Ramstead v. Morgan

• Citation: 347 P.2d 594,77 A.L.R.2d 481,219 Or. 383
• Parties: , 77 A.L.R.2d 481 Gordon A. RAMSTEAD, Appellant, v. Lester MORGAN, Respondent.
• Decision Date: 16 December 1959
• Court: Supreme Court of Oregon

Page 594

347 P.2d 594

219 Or. 383, 77 A.L.R.2d 481

Gordon A. RAMSTEAD, Appellant, v. Lester MORGAN, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 12, 1959.

Decided Dec. 16, 1959.

Gordon A. Ramstead, Eugene, in pro. per. With him on the brief was B. G. Skulason, Portland.

Windsor Calkins, Eugene, for respondent. On the brief was Clyde N. Johnston, Eugene.

Robert F. Maguire, Portland, for Oregon State Bar as amicus curiae. With him on the brief was Curtis W. Cutsforth, Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL and REDDING, JJ.

O'CONNELL, Justice.

This is an action of libel. Plaintiff is an attorney duly licensed to practice law in this state. The alleged libelous statements were contained in a letter written to the chairman of the Lane County grievance committee of the Oregon State Bar. The letter is set out below. The defendant answered, pleading truth, privilege and mitigation. After plaintiff had begun to testify defendant interposed an objection on the ground that the letter did not contain defamatory matter and on the further ground that if it did the statements made in the letter were privileged under ORS 9.550. The trial court sustained the objection on the ground that the statements contained in the defendant's letter, if defamatory, were absolutely privileged. The plaintiff appeals from a judgment of involuntary nonsuit.

The letter written by the defendant to the grievance committee of the Bar read as follows:

'Junction City, Oregon

'June 15, 1956

'Robert B. Carmichael, Chairman

'Lane County Grievance Committee

'U. S. National Bank Building

'Springfield, Oregon

'Dear Sir:

'Prior to February 5, 1951, the undersigned had regularly employed Gordon A. Ramstead as his attorney. On February 5, 1951 I went to the office of Mr. Ramstead and left with him a check for $4,000.00, with instructions he was not to deliver the same until such time as he was assured that title to certain timber lands which I had agreed to purchase from Pearl Clark Kelly and Allen Kelly, her husband, were free and clear of all encumbrances.

'I am a logger by occupation and I explained to Mr. Ramstead, my attorney, that I did not have time to handle the matter and requested he go ahead and pay the money when he knew that I was fully protected, which Mr. Ramstead agreed to do.

'At that time there was a lawsuit pending in Douglas County concerning this timber land, about which I knew nothing but about which Mr. Ramstead was fully aware. Mr. Ramstead cashed the check on February 8, 1951, and disbursed the money to Mr. and Mrs. Kelly shortly thereafter.

'I have been informed that at that time the Kellys owed Mr. Ramstead some money, that he deducted his fee from the $4,000.00 and in addition, Mr. Ramstead withheld $93.00 from the money he paid to the Kellys for expenses. A photostatic copy of the check and the endorsements thereon is enclosed with this letter.

'Some time later my wife and I were in Mr. Ramstead's office and he told me he had prepared a contract he wanted my wife and myself to sign. A photostatic copy of the contract is also enclosed. My wife refused to sign the contract because it was not in accordance with our original agreement. However, Mr. Ramstead advised me that I would have to sign it, which I did.

'This contract, although it bears the date of February 5, 1951, was not prepared and signed until after he had expended the money in violation of our contract and agreement. The Kellys did not sign the contract at the time I did.

'I am writing this letter for the purpose of filing a charge before the Grievance Committee against Gordon A. Ramstead for what I have been advised is unethical conduct on his part. I desire that the Bar Association inquire as to whether or not Mr. Ramstead was also representing the Kellys at the time, and whether or not the relationship of client and attorney existed between Mr. Ramstead and the Kellys at the time I delivered the money to him.

'I might and that Mr. and Mrs. Kelly lost the lawsuit in Douglas County, the Court decreeing they had no interest in the property above mentioned; the Kellys are insolvent and I have no means of collecting anything from them.

'My wife and I are willing to appear before your Committee and testify at any time you may desire. I live at Junction City, and my phone number is WY 82567.

'Respectfully submitted,

's/ Lester Morgan

'cc: Mr. John H. Holloway

'Secretary, Oregon State Bar

'502 Pittock Block

'Portland 5, Oregon

'Encls. 2'

The controlling issue on appeal is whether the defendant was protected by an absolute privilege in making the statements contained in the letter set out above.

The absolute privilege to publish defamatory matter under the circumstances to which the privilege applies is based upon the ground that 'there are certain relations of life in which it is so important that the persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, and in order that their duties may be carried on freely and without fear of any action being brought against them, it says: 'We will treat as absolutely privileged any statement made in the performance of these duties.'' Moore v. Weaver, 2 K.B. 520, 521 (1928). Generally to the same effect see Moore v. Sater, 1959, 215 Or. 417, 335 P.2d 843; Grubb v. Johnson, 1955, 205 Or. 624, 289 P.2d 1067; Gatley on Libel and Slander (4th ed.), p. 168 et seq.; Newell, Slander and Libel (4th ed.), p. 387 et seq.; Odgers on Libel and Slander (6th ed.), p. 187; O'Sullivan and Brown, The Law of Defamation, p. 56; Prosser on Torts (2d ed.) 607, § 95; 3 Restatement, Torts, Intro. note Ch. 25, Title B, p. 223; Veeder, Absolute Immunity in Defamation, 9 Colum.L.Rev. 463 (1909).

