Strycker v. Levell and Peterson

• Decision Date: 09 March 1948
• Citation: 190 P.2d 922,183 Or. 59
• Parties: STRYCKER <I>v.</I> LEVELL and PETERSON
• Court: Oregon Supreme Court

183 Or. 59

190 P.2d 922

STRYCKERv.

LEVELL and PETERSON

Supreme Court of Oregon.

Argued January 21, 1948.

Affirmed March 9, 1948.

Pleading — Demurrer — Allegations — Complaint

1. On demurrer, allegations of complaint must be considered to be true.

Libel and slander — Affidavits — Actionable — Privileged

2. Words in affidavits charging that woman was immoral, dissolute, and addicted to use of intoxicating liquor, constituted actionable libel unless the words were privileged.

Libel and slander — Judicial proceeding — Privilege

3. A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding or in institution of or during course and as a part of a judicial proceeding in which he participates, if the matter has some relation thereto.

Libel and slander — Divorce action — Affidavits — Privileged

4. On motion by divorced husband in divorce action for an order that his children whose custody had been awarded to wife be kept free from influence of immoral persons, charges in affidavits of husband and former husband of wife's mother who allegedly lived with wife, that wife's mother was immoral and dissolute, were privileged, and it was incumbent on wife's mother in her libel action to allege facts showing that the charges were irrelevant to the issue in the divorce action, and, on her failure to do so, complaint was properly dismissed.

Libel and slander — Privilege — Name of an action

5. Plaintiff in libel action could not avoid defense of privilege which appeared in her own complaint, by giving to the libel action the name of an action on the case for conspiracy.

                  See note, 44 A.L.R. 389
                  33 Am. Jur. 173
                  53 C.J.S., Libel and Slander § 104
                

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Elton Watkins, of Portland, argued the cause and filed a brief for appellant.

Harry G. Hoy, of Portland, argued the cause for respondents. With him on the brief was Arthur E. Prag, of Portland.

Before ROSSMAN, Chief Justice, and LUSK, BAILEY, BRAND and HAY, Justices.

Action for libel. Defendant's demurrer to the complaint was sustained and on plaintiff's refusal to plead further, the case was dismissed. Plaintiff appeals.

AFFIRMED.

BRAND, J.

1. This is a companion case to, and rose out of the litigation in the case of Levell v. Levell, decided March 2, 1948. The allegations of the complaint which on demurrer must be considered true, establish for present purposes the following facts: Lura H. Strycker is the mother of Esther M. Levell, divorced wife of defendant David W. Levell. The defendant, Albert Peterson is the former husband of the plaintiff, Lura H. Strycker. Esther M. Levell secured a decree of divorce from the defendant David W. Levell, together with the custody of two infant children. The decree required the father, David W. Levell to contribute $50.00 per month for the support of the children and gave to the father the reasonable right of visitation.

The complaint alleges that the father, David W. Levell filed in the divorce suit a motion for the modification of the decree as follows:

"COMES now the defendant and respectfully applies to the above entitled Court for an order thereof modifying the decree heretofore made and entered in the above entitled case so that the said decree as modified will contain a provision that the children must be kept within the jurisdiction of the Court and are not to be removed therefrom, except upon order of the Court after ample notice to the opposing party and on opportunity to be heard thereon and that while the said children are not kept within the jurisdiction of the Court the provision for the payment of support money shall be suspended, and that while the plaintiff has the custody of the children, the said children shall be kept free from the influence of and association with immoral persons.

"This Motion is based upon the records and files in the above entitled suit and upon the affidavit of the defendant which is hereunto annexed and by this reference made a part and parcel hereof."

In support of his motion for an order that "the said children shall be kept free from the influence of and association with immoral persons", the complaint alleges that the defendant, David W. Levell filed an affidavit which reads in part as follows:

"* * * I am disturbed at the fact that the plaintiff apparently has her mother as a member of the household, the mother being a person of lax morals and with a very strong hatred for this plaintiff. I feel that it is not fair to me that the plaintiff's mother should be in the household with my children, as she is not a fit or proper person to associate with growing children, and she has such an unreasonable dislike for me that it is certain she will endeavor to prejudice the children against me."

In answer to the motion and affidavit of the defendant David W. Levell, the complaint further alleges that the plaintiff, Lura Strycker filed an affidavit in the supplemental proceedings in the divorce suit stating that she resided in San Francisco, California where she was employed. That Esther Levell and her children lived in Vallejo, California, and that "* * * the affidavit of David W. Levell that this plaintiff was living with and as a member of the household of the said Esther M. Levell and her children was untrue."

It will be observed that the complaint in the libel suit does not affirmatively state that Mrs. Strycker was not living as a member of the household of her daughter, Esther, but only states that she once made an affidavit to that effect. The complaint further alleges that in February, 1947, David Levell and Al Peterson conspired fraudulently and maliciously to injure plaintiff's good name by filing further affidavits in the divorce suit. We quote the material portions of the affidavits so filed. The affidavit of David Levell is in part as follows:

"On my visit to the home of Esther M. Levell on the afternoon before Christmas, I did not state, as alleged by her mother in her affidavit, that I had a legal right to see her, my ex-wife. I did state that I felt I had a legal right to see my children. It is not true that Esther's mother offered to bring the children to me * * *. I had no opportunity to talk with anyone there because Mrs. Strycker, when I asked to see the children, slammed the door in my face and locked it from the inside. * * *"

"While I did not state in my affidavit, to which reference is hereby made, that my ex-wife's mother lives with her, I did state that she apparently was living in that home. I made this statement because my ex-wife had written me to send a letter to her General Delivery stating what hotel I was stopping at and she would send the children to the hotel with her mother. I assumed from that statement that her mother was probably living with her. That the mother is a woman of low morals is well known to me and is also well known to her daughter, Esther M. Levell, and the statement made in her affidavit to the effect that her mother is not a woman of low morals is absolutely and knowingly false. While we were living together as husband and wife we formerly attended dances on the Battleship Oregon and similar affairs, and Esther's mother would frequently be there and on many occasions was drunk and on many occasions we found her in compromising positions with various men who attended the said dances. It was a matter of common knowledge with us, and of more than occasional comment between us, that her mother was lax morally. * * * I believed implicitly in my then wife, and I had married her with knowledge of some of her mother's shortcomings because I had seen the mother intoxicated and I had seen her in bed with a strange man in Roseburg at the Eagles convention which was...