A. K. Peck--stands for King, Kleagle, or Kounselor, but anyway, all his subjects in southwestern Oregon are going to secede. Governor Pierce is going to feel the power of their vengeance. The coronet, we mean the coroner department of the Klose Korporation, is already preparing to sit on the political corpse of the governor. Peck, Parker, and Perkins are to administer the poison pen. A. B. Gidley has the contract to grunt and put up a front. Lionel Gordon will slap the Governor on the wrist, so there, now, and Wilson, Fred Wilson, the go get 'em coroner and burial director of the Klose Korporation, he will care for the political corpse.

"It is not known whether the seceders will form a separate state or a new empire. But something must be done to soothe the stockholders and prove the power and prestige of Peck, which seems to be sadly on the wane. He has failed now in several of his political promotions sKeams from Governor to postmaster.

"And why, forsooth, this tempest in a teapot by these blood-sweating behemoths of political bunKum?

"And who, pray, are these white-robed angels of purity who prate prettily of political gratitude?

"Why should political ingrates and renegade republicans who repudiated their party and made a democrat governor of Oregon howl about political gratitude? Why should these political double-crossers yelp with pain when they are given a dose of their own medicine. K. K., we mean A. K. Peck, who has been given honors by the republican party, did his best to defeat it in the last campaign, and now because a democratic governor he helped to elect appoints a democrat to office, PecK and his associates are peeved. The P's--Peck, Parker and Perkins--are bitter; the G's--Gidley and Gordon--are grouchy, and W--Wilson--he's doubled up with colic because PecK has a pain. "The pity of it all is that Coos county should be made to suffer in recognition and prestige because of the pecksniffian policy of Peck and his associates.

"There will be few, even among Secretary Peck's stockholders, who will regard his failing political power as a tragedy. When the double-crosser is double-crossed, even when he bears a fiery cross, it seems only a fitting fate. Commercializing Christianity, promoting passion and prejudice, and making hate the cornerstone of a new cult may temporarily flourish, but the world must be made over if vices are to be transformed into virtues and political mountebanks are to become monarchs of a new invisible empire."

Innuendo was pleaded to show the sense in which plaintiff believed the above language was used and was understood by those who read the article.

For the second cause of action it is alleged that on May 29, 1923, the second article was published of and concerning plaintiff as follows:

"The Harvest of Hate.

"The propaganda of prejudice, passion and hate which is being broadcasted by K. K. Peck, or rather A. K. Peck, secretary of the Daily News Publishing Company and his associates, found its full flower and fruition and its legitimate expression in the premeditated and vicious assault of Lionel Gordon, his brother, and others on Dan E. Maloney this morning.

"Since the dawn of time and until time shall be no more, there is only one inevitable result to fanning flames of hate, and that result is always violence. The violence which found its expression in the assault made by Peck and Gordon, follows as certain as night follows day. The prejudices and passion engendered by unreasoning hate nurtured for any purpose.

"Peck has sought to promote his political fortunes and prestige by appeals to the basest of all human emotions, that of hate. He has in some manner succeeded in surrounding himself with others who ignorantly or indifferently accept his poisonous propaganda. The attacks made were the direct result of this attitude of bigotry. Whether they followed a program intended to strengthen a belief in his sincerity among some of his misguided followers or merely the flowering of his own carefully promoted passions makes no difference. The results are the same and are inevitable.

"If Peck and his henchmen think they can silence the Times by assaults on its editors or by an attempted reign of terrorism, they are as much in error as they are in the propaganda which they are spreading.

"The Coos Bay Times will continue in the future as it has in the past giving the news without fear or favor, and striking error where and when it finds it.

"No community and no nation has ever grown to greatness on hate, and never will until human nature is remade.

"The temporary growth of these cults is only fleeting and passes as all things evil must pass."

Innuendo was also pleaded with reference to the above publication. After alleging that these articles injured plaintiff in that they brought him into public hatred, contempt, and ridicule, general damages for $5,000 on each cause was demanded.

After demurrer to the complaint was overruled, the defendants answered in substance admitting the publication as alleged but denying any intent to injure plaintiff and alleging affirmatively by way of innuendo the sense in which certain words of the articles were used and were understood by the public. As to the first cause of action, defendants further plead that the publication "was true in the sense in which the words were used," and rely upon the defense of qualified privilege and that of fair comment and criticism.

Concerning the second cause of action, defendants aver that the article which is the basis thereof is true and also that the same was published under the rule of fair comment and criticism. Innuendo is also pleaded giving defendants' interpretation of the article published. In mitigation of damages and as a provocation for the publication of the second article entitled "The Harvest of Hate," it is alleged that immediately prior thereto the plaintiff assaulted the defendant, M. C. Maloney.

It is difficult from an examination of the abstract of record to ascertain with any degree of certainty what are the issues under the pleadings, but we think the above is a fair statement of the same. If we have erred in this respect the moral is obvious.

The cause was submitted to a jury and a verdict returned in favor of plaintiff for $1,500, it being therein specifically stated that $500 was upon the first cause of action and $1,000 upon the second.

Defendants base their appeal upon 79 assignments of error. We will consider only those discussed in the briefs.

Does the complaint state a cause of action? Special damages are not pleaded. Plaintiff relies upon general damages that are presumed to follow from the publication of articles libelous per se. Where articles are not actionable per se special damages must be alleged and proven. Barnett v. Phelps, 97 Or. 242, 191 P. 502, 11 A. L. R. 663; Clark v. Morrison, 80 Or. 240, 156 P. 429; Nichols v. Daily Reporter Co., 30 Utah, 74, 83 P. 573, 3 L. R. A. (N. S.) 339, 8 Ann. Cas. 841, 116 Am. St. Rep. 796, and note; Graham v. Star Publishing Co., 133 Wash. 387, 233 P. 625; 17 R. C. L. 391; 25 Cyc. 454. Not having pleaded special damages, whether plaintiff has stated a cause of action depends upon whether the articles or either of them are libelous per se. Jimeno v. Commonwealth Home Builders, 47 Cal.App. 660, 191 P. 64; 37 C.J. 35. If such were actionable per se, it was not necessary to allege special damages and to point out with particularity in what manner plaintiff was damaged.

Willetts v. Scudder, 72 Or. 535, 144 P. 87, thus defines libel: "A libel is a malicious defamation, made public...