The absolute immunity attaches to statements made in the course of, or incident to a judicial proceeding. McKinney v. Cooper, 1940, 163 Or. 512, 98 P.2d 711 (objections to estate accounting); Irwin v. Ashurst, 1938, 158 Or. 61, 74 P.2d 1127 (judge and counsel); Pitts v. King, 1932, 141 Or. 23, 15 P.2d 379, 472 (pleadings). And so, statements made by parties, witnesses, and affiants are included within the privilege. Parker v. Title & Trust Co., 9 Cir., 1956, 233 F.2d 505, rehearing denied 9 Cir., 237 F.2d 423 (party); Strycker v. Levell & Peterson, 1948, 183 Or. 59, 190 P.2d 922 (party and affiant); Cooper v. Phipps, 1893, 24 Or. 357, 33 P. 985, 22 L.R.A. 836 (witness); 3 Restatement, Torts 231-234, §§ 587, 588.

The rule of absolute privilege is applicable not only to judicial proceedings but to quasi-judicial proceedings as well. Smith v. O'Brien, 1937, 66 App.D.C. 387, 88 F.2d 769 (statement by Tariff Commissioner); McAlister & Co. v. Jenkins, 1926, 214 Ky. 802, 284 S.W. 88 (findings of Real Estate Commission); 1 Harper & James 427, § 5.23 (1956).

Statements made before various administrative boards and commissions have been recognized as absolutely privileged. Simpson v. Oil Transfer Corporation, D.C.N.D.N.Y.1948, 75 F.Supp. 819 (former employer's letter to Labor Department); Duncan v. Atchison, T. & S. F. R. Co., 9 Cir., 1896, 72 F. 808 (pleading before Interstate Commerce Commission); Parker v. Kirkland, 1939, 298 Ill.App. 340, 18 N.E.2d 709 (statement before county Tax Appeal Board); Kimball v. Ryan, 1936, 283 Ill.App. 456 (written objections submitted to Election Board); Haskell v. Perkins, 1911, 165 Ill.App. 144 (charges filed before Board of Education); Jarman v. Offutt, 1954, 239 N.C. 468, 80 S.E.2d 248 (affidavit to Lunacy Commission); Fenning v. S. G. Holding Corp., 1957, 47 N.J.Super. 110, 135 A.2d 346 (landlord's letter filed with Rent Control Authority replying to tenant's objections to rent increase); Rainier's Dairies v. Raritan Valley Farms, Inc., 1955, 19 N.J. 552, 117 A.2d 889 (petition to Director of Milk Industry); Pacific Employers Inc. Co. v. Adams, 1946, 196 Okl. 597, 168 P.2d 105 (physician's report attached to motion made to Industrial Accident Commission); Aransas Harbor Terminal Ry. Co. v. Taber, Tex. Com.App.1921, 235 S.W. 841 (letter in answer to complaint filed before Railroad Commission); Connellee v. Blanton, Tex.Civ.App.1913, 163 S.W. 404 (application to Governor for pardon); Higgins v. Williams Pocahontas Coal Co., 1927, 103 W.Va. 504, 138 S.E. 112 (statement by company to Workmen's Compensation Commissioner after award had been made); Larkin v. Noonan, 1865, 19 Wis. 82 (petition to Governor for removal of a sheriff).

We have held that statements made in a petition to the probate court by friends of plaintiff's client protesting the appointment of plaintiff as guardian were absolutely privileged. Moore v. Sater, supra. Cf., Gregory v. State Industrial Accident Commission, 1955, 205 Or. 643, 288 P.2d 1069, where the privilege was not recognized because the proceedings were ministerial rather than judicial or quasi-judicial.

The privilege is made applicable to proceedings before administrative bodies having the power to grant and revoke licenses. Lininger v. Knight, 1951, 123 Colo. 213, 226 P.2d 809 (petition to County Commissioners requesting revocation of liquor license); Powers v. Vaughan, 1945, 312 Mich. 297, 20 N.W.2d 196 (information given to Common Council considering issuance of license to a masseur); Shumway v. Warrick, 1922, 108 Neb. 652, 189 N.W. 301 (letter to Banking Board protesting grant of charter to plaintiff); Alagna v. New York & Cuba Mail S. S. Co., 1935, 155 Misc. 796, 279 N.Y.S. 319 (letter to Federal Radio Commission); Independent Life Ins. Co. v. Rodgers, 1933, 165 Tenn. 447, 55 S.W.2d 767 (statement to State Insurance Commissioner); Reagan v. Guardian Life Ins. Co., 1942, 140 Tex. 105, 166 S.W.2d 909 (statement to Board of Insurance Commissioners). Some courts have held that statements made to licensing agencies are entitled only to a qualified privilege. Walker v. Hunter, 1929, 86 Colo. 483, 283 P. 48 (petition to County...