Quigley v. McGee

• Decision Date: 05 January 1885
• Parties: QUIGLEY v. McGEE.
• Court: Oregon Supreme Court

5 P. 347

12 Or. 22

QUIGLEY v. McGEE.

Supreme Court of Oregon

January 5, 1885

Appeal from Multnomah county.

A Lenhart, for appellant.

James Gleason, for respondent.

WALDO, C.J.

This is an action of slander, for calling the plaintiff a thief. The obvious import of this language was to impute to the plaintiff the felonious taking of property, or larceny, ( Dunnel v. Fiske, 11 Metc. 554,) and the words are actionable though the defendant meant but to impute petit larceny; for "to accuse one of petit larceny will bear action, and for that the offender shall be whipped." Whitacre v. Hillidell, Aleyn, 11. This is still good law, though the offender be no longer whipped. The material element which lies at the foundation of the action of slander is social disgrace, or damages to character in the opinion of other men. Davis v. Werden, 13 Gray, 305; 1 Amer.Lead.Cas. (5th Ed.) 113. The observations in Harrison v. Thornborough, Gilb.Cas. 117, rest on this principle: "PARKER, C.J.," runs the report "remembered a saying of TREBY, C.J., that people should not be discouraged that put their trust in the law; for if men could not have a remedy at law for such slanders, they would be apt to carve it for themselves, which would let in all the ill consequences of private revenge." See, also Baker v. Pierce, Holt. 655; S.C. 2 Ld.Raym. 960; Naben v. Miecock, Skinner, 183. Now, "if people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution." Holmes, Com.Law, 41, 42.

In Krebs v. Oliver, 12 Gray, 239, it was held actionable to impute a crime, although the party, as alleged, suffered the penalty of the law, or was no longer exposed to the danger of punishment. BIGELOW, J., cited, with other cases, Boston v. Tatam, Cro.Jac. 623, where it was said: "And it is a great slander to be once a thief, for although a pardon may discharge him of the punishment, yet the scandal of the offense remains; for poena potest redimi; culpa perennis erit." In Jones v. Herne, 2 Wils. 87, WILLES C.J., said that if it were now res integra, he should hold calling a man a rogue or a woman a whore, in public company, were actionable. But, if this were so, it should seem, according to the formative principles of the common law, that all other words uttered in public company that "sound in great discredit of the plaintiff," or cast a stain on his character, should in like manner be actionable. A practical standard must be fixed, and a time necessarily arbitrary be put, somewhere to these actions, else there were cause for the fears of Chief Justice VAUGHN in King v. Lake, 2 Vent. 28, that "the growth of these actions would spoil all communications."

The rule in Massachusetts seems to be that words generally are actionable in themselves when they impute an offense to which the law attaches a disgraceful or infamous punishment, or impute a punishable offense of a disgraceful or infamous character. Miller v. Parish, 8 Pick. 384; Brown v. Nickerson, 5 Gray, 1; Kenney v. McLaughlin, 5 Gray, 5; Krebs v. Oliver, 12 Gray, 239; Buckley v. O'Neil, 113 Mass. 193; Pollard v. Lyon, 91 U.S. 232, 233; Onslow v. Horne, 3 Wils. 177; 1 Amer.Lead.Cas. 98.

It is said that malice is an essential ingredient in slander. There is a singular and practical illustration of this principle in Brook v. Montague, Cro.Jac. 91, where Coke, arguing at the bar, cited a case where a parson in a sermon "recited a story out of Fox's Martyrology, that one Greenwood, being a perjured person and a great persecutor had...